Tekle Ex Rel. Tekle v. United States

Wynеr, respondent applied as stitutional found jury case in this and unconstitutionally not ordinance sign id. See Advantage. applied in a resulted judgment final Because as to violation constitutional no

finding of Ad- wrong to find would

Advantage, id. See party. prevailing a

vantage victo- transient achieves

(“A who plaintiff gain no can action of an the threshold

ry at if, fee-shifting provision under award initial her litigation, of the end

at the court- leaves she undone is

success emptyhanded.”).

house preliminary of the issuance Because legal alter the materially did not

injunction Advan- parties,

relationship between under party prevailing

tage judg- affirm 1988(b). therefore We

§ court. district of the

ment minor, by and TEKLE, a

Ephraim Litem, Ad

through Guardian his Plaintiff-Appellant, Tekle,

Lily America; To Garo STATES

UNITED Boden; Charles rossian; Keith Jankowski;

McCalmont; Thomas em Hawkes, agents all M.

David Ser Revenue Internal

ployees United States agency

vice, an Defendants-Appellees.

America, 04-55026.

No. Appeals, Court States

United Circuit. Ninth 1088, superseded F.3d Opinion, 19, 2005. Oct. rehearing. Submitted Argued withdrawn 11, 2006. Aug. Filed Opinion 3, 2007. Dec. Withdrawn

Opinion 3, 2007. Dec. Filed Opinion

Amended and Associ- Hodges, Hodges

A. Clifton CA, ates, Pasadena, plaintiff-appel- lant. Travieso, Assistant United M.

Frank CA, Angeles, for the Attorney, States Los defendants-appellees. KLEINFELD, A. J.

Before: ANDREW TASHIMA, and RAYMOND WALLACE FISHER, Judges. Circuit C. Partial by Judge TASHIMA:

Opinion by Judge and Partial Dissent Concurrence Judge FSHER; Concurrence KLEINFELD. OPINION AND AMENDED

ORDER ORDER panel for Defendants-appellees’ petition opinion The and granted. rehearing is concurring the Judge opinion Kleinfeld’s 2006, report- August and result filed are withdrawn at 457 F.3d ed opinion, Judge by the amended replaced part concurring opinion Fisher’s and Judge judgment, in the concurring in the concurring result opinion Kleinfeld’s concurrently this order. with filed rehearing en banc for petition petitions further moot. No denied as entertained. Peti- rehearing will be panel may be filed rehearing en banc tions for opinion. respect amended OPINION TASHIMA, Judge: Circuit minor, (“Tekle”), Tekle Ephraim guardian ad his through mother litem, Lily Tekle, complaint filed a against home Lily and that took the children to individuals, the United States and various morning. school each Jankowski thus seeking declaratory damages relief and un- planned to serve the warrants Lily after der the Federal Tort Claims Act had taken the children to school. (“FTCA”), 1346(b)(1), §§ 28 U.S.C. 2671- 23, 1998, On the morning of March violations, alleged rights and for civil approximately team of twenty-three agents pursuant to Bivens v. Six Unknown gathered at an away area from the Tekle Agents Named Fed. Bureau Narcot- briefing.2 home for Another team of ics, 29 L.Ed.2d agents Lily arrested without incident after (1971). The complaint stemmed from dropped she off two of her children at an incident at Tekle’s home when federal agents school. The Lily asked for the agents parents. arrested Tekle’s The dis- garage opener house, door to her and she trict court granted summary judgment in told them to be careful because her eleven- favor the individual defendants on the year-old son was at home and her husband they basis that did not violate Tekle’s con- recently had suffered a heart attack and that, rights stitutional they and even if undergone major surgery. heart The had, they qualified were entitled to immu- agents communicated radio with the nity. liability Because the of the United agents team of at the Tekle home and States was liability derivative of the of the informed them of what Lily had told them. defendants, individual grant- the court also residence, At the Tekle agents the an- summary ed judgment favor of the presence nounced the of law enforcement appeals. United States. Tekle We have public officers over a system. address jurisdiction pursuant 1291, § to 28 U.S.C. Jankowski also called Solomon Tekle on a and we reverse. telephone, cellular asking him to surrender himself at the front door.

BACKGROUND1 Immediately prior In parents, agents’ Tekle’s to the an- Solomon and Tekle, nouncement, Lily suspected opened were Tekle garage the door narcotics and trafficking and tax-related exited the garage offenses. In- order to take out (“IRS”) trash, ternal the Revenue Service unaware of Special agents’ presence. the Agent Thomas He prepared plan Jankowski was barefoot wearing and was a t-shirt to execute search and arrest and warrants at shorts. He saw police numerous cars their home. Jankowski learned that the and heard a “loud intercom” over which children, couple’s three including then the saying, man, officers were “Young turn eleven-year-old Ephraim, lived at put your around and hands in the air.” posture 1. “Because this case arises in the of a genuine evidence sufficient to create a issue summary judgment motion for fact, we are re pursuant of material to Butler v. San quired view all facts and draw all reason Diego Attorney’s Office, Dist. 370 F.3d 956 nonmoving able inferences in of the favor (9th Cir.2004). response govern- In case, party,” in this Tekle. Brosseau v. Hau filing agents, ment’s of the declarations of its gen, 543 U.S. 195 n. deposition, Tekle filed his own as well as (2004) curiam); (per 160 L.Ed.2d 583 see also depositions parents, oppo- of both his with his Parks, Motley 1075 n. 1 government’s sition to the motion for sum- Cir.2005) (en banc) (accepting plaintiffs’ mary judgment. recitation of the facts because the case arose posture in the summary of a judg motion for IRS, DEA, agents 2. The were from the ment and qualified involved issues of immuni Angeles Department. and the Los Police ty). disagree government We with the producе any Tekle has failed to admissible and of his federal alleged further violations they were realize did not he Because grant- court rights. The district civil him, turned around state he speaking of the de- through judgment favor summary to the house ed running back started him to force used fendants, concluding told again agents The garage. alternative, and, Tekle up, hands in the his with was reasonable turn around walking out governing started law around and turned Fourth Amendment up. hands clearly his established with was not garage agents’ conduct Accordingly, incident. time get on told Tekle to the officers One of to quali- entitled agents that the were held on the face down lay he so ground, also concluded immunity. The court fied Te- gun held driveway. The officer of tri- not raised issue Tekle had him, and head, handcuffed searched kle’s the reasonableness fact regarding able from up Tekle pulled officer him. The judg- court entered his detention. the handcuffs the chain of behind defendants in favor of the individual ment sidewalk, where Tekle out to the took him States, timely Tekle and the United “in the handcuffed, his sat, feet still appealed. Solomon, father, until his gutter” handcuffs, in house out of the

brought REVIEW OF STANDARD minutes later. fifteen approximately house, of a grant out of the court’s motion came The district After Solomon from de novo. the handcuffs is reviewed summary judgment removed the officers County, in drive- 406 F.3d him on a stool the sat v. Tekle and Sacramento Blanford Cir.2005). twenty officers (9th to the 1110, “Viewing about fifteen way, where Tekle pointed at him. the guns light most favorable to kept their evidence the restroom, but one drawing if could use the all rea- asked he ... and nonmoving party, him to the rest- officers followed that party, of the inferences favor sonable gun, on his room, hand keeping his the district whether must determine we door, so the let Tekle close sub- would the relevant correctly applied court driveway. the One to any Tekle returned there are and whether stantive law parents Tekle where his asked the officers fact.” Galvin of material genuine issues he was from, replied Cir.2004). (9th and Tekle In 739, were Hay, 374 F.3d from parents that his but were immunity, born here qualified claim of evaluating a said, “Ethiopia is officer Ethiopia. The whether, when determine first must we see nothing to country, and there’s ugly f n Te- favorable to light most in the viewed shoes, asked for his Tekle there.” When of a a violation kle, facts show alleged the on the threw the shoes officer another at 406 F.3d right. Blanford, constitutional hours spat on them. Several ground and then yes, we answer is 1114-15. If the to later, Tekle’s relatives came one of the constitutional whether must determine up. him pick house at clearly established right issue violation. Id. alleged the time of sought complaint, Tekle declarato- In his “ right of the must contours ‘The claims damages.3 alleged He ry relief and official that a reasonable sufficiently clear arrest, battery, and assault for false doing that what he He understand would FTCA. pursuant mental distress them, con- actions were the two against complaints were dis- first two 3. After Tekle's action, in- procedural original which prejudice solidated under missed without individually respect defendant. grounds States as a cluded United defendants, complaint he filed another named ” Katz, right.’ Saucier v. 533 garding whether the violates officers’ conduct vio- 2151, 194, 202, 121 S.Ct. 150 L.Ed.2d lated rights U.S. his constitutional and there- (2001) (quoting Creighton, Anderson v. fore grant reverse the district court’s 635, 640, 3034, 483 U.S. S.Ct. 97 summary judgment favor of defendants (1987)). L.Ed.2d 523 on Tekle’s Bivens claims.

DISCUSSION A. Excessive Force judicially “Bivens is a created cause of contrary “[U]se of force is against action federal arising officers un- Fourth Amendment if it is excessive under der the United States Ting Constitution.” objective standards of reasonableness.” (9th States, 1504, v. United Saucier, 533 U.S. at 121 S.Ct. 2151. Cir.1991). actions, contrast, FTCA are In determining whether the force used was created statute. “The provides FTCA “ reasonable, we must balance ‘the nature govern- a waiver of the United States quality of the intrusion on the individ sovereign immunity ment’s for tort claims ual’s Fourth Amendment against interests arising government out of the conduct of the countervailing governmental interests employees acting within the scope of their ” Blanford, at stake.’ 406 F.3d at 1115 States, employment.” Adams v. United Connor, (quoting Graham v. Cir.2005). “The 104 L.Ed.2d 443 specifies liability FTCA (1989)). is to United States be determined ‘in ac- cordance with the law of place where legal clearly framework is es [allegedly tortious] act or omission oc- ” tablished. The first in determining factor States, curred.’ Rhoden v. United 55 whether the force used was excessive is (9th 428, Cir.1995) curiam)

F.3d 430 (per severity the applied. of the force 1346(b)) Drum (alteration § (quoting 28 U.S.C. mond ex rel. City Drummond v. Ana original). the California law therefore heim, (9th 1052, Cir.2003). 343 F.3d 1056 governs liability the States’ United in Te- factor, Galvin, second and the important, most kle’s FTCA claim. See 374 F.3d is the need fоr at the force. Miller (applying 758 California law v. Clark to deter- 959, (9th Cir.2003). liability County, 340 mine the of federal F.3d 964 officers for “ arrest); States, false Cervantes v. The amount United of force used ‘permissible is (9th 1186, Cir.2003) (same); 330 F.3d 1188 only when a strong government interest States, v. see also Gasho United compels 39 F.3d employment the of such force.’” (9th Cir.1994) 1420, 1427 (“Liability Drummond, is de- 343 F.3d at 1057 (quoting by termined the tort law of the state Rutherford, Deorle v. 1280 arose.”). where the claim (9th Cir.2001)). Factors to be considered in determining the need for the force in “ I. Bivens Claims severity issue, clude ‘the of the crime at suspect poses whether the an immediate alleges that the Tekle individual defen- safety threat or dants used excessive officers oth they force when ers, and whether he pointed gun actively a at his head pointed guns resisting and arrest incident, attempting at him for the duration of or to the evade arrest ” they subjected flight.’ him Blanford, to an 406 at (quot unreason- F.3d 1115 Graham, able detention. ing We hold that Tekle has at U.S. 1865). genuine

raised issues of material fact re- may at someone constitute ing gun of a force balance the Finally, we must force, if it does not cause even need, excessive wheth to determine against used Robinson v. injury. See Solano physical than is “greater used was the force er (9th 1007, 1014-15 Cir. County, 278 F.3d circumstances.” under reasonable 2002) banc). Robinson, (en were police In Gates, F.3d Santos had carrying shotgun man a that a told Cir.2002). This determination yelling at dogs and someone. two was shot the facts attention to careful “requires po Robinson, approached plaintiff, particular of eаch circumstances them, but explain lice to the situation balancing” of “careful and a case” head, at his guns their pointed the officers govern- liberty with the individual’s him, him into shoved their handcuffed application in the ment’s interest car, explanation to his refusing to listen nearly balancing such force. Because fif released after situation. He jury through to sift a always requires agreed thirty minutes. We teen contentions, and to factual disputed “point officers who Third Circuit therefrom, held we have inferences draw suspicion, not under guns people ed summary judg- many occasions them for 25 them and detained handcuffed of law as a matter judgment or ment for a be liable Fourth minutes could granted should be force cases excessive “ ‘use because violation” Amendment mis- police This is because sparingly. justified must be and handcuffs guns turn on a always almost cases conduct ” (quoting at 1014 Id. circumstances.’ credibility jury’s determinations. Township, v. Monroe Baker Graham, (quoting Id. at 853 Cir.1995)). (3d (internal 1865) citations S.Ct. omitted). light Here, viewing the facts Tekle, approximately favorable to the most apply the framework

We now officers saw bare twenty-three armed is the The first factor this case. facts of foot, boy, clad in Drummond, eleven-year-old shorts force. severity of the Al- t-shirt, from his home.4 emerge point- that the have held F.3d at 1056. We government at- litigation, the for this eleven tion dispute that Tekle was no 4. is There threatening portray as more tempted to Tekle incident. The years the time of the old at at the time of the appeared them than he to portray as attempted Tekle government has support any whatsoev- incident. Nor there appeared. For ex- threatening than he more specula- Judge Kleinfeld’s for er in the record Tekle as a ample, Agent described Jankowski that Tekle could feared tion that the officers tall," male, in five feet approximately "young up stirring neighborhood the “run around litigation. prepared this for his declaration to interfere.” Klein- youths and older adults However, Activity dated of in a Memorandum concurring op. 859. at feld 7, 1998, approximately two weeks after April incident, "ap- that Tekle agents that Jankowski stated knew importantly, the the More old,” child, and, years and eleven-year-old 12 to peared to be about had an Solomon arrested, similarly arresting Te- described the Agent Lily Hawkes she told David was when ages eleven-year-old in at appearing those son was agents to be between her kle as that 2, 1998, Activity. allegedly con- was of April his Memorandum home. This information that, although agents Te- at the Tekle home veyed team indicate to the of These memoranda all these slightly than his For reasons may appeared prior older the incident. kle have summary judg- taking the apparent to the officers into account age, was and it still actual case, through- we assume Although posture the Tekle was child. ment at the time that clearly awas child opinion Tekle was out this that the evidence Judge Kleinfeld states tall, eleven to approximately appeared to and six feet was betwеen five that Tekle that, at the scene. years to the officers old prepara- twelve actually indicates the record to return to the though he tried house force excessive where the officer threw the “intercom,” the initial hearing plaintiff ground her, after he and handcuffed cooperated. stopped despite He did not the fact that posed safety then she no flee, them, attempt to nor did he resist but risk and attempt made no to leave the requests, their complied lying property); he face County, Baldwin v. Placer (9th Cir.2005) drive-way. 966, on the He was un- F.3d (stating down gun then held a governmental armed.5 The officers the using interests in hand him, head, him, handcuffed cuffs were at a his- searched minimum when there was him behind the chain of pulled up from no indication that officers believed the sus handcuffs, sidewalk, him armed), denied, and sat on the pects the would flee or be cert. handcuffed, guns pointed with their at still 126 S.Ct. 164 L.Ed.2d him, (2006); Only for ten to fifteen minutes. after County Wall v. Orange, 364 (9th Cir.2004) (revers they removed his father from the home in F.3d 1111-12 they handcuffs did remove ing grant the handcuffs the of summary judgment where stool, They from-Tekle. then sat him a deputy violently plaintiff, arrested the drawn, guns with their still handcuffing another tightly, though his hands even twenty fifteen to minutes. We probable conclude there was no cause for arrest and under these plaintiff circumstances the amount following deputy’s was in structions). against force used Tekle constituted a “ ‘very person- substantial invasion of [his] Balancing against the force used ” Baker, security.’ al (quoting Id. need, that, we conclude “when the disputed 1193). Consequently, 50 F.3d at this fac- facts and inferences are treated in the weighs tor favor Tekle. law, required manner jury prop- could Turning to the second and impor- erly most find” the force “greater used was factor, tant we conclude that “the need for than [was] reasonable under the circum- force, any, Santos, if was minimal at best.” stances.” 287 F.3d at Erath, Meredith v. 1061 There were over twenty present officers (9th Cir.2003). All scene, the factors to be con- and Tekle suspected was not in determining sidered the need for any crime. cooperative He was and un- weigh and, force finding favor of a that the importantly, armed most he was elev- First, need for force minimal. years Tekle en old. A agent reasonable con- clearly subject was a child and was not fronted with these circumstances should of the arrest warrant. Tekle was unarmed have known that there was no need to use vastly pose guns Yet, outnumbered and did not and handcuffs. kept officers safety. immediate threat to the officers’ Tekle handcuffed pointed weap- their actively attempt He did not resist arrest or ons at him even apparent after it was that circumstances, to flee. Under these even he awas child and was not resisting them if the officers Moreover, needed to secure Tekle in or attempting to flee. Tekle order to execute the search and alleged arrest has that an pulled officer him up warrants, it apparent should have been handcuffs, from behind the chain of the eleven-year-old that this boy pose which, true, did not a an act if support jury ‍‌​​‌​​‌‌​‌​​‌‌‌‌‌‌‌​‌​‌‌‌​‌‌​‌​​​​​‌​‌​‌‌​​​‌​‌​‍could a threat and that the need for force finding accord- of excessive force. We understand ingly was minimal. (finding id. the that calculus of “[t]he reasonableness must Cf. assertion, government urged argument 5. The port at oral such an and there has never that any allegation Tekle could have been armed. There is been thought that the officers record, however, sup- no evidence in the to Tekle was armed.

847 Baldwin, (9th Cir.1984)); 418 F.3d see also that police fact the for embody allowance the “violated (stating that officers at 970 split- make to forced are often officers from to be free right plaintiffs of the that civil circumstances judgments&emdash;in second officers, right a battery gunwielding uncertain, rapidly evolv- tense, are 1984”). circuit since in this established that of force the amount ing&emdash;about suspected McKenzie were plaintiffs The Gra- situation.” particular in a necessary and of jewelry stolen trying to sell 396-97, of 109 S.Ct. 1865. ham, at U.S. 490 robbery and prior tied to a convinced, being only by possibly if Nonetheless, arewe into the room officers murder. The burst the versus number of officers the sheer drawn, plaintiffs the a forced unarmed, weapons child that one, barefoot clearly them, wall, threw them handcuffed find that officers jury could reasonable floor, against guns their pressed to force. excessive used heads, to refusing at first plaintiffs’ “ be made out could a violation ‘[I]f officers. We police as identify themselves parties’ of the submis view on a favorable find the jury for a to “ample basis found next, ask step is to sions, sequential excessive.” оfficers’ conduct police clearly estab right was whether McKenzie, at 738 F.2d 1011. ” Wall, (quoting at 364 F.3d lished.’ Haskins, F.2d 292 v. In McDonald 2151). Saucier, 121 S.Ct. 533 U.S. at (7th Cir.1992), gun a to police a officer held acts alleged that the necessary is not “[I]t threatened nine-year-old a the head of unconstitutional, held previously been have of the during a search pull trigger to apparent was long as the unlawfulness as argued that The officer child’s residence. Drummond, 343 existing light law.” it was because immunity he was entitled is “whether question at 1060-61. F.3d that it at the time clearly established not officer to a reasonable it be clear would for a of force an unconstitutional use was in the unlawful situa his conduct was at a resident’s point gun a police officer Saucier, at confronted.” tion he resi during a lawful search head the absence “[I]n 2151. Circuit at 293. The Seventh Id. dence. ‘look to whatever we binding precedent, that, stating al argument, rejected this law is ascertain available decisional at which generality though level “[t]he clearly law is established whether cannot legal ‘rule’ is identified the relevant including de immunity qualified purposes, the rule as to so abstract convert circuits, courts, other of state cisions ” virtually rule of immunity into a qualified County, v. Benton Boyd district courts.’ require liability,” “this does unqualified Cir.2004) (9th (quoting on all fours ‘precisely that is prior case 1060). Drummond, ” here.’ Id. law the facts and involved pointing have held since We Dep’t Chil (quoting Landstrom Ill. can ex- suspect’s head constitute gun at a Servs., F.2d Family dren & Robinson, circuit. See in this force cessive Cir.1990)). then concluded The court (stating that “under morе at 1014 F.3d clearly established of a pointing circumstances extreme constitution by the officer was force used more violate even the has held to gun been Id. ally proscribed. applicable before Gra- standard rigorous McDonald, a Tekle was to Similar ham, es- required were to plaintiffs when incident the time of the it minor at that excessive conduct so tablish any ... safety of ”) threat “posed no (quoting conscience’ ‘shocked actively resist- was not present, ... Lamb, 1010 officer F.2d v. 738 McKenzie attempting to evade arrest A ing arrest or reasonable officer would have known engaged any was not in as- fleeing, and against that the force used Tekle violated ... the ... offi See, saultive behavior toward rights. e.g., his constitutional id. at 292-93; at see also cers.” Id. Ikerd (reversing 1061-62 the district court’s (5th Cir.1996) Blair, 430, 435 101 F.3d grant summary judgment in favor of the judgment a matter of (holding that as law remanding officers and for trial because a erroneously granted where the deputy reasonable officer would have known that ten-year-old child out of grabbed sheriff pressing weight person his on a who was dragged a chair her into another room resistance, offering handcuffed and no con- arrest, in of her father’s even the course force, stituted use of excessive “even not though she “was under arrest and a Ninth presenting absent Circuit case Baker, anyone”); to posed no threat facts”). same set We thus conclude that (concluding plain F.3d at 1193-94 that the court in granting the district erred sum- presented evidence sufficient to tiffs had mary judgment in favor the defendants summary judgmеnt withstand where offi on this claim. guns plaintiffs, at the pointed cers includ minors, seventeen,

ing aged three seven B. Unreasonable Detention teen, fifteen, and handcuffed some of Tekle further contends that his de minutes, up twenty-five them for to where unreasonable, relying tention was “simply anything there was no evidence of Foxworth, Franklin v. 31 F.3d 873 that caused the should have officers to use Cir.1994), in which they we concluded that offi alleged the kind of force are to have used”). McKenzie, McDonald, Ikerd, cers conducted a in detention connection with a search prior unreasonably, “by removing Baker all were decided year gravely ill of the events this case. and semi-naked man from his “[W]e any conclude that the sickbed without providing clothing officers had ‘fair warn or ing’ they covering, by forcing the force used was constitu and then him to re tionally sitting excessive even absent a Ninth main living Cir handcuffed his room presenting hours,” cuit case the same set of facts.” for two despite they the fact that Drummond, (quoting 343 F.3d at 1061 had no reason to believe he had committed Pelzer, 730, 741, 122 Hope v. 536 U.S. S.Ct. a crime or was Id. armed. at 876-77. We (2002)); 153 L.Ed.2d 666 Mc way conclude that the handcuffs were used cf. Donald, (reasoning on Tekle rendered his detention unreason the officer “would have no reason think able. reject Circuit would [the Seventh] “An authority officer’s to detain in holding” regarding [the Third Circuit’s] ” cident to a search is actions). categorical.... of his Al reasonableness Mena, 93, 98, Muehler v.

though may there a prior not be case (2005). “po S.Ct. 161 L.Ed.2d 299 specifically prohibiting the use of hand not, howevеr, lice do have unfettered au weapons by twenty cuffs and than more thority building’s to detain a occupants officers to subdue unarmed eleven- any way they fit.” year-old boy any City who is see Dawson v. suspected Seattle, (9th Cir.2006). wrongdoing cooperating and is with the officers, Rather, “[a]ny the detention reasonable officer should must be conducted Id.; have “in a known such conduct constituted manner.” reasonable see also Muehler, Drummond, 98-99, the use of excessive force.” U.S. S.Ct. 1465 343 F.3d at 1061. (stating “authority that officers have the relied on the fact that “this was the de The Court to effectuate reasonable force use “a occupants) (empha ordinary search” because involved building’s a no tention” of added); F.3d Knapp, gang and a wanted weapons Ganwich search for sis Cir.2003) that, (stating premises,” making member resides on the per is se police from conduct apart “inherently dangerous situation[ ].” it an unreasonable, privacy must balance we 1465. The Court also Id. S.Ct. concerns to and law enforcement concerns case involved the deten- noted that “this reasonable). if the detention was determine Id. tion of four detainees two officers.” during “[D]etaining person a in handcuffs detaining governmental interests of a warrant to search for the execution “at a maxi- using handcuffs thus were only jus but when permissible, evidence mum.” Id. totality the circumstances.” by the tified on Muehler to find rea- Dawson relied Meredith, 1062-63; also 342 F.3d at see boardinghouse’s sonable the detention of a Robinson, (agreeing at 1014 during inspection tenants a two-hour guns that the use the Third Circuit health officials for rоdent infesta- public justified by the circum handcuffs must be Dawson, at 1066-70. We tion. stances). the landlord was pointed to the fact that Muehler, consid- Supreme In Court crimi- associated with a man with a violent of the detention of ered the reasonableness history previously nal who had threatened of a house that was searched occupant an inspectors, police as as to the fact that well Mena, Iris pursuant to a search warrant. many people were inside did know how wrong- of criminal suspected who was not concluding “[allowing an building, a in her house to a doing, rented room people unknown number of unidentified in- suspected who gang member was invol- unsupervised during move about Police driveby shooting. in a volvement dramatically in- untary inspection would obtained a search warrant for the home occupant that an crease the likelihood gang weapons search for and evidence of officer, injure kill an or that an could or placed Mena in membership. The officers mistakenly injure an occu- might officer they en- gunpoint handcuffs at when first pant.” Id. at 1067. home, into a convert- tered the moved her people other found garage ed with three ei- Dawson did not involve Significantly, her in hand- property, on the and detained or children. ther the use of handcuffs throughout the two-to-three-hour cuffs And, the use of although Muehler involved search. handcuffs, in a used on adults they were officers were outnum- where the situation the “use of

The Court concluded Daw- by the detainees. Unlike both bered in the form of handсuffs to effectuate force Muehler, here, enforcement law son as garage, detention as well Mena’s Tekle, more vastly outnumbered personnel occupants, other the detention of the three twenty apparent It was than to one. governmental reasonable because subject that he was not the the time outweigh marginal intrusion.” interests Muehler, suspicion there a 1465. arrest warrant. Nor was 544 U.S. at twenty single, boy by over armed unarmed Judge Kleinfeld this case is asserts Muehler, characterizing “analogous” analogous deten- simply officers is not "small, involving adults, barefoot wom- Muehler as (presumably tion of four individuals being in handcuffs. Kleinfeld an” detained only specify) by although does not the case op. concurring at 860. While both cases in- two officers. handcuffs, detention in the detention volve (or other) deadly weapons any simply and a this circuit that there were in thought handcuffing person detaining to be “armed and a her

gang member Muehler, dangerous” premises. during on the handcuffs a search for evidence 95, 125 S.Ct. 1465. her Fourth 544 U.S. at would violate Amendment Meredith, rights.” 342 F.3d at 1063. unarmed, barefoot, clad in Tekle was Meredith, plaintiffs of the in howev- None t-shirt, appeared shorts and a er, eleven-year-old was an child. approximately years twelve old. He was alone, twenty-three armed Moreover, Franklin, and there were in we stated resisting He was not the officers officers. particular that detentions of children raise ground face down on the lying but was concerns that must be assessed with the Franklin, in front of him. with his arms stretched other cirсumstances. 31 F.3d at Moreover, already officers had 876. The Seventh decision in Circuit’s weap- McDonald, and “uncovered no searched Tekle relying part on the fact that anything child, ons or else to warrant further plaintiff was a was decided in safety.” City Bennett v. McDonald, 295; concern for their 1992. F.2d at See see Eastpointe, Ikerd, (a Cir. also 101 F.3d at Fifth Circuit 2005). Yet Tekle remained handcuffed for involving case decided in 1996 also the use minutes, twenty child); Baker, fifteen to more and an against of excessive force a (a him from behind allegedly case, officer lifted 1193 Third Circuit de chain conclude of the handcuffs. We ciding guns the use of jury that a reasonable could find during twenty-five handcuffs a minute de officers’ of handcuffs rendered Tekle’s use fifteen-year-old tention of seventeen-and (conclud detention unreasonable. id. supported finding children their Cf. ing during stop violated). that the use of handcuffs rights constitutional were Ohio, pursuant Terry 88 totality supports of the circumstances (1968), S.Ct. 20 L.Ed.2d 889 violated only conclusion that not was Tekle’s deten rights plain the Fourth Amendment unreasonable, tion but a reasonable officer tiffs, “youths,” described as because the eleven-year-old would have known that an pat-down had unarmed, barefoot, officers conducted searches vastly child who was weapons and uncovered no and the officers outnumbered, resisting and was not arrest youths had to believe the were no reason attempting or to flee should not have been flee). dangerous accordingly We or would kept twenty in handcuffs for fifteen to it would be clear to a turn to whether additional minutes. that his conduct was

reasonable officer Saucier, II. FTCA Claims7 light existing law. unlawful 2151; 533 U.S. at Drum complaint, alleged In his Tekle mond, F.3d at 1060-61. arrest, three tort claims: false assault and that, July battery, We stated in Meredith as of and intentional infliction of emo 10, 1998, clearly Generally, “it established in was not tional distress.8 “the United note, Except infra, applicable for footnote Part II sets which is the law. We howev- Judge er, forth the views of Tashima and does pages argument that there are five de- part majority opinion. not constitute perceived voted court's district error in granting summary judgment in favor of the government argues 8. The that Tekle has Moreover, United States on the FTCA claim. waived his FTCAclaim for failure to raise the government prejudiced is not because opening acknowledge issue in his brief. We "thoroughly question discussed the in its own law, that Tekle has not based his claim on tort liability of the United States for as a was the the same extent liable ‘to is States by like circum- negligent inspections under federal allegedly individual private ” Galvin, (quot- F.3d at 758 374 stances.’ a inspectors. mine The Court reversed 2674). pro- § The FTCA ing 28 U.S.C. precedent permitting of Ninth line Circuit States’ exception to the United vides an where local law liability under the FTCA assault, torts, including liability for certain municipal entity make a state or would 28 battery, and false arrest. U.S.C. 44, 126 liable. Id. at S.Ct. 510. The Court 2680(h). is committed § such a tort When in terms that the FTCA stated broad officer, how- a federal law enforcement by says “namely, means what — ever, Id. liability is restored. immunity sovereign waives Unitеd States “ ‘[law have stated previously We where local law ‘under circumstances’ make the law of obligations enforcement] in ‘private person’ would make a liable instrument inappropriate citizen arrests an (quoting tort.” Id. U.S.C. ” Galvin, liability.’ determining FTCA 1346(b)(1)).9 emphasized § The Court Arnsberg v. (quoting at 758 Unit 374 F.3d “private person” language, rejecting the (9th Cir.1985)) States, ed States would be notion the United (alteration Thus, in when feder original). entity only municipal liable if a state or involved, we have held that al officers are 45-46, would be liable. Id. S.Ct. liability is determined the United States’ “ pursuant arrests by governing ‘the law ” language The also examined the Ting, (quoting 927 F.2d at 1514 Court warrants.’ 979). F.2d at “‘in nsberg, making the United States liable Ar to the same extent as a same manner and however, Court, recently Supreme The private individual under like circum- liability under held that the United States’ ” (quot- Id. at 126 S.Ct. 510 stances.’ on the state law the FTCA is be based 2674). rejected § ing 28 U.S.C. Court or liability private party, of a not of state “like circumstances” too reading the words Olson, municipal entity. States v. United only liability of narrowly, by looking at the 43, 44-47, 126 S.Ct. (2005). rather broad- inspectors, in federal mine than L.Ed.2d 306 The issue Olson added). occurred.”) (emphasis conduct USA Petroleum Co. v. Atl. brief.” Richfield Co., (9th Cir.1994). Con- the United States’ liabil- The failure to discuss Judge trary to Kleinfeld’s assertion that Te- appears to coun- ity under tort law due argument in his brief deals his kle’s applicable the law sel's failure to understand claim, claim, FTCA Kleinfeld Bivens not his Because he raised the to an FTCA claim. concurring op. clearly the brief as- prejudiced, government issue and not granting that the district court erred in serts address the is- we exercise our discretion to summary judgment favor of the United sue, especially light holding that the of our Appellant's on his tort claims. See States granting summary district court erred in (discussing "liability Opening Br. at 24 judgment the defendants on the in favor of placed upon the UNITED STATES in a tort claims. Bivens claim”). argument solely His deals with the liability of the United States and therefore exception, restoring exception 9. The claim, regarding the Bivens but is cannot be arrest, assault, battery liability when false Ting, claim. meant to deal with the FTCA See officers, alleged against are law enforcement (“While judicial- 927 F.2d at 1513 Bivens is a provide lia- a different standard for does ly against created cause of action federal offi- 2680(h). merely § bility. It See 28 U.S.C. arising States Constitu- cers tion, under United 1346(b), § reverts to 28 U.S.C. which means liability imposes ... the FTCA on the liability pri- is based on a the United States' government for acts its em- United States person's liability. vate Id. ployees that constitute torts in the state where inquiry by examining liability to hold the States for torts ening the United liable employee in- private persons safety government who conduct committed 46-47, spections. acting scope Id. at 126 S.Ct. 510. “while within the of his office 1346(b). § employment.” or 28 U.S.C. The Court thus stated no uncertain Thus, although Judge Fisher ‍‌​​‌​​‌‌​‌​​‌‌‌‌‌‌‌​‌​‌‌‌​‌‌​‌​​​​​‌​‌​‌‌​​​‌​‌​‍is correct by restricting that we erred terms “ 2680(h)’s § proviso law enforcement liability government FTCA to the enti- provide was intended to remedies for vic- uniquely ties. Even if the conduct entails abuses, tims of law enforcement not for functions, governmental the court is to ex- routine and lawful of law en- the exercise liability privatе persons amine the of in privileges,” concurring forcement Fisher analogous situations. Id. at 126 S.Ct. op. begs question at this the of wheth- Towing Indian (citing Co. United er the officers’ actions were abusive or States, 61, 64, 122, 100 350 U.S. routine and lawful. states in broad Olson (1955), holding L.Ed. for the that the that the of terms words the FTCA “mean “requires FTCA a court to look to the they say, namely, what the United entities, liability private state-law of not to sovereign immunity States waives ‘under entities, public assessing when the circumstances’ where local law would make liability Government’s under the ‘in FTCA Olson, in ‘private person’ liable tort.” performance private the of activities which 44, 126 at S.Ct. 510.10 persons perform’”). Judge do not Fish- er’s reliance on the Court’s admonition to Finally, although this court did state in in limit look further afield order to the ap- Rhoden that a court would California in inquiry liability the instant case to the ply federal law to determine whether an officers, of federal law enforcement accord- arrest a federal privileged, officer was ingly, reasoning turns the Court’s on its the in issue Rhoden was “when and for head. long immigration agent may how a federal alien, potentially detain a excludable what

Contrary Judge warning, Fisher’s follow, procedures agent the taking bring Olson at its word does not the must § how being FTCA into conflict with 26 U.S.C. 7608. when and soon after detained a § Although grants agents person brought IRS the must be before an immi- authority gration judge.” to execute and arrest war- serve 55 F.3d 430. The dis- rants, grant agents the statute does not trict court had reasoned that California authority pro- the in questions commit torts the law did not address suсh executing Holding plaintiff accordingly cess of warrants. fed- not could eral law bring enforcement officials liable for an action under the FTCA. heldWe torts acting liability committed while within the that this was error and that the scope authority granted to them the United States should be determined does not bring immigration agents complied the FTCA into conflict with whether the granting authority. applicable statute them such federal standards.11 Id. at fact, In very purpose it is the 431. FTCA Moreover, tort, pleadings private person

10. apply nowhere in its liable in does in "privilege” § the face of a federal under district court or in its briefs in this court does spite government is advanced in of the failure of the "privilege” raise the under 26 government Thus, to raise the issue. argu- § U.S.C. 7608 as a defense. Judge concurring opinion ment in Fisher’s Olson, Moreover, course, making that the rule of the United Rhoden was decided guidance States liable when law we local would make well before had the of Olson. however, assessing policy the violation of an internal Generally, “[i]n FTCA, create a cause liability under the INS did not of action States’ United under the unless the apply the law of the FTCA conduct was required we are “independently applicable occurred.” tortious under alleged in which the tort state States, law,” v. United applying 447 F.3d state Florida law to Conrad Cir.2006). Thus, Con example, agents’ determine whether federal actions rad, applied privileged California law to a claim of were an excessive force we States, claim); Harris v. United prosecution by agеnt an IRS be malicious (6th Cir.2005) (relying claim was based on “actions and 327-30 on Ohio cause the Id.; see occurring probable in California.” law to determine whether events cause Galvin, also, e.g., (applying existed in an claim that DEA FTCA agents maliciously or prosecuted law to an FTCA claim for false assaulted California States, claimant); Williams v. United by federal law enforcement offi arrest (4th Cir.2001) cers); Cervantes, 169, (apply (reject at 242 F.3d 172-73 330 F.3d 1188 ing argument false the that law ing applied California law to FTCA claims for federal by involving to an a imprisonment hospital arrest and false customs FTCA claim that agents)12; Ting, (holding by 927 F.2d at 1513 was run the United States on a Chero reservation, governs citing that law the United kee cases for “the “California for, liability universally accepted position in this FTCA action” that ‘law of States’ alia, FTCA, in inter battery place,’ assault and and false the as used the refers to law, law”); accord Kikumu Tin agents); federal state and local not federal arrest States, Osagie, ra dall ex rel. Tindall v. United 1269, v. 1299-1301 901 Cir.2006) Cir.1990) (10th (5th curiam) 53, (applying (per law in F.2d 55 Colorado (applying Mississippi law to an ac involving prison an FTCA claim federal FTCA States, Dalrymple v. United officers); Al involving agents 460 tion of the Bureau of Cir.2006) Firearms).13 cohol, 1318, Tobacco, (stating F.3d 1327 rules) (including that California law was the whole law choice-of-law Cervantes stated 12. law, occurred, applicable and cited California but then place negligence of the where the law for that (3) cited federal the determination place where the or the internal law of the probable cause existed for arrest. See operative negligence place.” effect of the took Cervantes, at 1188. 3, question Id. at 82 S.Ct. 585. There was no 29, applied. id. at 14 n. that state law See 82 Moreover, the case on which Rhoden re- (“In fact, despite ambiguity that S.Ct. 585 lied to state that the court must include feder- [legislative] history in the due to the exists assessing liability al law in the United States' Congress specifically did consid fact that States, under the FTCAwas Richards v. United problem, legislative er the choice-of-laws 1, 585, 7 L.Ed.2d 492 Congress thought in material indicates (1962), question in which the was what law to being applicable.”). terms of state law Simi negligent apply in an FTCA action where the Rhoden, larly, in case cited Ca the other in one state the resultant act occurred but States, (2d ban v. United 728 F.2d 68 Cir. injury and death occurred in a different state. 1984), merely the Second Circuit did not state 2, Id. S.Ct. 585. concluded that 82 Richards general principle applied federal law as a whole, reading "a as a with due [FTCA] negligence, of invasion of to FTCA claims regard purpose, requires application to its imprisonment by privacy, and false INS the whole law of the State where the act or agents. a exami The court undertook careful occurred,” including the choice-of- omission imprison nation of New York’s law of false negligence law rules of the state where the that, 11, light Thus, ment and concluded of New “[i]n occurred. Id. at 82 S.Ct. 585. assessing policy of a defendant’s ac York’s question required was whether the FTCA "(1) applicable with the law application tions in accordance the intеrnal law of the occurred, conduct, (2) negligence the New York state place where the or his we infer that 854 reasons, actually when the offense requires us to misdemeanor

For these Olson attempted in his liability of a has been committed or regarding the law examine Stores, arrest, presence. Hamburg v. Wal-Mart for false assault private person Inc., 497, Cal.App.4th Cal.Rptr,3d 10 infliction of emo- 116 and intentional battery, (2004). 568, 580 Reasonable cause to be distress. tional lieve that a misdemeanor has been com Arrest False mitted is not sufficient. Id. 581. When A. is to make an private person entitled law, arrest, or false California Under arrest, he is entitled to use reasonable is “the unlawful viola- imprisonment, false person. People force to detain the v. Fos liberty of another.” personal tion of selman, 572, 855, Cal.Rptr. 33 Cal.3d 189 236; § City see Collins v. Code Cal.Penal (1983) (en banc); 659 P.2d see S.F., Cal.App.3d County & Garcia, People Cal.App.2d also (1975) (stating Cal.Rptr. (1969) Cal.Rptr. (stating way “but one of commit- arrest false private citizen was assaulted when they are imprisonment, a false ting arrest, effecting a citizen’s he course only terminology”). distinguishable “justified using such force as was a tortious claim of false “The elements for defendant’s arrest and de reasonable (1) nonconsensual, are: imprisonment tention”). (2) person, of a confinement intentional (3) for an privilege, lawful and without Here, there is no evidence that time, however period appreciable any had reason to believe that the officers Hosp., Coast 80 Easton Sutter brief.” Tеkle had committed a misdemeanor Cal.Rptr.2d 323 Cal.App.4th Moreover, presence. their as discussed (2000). provided by on evidence supra, based Tekle, jury a could find that the force used arrest, may person make private

A to detain him was not reasonable. Tekle person custody, a into in a “taking is which accordingly genuine has raised issues of manner authorized law.” and in the case regarding material fact the officers’ liabili § Code 834. CaLPenal ty for false arrest. We therefore reverse may 1. person A arrest another: private grant summary judg the district court’s offense committed or at- public For a ment on Tekle’s false arrest claim. 2. presence. in his When the tempted felony, has committed a arrested person Battery B. Assault and presence. in his 3. When a although not committed, in fact felony has been and allegation Tekle’s second under believing cause for he has reasonable that the officers him FTCA was assaulted arrested to have committed person “by willfully maliciously pointing and a it. threatening loaded firearm at and [him] alleged they § a 837. While law en- shoot him.” He further Cal.Penal Code battery may person “by placing arrest a committed handcuffs forcement officer him, probable upon pushing ground him to the without a warrant when he has lay him down and to sit forcing [sic] cause to believe that the arrestee commit- apprecia- still on for an presence, pri- ted a misdemeanor in his a handcuffs may only period arrest someone for a ble of time.” person vate principles entrant are to federal cials' detention of a would-be courts would look to omitted). (citation judged.” at 73 determining by which INS offi- Id. the standard battery Emeryville in the v. Doe thru are defined Assault Officers of Dep’t, F.Supp.2d the “un- Police Penal Code. Assault is California (N.D.Cal.2005). According to Tekle’s de attempt, coupled present with a lawful an officer him while injury position, a violent on the handcuffed ability, to commit lying ground Code he was face down of another.” CahPenal person him any picked up by and un- that he then the chain of battery § “A willful handcuffs, cutting his skin. upon or violence lawful use of force Code person of another.” CahPenal twenty Over armed officers en contact, in- § 242. “Harmful or offensive barefoot, unarmed eleven- countered done, battery, tentionally is the essence of year-old boy resisting who was not them. of that contact is the apprehension while Tekle testified that the officers continued Witkin, SummaRy B.E. of assault.” 5 basis keep guns upon their trained him ed.2005) § Torts Law, of Cal. throughout the incident and that one offi omitted). (citations picked up him from behind cer assault, civil Tekle would To establish certainly chain of the handcuffs. He did (1) the officers need to establish conduct, and he has not consent touch him in a harmful or threatened to alleged harm. that he suffered We con (2) manner; reasonably ap- offensive has a genuine clude that Tekle raised issue they him that were about to peared to of material fact as to whether officers (3) threat; he did not con- carry out the may battery. be liable for assault аnd We (4) conduct; harmed; sent to the he was grant therefore reverse the district court’s (5) the officers’ conduct was substan- summary judgment on this claim. causing the harm. See tial factor Judi- Cal., C. Intentional Infliction of Emotion- Jury cial Council Civil Instruc- (2006) (listing al Distress No. 1301 the elements

tions claim). that, of an assault Tekle testified claim Tekle’s third FTCA was for inten an offi- lying ground, while he was on the tional infliction of emotional distress. placed gun to his head and then cer prima of a facie case of intention elements that the handcuffed him. He also stated al emotional distress in Cali infliction of “ big guns, officers had “all sorts of different ‘(1) outrageous and fornia are extreme ones, pointing [him]” ones and small the inten conduct the defendant with sitting in the while he was on the stool causing, disregard tion or reckless of of incident, years Five after the he garage. probability causing, of emotional dis flashbacks, insomnia, depres- had and still (2) tress; suffering or plaintiffs severe sion, by two and he had been treated (3) distress; and actual extreme emotional He psychologists. and two psychiatrists proximate and causation of the emotional that, although further he has nev- testified outrageous distress the defendant’s ” crime, committed a he still felt nervous er City conduct.’ Davidson v. Westmin police whenever he saw a officer. ster, 197, 252, Cal.Rptr. 32 Cal.3d 185 649 (1982) 894, v. battery (quoting in P.2d 901 Cervantez The elements of a claim Cali- (1) Co., 579, Penney 24 Cal.3d 156 Cal. fornia are that the defendant intention- J.C. (1979)). 198, 975, In ally Rptr. an act that resulted in harmful or 595 P.2d 983 did outrageous, plaintiffs per- contact with the order to be considered offensive (2) son, conduct “must be so extreme as to exceed plaintiff did not consent to the (3) contact, usually tolerated in a injury, all of that and the contact caused bounds (internal community.” quota- Id. damage, plaintiff. loss or harm to the Cole civilized omitted). outrageous to sufficiently extreme and Where reasonable tion marks differ, support the trier of fact is to a claim. We therefore rein may such persons “ ‘the conduct has been infliction of emo determine whether state Tekle’s intentional outrageous to re- and sufficiently extreme distress claim. tional ” Adjust- v. Bonded liability.’ in Cross sult Bureau, Cal.App.4th 55 Cal. ment CONCLUSION (1996) (quoting Molko Rptr.2d all Viewing drawing the facts and infer- Ass’n Holy Spirit Unification of favor, in conclude that ences Tekle’s we Christianity, Cal.3d World a violation of Te- alleged facts show (1988) (en P.2d Cal.Rptr. rights. kle’s constitutional We further banc)). conclude that a reasonable officer should Cross, concluded that rea- In the court constitutionally it have known that differ as to whether minds could sonable excessive to use such force and to use the sufficiently conduct was the defendant’s alleged against in the manner handcuffs outrageous where the defen- extreme and eleven-year-old unarmed child who was dant, agency, made affirmative a collection fully complying requests. with the officer’s plaintiffs who misrepresentations grant We therefore reverse the sum- plaintiffs persuaded hired in mary judgment favor of the officer- $40,000 judgment on a worth over accept defendants on Tekle’s Bivens claims. Be- $250,000. Id. The court stated summary judgment grant cause the actions “were intentional agency’s predicated favor the United States was consequence with the foreseeable done on the district court’s erroneous conclu- [plaintiffs] would suffer severe regarding sions the excessive force and they discovered emotional distress once claims, unreasonable detention we also re- Id. the truth.” grant summary judgment verse the favor of the United States on the FTCA court here

[16]. The district con claims. We remand all-claims to the dis- agents engage did not that the cluded proceedings. trict court for further conduct. dis outrageous We extreme a conclusion can be such agree REVERSED and REMANDED. as a matter of on these facts law. reached testifying the officers In addition FISHER, Judge, concurring in Circuit at him weapons pointed kept their part concurring in judgment: ground by the chain up him off picked I in I Judge concur Part Tashima’s handcuffs, also that Tekle testified opinion. separately regard I write with to disparaging an made remarks about officer Part II I not because do believe the FTCA asked a Ethiopia. When Tekle different exposes federal law enforcement officers to shoes, on some put if he could officer liability they acting tort when are within spit at him and threw Tekle’s shoes officer special the confines of the law enforcement in light In of the conclusion on them. privileges upon conferred them other agency’s that a collection abuse of its Cross federal statutes. adversely fiduciary duty, which affected interests, sup plaintiffs’ financial could I. for intentional infliction of a claim port Olson, distress, agree conclude that rea I that 546 we United States emotional 510, to 163 L.Ed.2d sonable minds could differ as whether U.S. (2005), prior undermines the rule in this alleged conduct here Tekle was circuit, trespass, in v. of to make valid arrests without Arnsberg articulated first States, committing F.2d 978-79 the tort of false arrest and to United Cir.1985), obligations of unique that in arresting suspects use reasonable force officials “make the law law enforcement committing battery. without the tort of inappropriate instrument citizen arrests by private parties same acts if done These liability” and thus determining FTCA would often not privileged from civil to governing pursuant “the law arrests liability. tort the standard of care.

warrants” defines support Olson could be read to the con- prem Amsberg’s See id. conclusion was privileges clusion law enforcement § upon 28 U.S.C. which makes ised suits, recognized should not be in FTCA liable “in the same man the United States only and that federal officers are left with as a private ner and to the same extent privileges private those to citi- available individual under like circumstances.” We zens such as privilege. the citizen’s arrest federal law enforcement held because But I would read Olson’s instruction suspects pursuant officers arrest to their “like circumstances not restrict a do[es] duties, private “a cit unique governmental circumstances, inquiry court’s to the same not act making izen citizen’s arrest does afield,” require[s] but to look further required by under ‘like circumstances’ Olson, (em- 546 U.S. at S.Ct. Amsberg, (citing § 757 F.2d at 979 2674.” in phasis original), provide courts with States, F.2d Caban v. United 73-74 enough flexibility preserve law enforce- (2d Cir.1984)). rejected type Olson this privileges. ment Because did not Olson reasoning, holding “like circumstances privileges, involve such and because the inquiry do not restrict a court’s clearly FTCA’s text does not foreclose circumstances,” and that tort law same availability, their I not reach' out would governing private parties— the conduct of construe Olson’s definition of “like circum- governmental supply entities —should stances” to override them. liability standard FTCA suits involv governmental Adopting this construction avoids creat- ing unique functions. Ol son, (inter at 46-47 126 ing S.Ct. tension between the FTCA and other omitted, nal quotation emphasis marks In provisions of federal law. this case 26 7608(a)(2) original). § U.S.C. accorded the IRS agent privilege defendants the to “execute though Even law enforcement officers’ and serve and arrest war- search warrants unique governmental making function in rants.” To hold that the FTCA makes general arrests would not avoid analo- acting officers liable even when within IRS gizing arrests, to the law of citizen there is scope privilege of this federal would independent a second and basis for treat- bring into the FTCA conflict ing differently officers in an FTCA suit 7608(a)(2), § the two statutes whereas Specifically, such as this one. law federal easily by reading could be harmonized grants special law enforcement officials impose liability only to when the FTCA privileges that allow law enforcement offi- have the bounds of the officers exceeded jobs violating cers to do their without civil rel. privilege. See ex Sacra- criminal that sanctions would other- California Dist. v. Quality Mgmt. mento Metro. Air apply. privileges wise These authorize (9th States, 1005, 1012 officers, United 215 F.3d acting federal law enforcement Cir.2000) (“[I]t axiom within bounds is a well established applicable lawful to such officers, that, statutory whenever pri- to execute search warrants on construction property committing possible, interpret vate without the tort a court should two us to requires to avoid a survive the Act. The statute statutes inconsistent

seemingly the act conflict.”). apply place “the law of the where potential occurred.” 28 U.S.C. or omission fed- preserving FTCA as Construing the 1346(b)(1). § this to We have understood privileges would also eral law enforcement court apply mean that we the law state that federal offi- result: avoid absurd circumstances, apply analogous would lawfully may nonetheless be acting cers including federal law if the state’s choice- they if do not conform civilly liable held provide. Rho of-law rules would so See required private to what their conduct (9th States, F.3d den v. United Tatoyan, States v. United citizens. See Cir.1995) curiam). al (per Thus we have Cir.2007) (“Stat- 1174, 1181 474 F.3d lowed defendants in FTCA suits assert ... absurd read to avoid utes should that a court would privileges state results.”). explicitly could have Congress analogous in an state law tort recognize privileges enforcement law waived federal in Rhoden we held example, action. For out federal law enforce- singled when federal apply that a California court would protec- from the for removal mеnt officials immigra to determine whether federal law excep- tort intentional of the FTCA’s tion plaintiff was tion officials’ detention of the 2680(h). § have We 28 U.S.C. tion. See impris privileged against a claim of false 2680(h)’s § however, law en- held, Id.; law. accord onment under California provide intended to proviso was forcement States, Trenouth v. United 764 F.2d of law enforcement for victims remedies (9th Cir.1985). held that We abuses, lawful exer- for the routine and not only if defendants would be liable the de privileges. See enforcement cise of law applicable tention violated federal statutes Justice, Dep’t Orsay v. States United Rhoden, or the Constitution. See (9th Cir.2002) (cit- 1125, 1134-35 F.3d 432 n. 5. reached a similar We (1973), reprinted 93-588 ing S.Rep. No. Hay, conclusion Galvin (1974)). Ab- 1974 U.S.C.C.A.N. (9th Cir.2004), although by applying on the expression Congress sent a clear than law. privilege state rather federal abridge statutorily subject, not we should looked to California Penal Code We privi- law enforcement conferred federal 847(b)(1), § which makes both state and leges.1 federal officers immune from civil suits imprisonment text where the detention One final element FTCA’s false result of a lawful arrest.2 See privileges law enforcement was the solidifies against, any peace congressional officer or crimi- expressing intent to 1. Far from federal privileges, law enforcement investigator eliminate federal law nal or enforcement officer might sup- be understood to the FTCA's text acting scope ... within the of his or her privileges by preservation of those port the authority, imprison- for false arrest or false respect any providing [FTCA] "[w]ith arising any any out of arrest under ment be entitled ... the United States shall claim following circumstances: any ... to which United defense assert lawful, (1) peace The arrest was or the § is entitled.” 28 U.S.C. 2674. The States arrest, officer, at the time of the had argued government has here federal to believe the reasonable cause arrest privileges pro- fit within this law enforcement lawful. vision, however, rely and I therefore do not (2) pursuant The arrest was made to a on it. cause, made, charge upon reasonable felony by person the commission of a part: provides 2. statute in relevant to be arrested. liability part civil on the There shall be no 847(b) added). (emphasis § Cal.Penal Code of, no cause of action shall arise Galvin, legally justified.”). was I therefore Despite at 758. arrest 374 F.3d agree grant the district court’s between Rhoden Galvin slight tension summary on that body privilege judgment law claim should which regarding apply, principle California be reversed. should a law apply courts would enforcement Similarly, regard- issues of fact remain (not privilege) arrest the citizen’s

privilege lawfully in ing whether the officers acted clearly un- Olson does not is settled —and pointing gun picking at Tekle’s head and Gammie, it. settle Miller Cf. up by him the chain of his handcuffs. Cir.2003) (en banc) (holding agree Therefore I that the district court’s three-judge panel may pri- overrule that a grant summary judgment on Tekle’s only reasoning or precedent or “where battery and emotional distress assault authority circuit theory prior of our claims should be rеversed. reasoning clearly irreconcilable with authority” theory intervening higher or KLEINFELD, Judge: Circuit added)). (emphasis I concur in the result. I therefore hold that federal offi- would I agree pointing guns boy at the held liable under the cers should amounted to the use of excessive force if within the they acting scope FTCA are precedent, under well-established so the privilege of a conferred another federal qualified officers who did so lack immuni- statute. ty.1 handcuffs, Regarding the I would also II. reverse, narrowly. but more holding jury that a rational could Our A that Tekle’s detention was consti reasonable officer could believe that conclude equal boy legitimate could interfere with law tutionally applies unreasonable ways. in at least two He force to Tekle’s FTCA claim of false ar enforcement Rhoden, or run in leap rest. 55 F.3d at 432 n. 5 could on the officers front of See they father. (noting might give that the same conduct them as tried to control his actions). eleven, Though only to both and Bivens the evidence was rise FTCA Al- he between five and six feet tail. accordingly genuine Tekle has raised is was ternatively, neigh- run regarding sues of material fact whether he could around stirring up youths older the detention was made “without lawful borhood run already v. Sutter adults to interfere. He had privilege.” Easton Coast Cf. 485, 496, Hosp., Cal.App.4th 95 Cal. back toward the house violation of (2000) command, man, “Young turn Rptr.2d (affirming defendant’s officers’s your in the air.” plaintiffs put demurrer because “failed to al around and hands youth make him lege establishing might physically facts that the conduct of His less and ener- they complain lawfully privi dangerous, impulsive which was not but more Rhoden, adult, getic and he not a small leged”); see also 55 F.3d at 430 than was (“Once child. It not unreasonable for the plaintiff proven has the ele tort, might the defendant has the officers to believe that he interfere ments legitimate that the detention or with their activities.2 burden establish Connor, 386, 396, County, U.S. 1. See Robinson v. Solano 2. See Graham v. (1989) (“The (9th Cir.2002). 104 L.Ed.2d 443 particular 'reasonableness’ of a use of force judged perspective of a must be from the in majority respects. the district court on The errs two I would reverse First, only aspect one of the use of the handcuffs: keep it was not unconstitutional to lifting boy the to his feet the handcuffs boy the handcuffed while the warrant was behind him. No law which were fastened the being still executed. We made same purpose enforcement has offered to been City Valley,5 in mistake Mena Simi of justify bullying. that sadistic bit in Supreme and the Court corrected it Though holding pull- no case that there is small, Although Muehler v. Mena6 the ing unresisting non-suspect to his feet in was not her barefoot woman Muehler by handcuffs fastened behind him amounts threat, that her “de self a the Court held force, to the use of excessive the cases do length in handcuffs for tention establish that the needless and wanton constitutionally permissible.7 search” was pain during infliction of a search or arrest not of the The search Muehler was proposition The violates the Constitution.3 woman, but of the residence. may inflict non- police pain analogous. The casеs are Under Mueh- search, suspects during a in the detained ler, majority limiting errs in the dura- reason, any absence of law enforcement boy, to to opposed tion the search as should be so obvious to reasonable officers execution of the search warrant for the immunity that qualified cannot shield home and arrest warrant for ‍‌​​‌​​‌‌​‌​​‌‌‌‌‌‌‌​‌​‌‌‌​‌‌​‌​​​​​‌​‌​‌‌​​​‌​‌​‍the father. A policeman ought them. to know he constitutionally rejected peo- is not entitled to hurt The Court our view that the two ple no reason.4 handcuffing or three hour duration of the unconstitutional, yet Muehler made Though majority’s holding is not that, here we hold as soon as the officers (1) clear, it keeping seems to be that boy they knew the was unarmed had to boy twenty handcuffed for fifteen or min- handcuffs, though take off the even utes after the officers had searched him ongoing. search and arrest were still The excessive, weapons and found no and large supposedly number of officers who (2) any this is so well established that guns pointed boy had their at the does not it, ought reasonable officer know so the justify requiring the officers to remove the qualified immunity. officers lacked point handcuffs. The was to control the opinion appears to though hold even trouble, boy prevent him father, making from boy’s for whom warrant had issued, not to shoot him if he did make yet trouble. been had not been handcuffed Seattle, outside, brought City As we held Dawson v. the officers should authority have removed the from his “Muehler confirms an officer’s handcuffs son they building’s occupants during once ascertained that the dеtain a son was not long armed. search so as officer conducts the scene, City Valley, reasonable officer on the rather than 5. Mena v. Simi 332 F.3d 1255 hindsight.”). (9th Cir.2003) with the vision of rehearing rehearing 20/20 en banc denied, (9th Cir.2004) (Klein 354 F.3d 1015 See, Erath, e.g., 3. Meredith v. feld, J., dissenting). (9th Cir.2003) (holding forcibly throwing ground twisting a woman to the Mena, 6. Muehler v. handcuffing her arms while her amounted (2005). 161 L.Ed.2d 299 unnecessary). excessive force because it was See, e.g., 4. Headwaters Forest v. Coun- Id. at 125 S.Ct. 1465. Defense Humboldt, ty 1130-31 Cir.2002).

861 perceived court’s manner.”8 devoted district in a reasonable detention granting summary judgment error in in majority goes deny qualified on to The the favor of United States the FTCA keeping the handcuffs on immunity for 13 argument pages claim.” Tekle’s 23- boy weap- found to have no after the brief, majori- 24 in opening of his cited the qualified immunity a denial of ons. Such 8, ty opinion at footnote is that federal only that it was unconstitu- requires not liability “would have to ac- stem from the keep him handcuffed until the tional to agents,” agents tions of its and the com- and his father was house was searched mitted “clear violations of EPHRAIM’s arrested, any that reasonable offi- but also rights.” constitutional That is a Bivens that it was uncon- cer should have known claim, not a Federal Act Tort Claims bizarre, stitutional.9 This strikes me as claim.14 supports proposition no case the because setting general After out the facts and an handcuffed dur- keeping that individual law principles of on the first fourteen except for ing a search is unconstitutional brief, of the pages appellant argues our decision10reversed Muehler.11 pages through 15 that 28 the individual Tort We should not reach the Federal and the govern- defendants United States issues, Act because Tekle’s brief Claims ment rights violated constitutional of argues them.12 He exclu- does not raise qualified immunity EPHRAIM and does that his sively the officers violated consti- apply. remaining pages not two of they violated his rights, tutional not brief, 28-29, arguing are a conclusion 8, majori- In rights. state law footnote plaintiffs process rights that the due un- justifica- ty provides factually mistaken der the Constitution were violated and reaching tion for the Federal Tort Claims immunity. Ap- there is no entitlement to pages argument pellant argue anyone Act: “there are five of does not violated Seattle, 1054, City theory. 8. Dawson v. raises the FTCA I have attached as of (9th Cir.2006). appendix to this a statement of an dissent pages argument issues and the five 800, 818, claim, Fitzgerald, Judge 9. Harlow v. 457 U.S. Tashima thinks raise the (1982) (holding that I think do not raise the claim. There is a S.Ct. 73 L.Ed.2d 396 point government quali- to the doctrine that a claim not raised in officials are entitled to waived, appellant’s point immunity performing brief is fied their discretion- just simplify appellate is not court’s ary "violate functions unless their actions Rather, problem, work. there is a fairness clearly statutory established or constitutional appellee perhaps process problem, a due if an rights person of which a reasonable would known”). appeal theory loses an on a that came from a have judge’s appellant's chambers rather than an City Valley, brief. 10. Mena v. Simi 332 F.3d 1255 Cir.2003). (9th 1346(b)(1) 14.Compare (waiving § 28 U.S.C. Mena, sovereign immunity "under circumstances 11. Muehler v. 544 U.S. States, person, (2005). private the United if a where L.Ed.2d would be liable to the claimant in accordance place with the law where the act or Kang, 12. Kim ”) added), Cir.1998) ("[W]e (emphasis ordinarily omission occurred will not consider Agents v. Six Unknown Named Fed. appeal specifically Bivens matters on that are not Narcotics, 388, 396-97, distinctly argued appellant’s opening Bureau (1971) brief.”). (holding S.Ct. 29 L.Ed.2d 619 may damages allowed where that claim for Judge agents of the United States violated individu- Tashima and I have been unable to rights). agree appellant’s fairly al’s constitutional on whether the brief Act True, that the Federal Tort Claims government ar- Fisher law. state tort law, tort not violate state gues that it did law enforcement expose does not federal master of the is the appellant but liability they acting are officers to when argu- to make the appeal chose special law en- within the confines to. responded government ment upon conferred them privileges forcement mystified I am reply no brief. There is However, disagree I by other statutes. issuing three different why we are about Judge Fisher’s conclusion Tekle’s with appellants chose on an issue opinions gen- presents claim for false arrest FTCA us. put not to before uine of material fact. issues the Federal Tort we to reach Were issues, Judge agree Act I Claims

APPENDIX OF CONTENTS

TABLE P»8«<s) AUTHORITIES. Ri OF TABLE Cases. Hi iy Codes. iv Statutes..... v Rules. Court 2 I. INTRODUCTION. 2

A. CASE.. OF THE NATURE 3 OF B. STATEMENT APPEALABILITY JURISDICTION AND C. 4 PRESENTED.. ISSUES 4 D. FACTUAL BACKGROUND. 8 PROCEDURAL BACKGROUND.

E. COURT ABUSED ITS IN II. THE DISCRETION DISTRICT THE GRANTING DEFENDANTS, FOR INDIVIDUAL SUMMARY JUDGMENT THIS AND SHOULD HAVE DENIED OF ISSUES FACE OF TRIABLE MOTION IN THE THE 13 FACT EVIDENCE SUBMITTED. AND OF 13 STANDARD REVIEW. A.

B. ISSUES OF TRIABLE FACT AND EVIDENCE ARE 15 THIS PRESENT IN CASE... FHjwitaV The Violated

1. Individual Defendant» Rights Appellant And EPHRAIM’S Constitutionsl Consequences Of Are Not The Immune From 15 Their Actions.... a) Placing 16 Head. Plaintiffs Gun to During b) Detaining Plaintiff Methods and of of His Father Execution of Arrest Fourth Violates Plaintiffs Search Warrant 21 Right». Amendment i

c) Must be HaW Tima Defendants Accountable for their Vtotation* Righto.. PMnUfr* Constitutional COURT ABUSED ITS IN THE DISTRICT DISCRETION III SUMMARY FOR THE UNITED JUDGMENT GRANTING STATES, IN DENIED THIS MOTION AND SHOULD HAVE FACT OF THE TRIABLE ISSUES OF ANO FACE THE EVIDENCE SUBMITTED.

A. STANDARD OF REVIEW. ARE OF FACT AND EVIDENCE B. ISSUES TRIABLE THIS CASE. PRESENT IN Aponte Violated Plaint*/ The STATES' UNITED Rights And Appellant EPHRAIM'* Constitutional STATES Is Not Immune From The UNITED Consequences Of Their Actions.. a) Placing to Plaintiffs Head. a Gun During b) Detaining Methods of Plaintiff of of of Father arid Execution Arrest Hi* Fourth Warrant Violates Search Plaintiffs Rights. Amendment o) Must be The UNITED Held STATES Accountable for Constitutions) Violations Plaintiffs Agents... Rights Vtarr CONCLUSION. IV 32(a)(7). OF WITH F.RC.P.

CERTIFICATION COMPLIANCE juródictton appeals stial have from fin*! aR decmortM the district courts of timely . . . .* Appeal, Stats* As in his Notice United Mated filed on Ftrfgai 4<t>) 2003 pursuant Oecembar Aaofta Rule Buht-of ftpoadurt. appeals summary judgments, PfeuntWfEPHRAIM bom of from those disposed which of Plaintiffs claims herein. [CT-804-805.]

C. ISSUES PRESENTED.

1) granting tha district court Whether abused dtscredon

Summary Judgment Motion cf Defendants GARO TQROBSlAN. KEITH CHARLES BODEN. McCALMONT. JANKOWSKI, HAWKES, THOMAS DAVID a« individualsend SERVICE, Special Agents of the INTERNALREVENUE no agency of the STATES UNITED OF AMERICA.

2) granting court Whethor abused its district dwcretfon

Summary Judgment Motion STATES UNITED Defendant AMERICA. OF

D. FACTUALBACKGROUND. agents

On Match federal served and arrest search Tekle, parents, Uty warrants at the erf residence EPHRAIM'S and Salomon Street, Chahworth, Lily located at 19673 Los Alien» Solomon California. and suspected Takie were income narcotics and tax-related offenees. [CT-694.] operation, prepared plan to

Prior the IRS for execution residence, none warrants and determined that three children resided in the may sat that of the law taw officer law. No government, impunity. officers of the All defiance law, lowest, highest are creatures from (1882) obey it" are bound States United v. Lee U.S. 196, 220. overwhelming presented of «te evidenсe face In the unnecessarily despicable treatment this proving brutal court district *... Judgment the force eummary granted found that K end Plaintiff. minar [CT-79S], under circumstances’ was reasonable detain Plaintiff treed to actions. for releasing accountable thairunoonecionable from Defendants these respectfuBy court the district submits that EPHRAIM Plaintiff Court ruing, requests Honorable this discretion in this abusad its Summary Judgment order the granting for Motion of Defendants’ reverse the for Trial place tine this case court district gRAKUNff fli ITS DISCRETION COURT ABUSED DISTRICT THE

IU. SHOULD STATES. AND THE UNITED POR JUDGMENT SUMMARY ISSUES OF THE TRIABLE ‍‌​​‌​​‌‌​‌​​‌‌‌‌‌‌‌​‌​‌‌‌​‌‌​‌​​​​​‌​‌​‌‌​​​‌​‌​‍THE FACE MOTIONIN DENIED THIS HAVE SUBMITTED. FACT AMP EVIDENCE OF REVIEW. OF

A. STANDARD Summary Granting Motion STATES’ the UNITED Order In its finding dearly discretion its abused Judgment district court liability Defendants' InctividuN of the is derivative States’ United "OefencJant . . liability. . Since no triable lame fact exists as to the reasonableness during home, PtaintifPa detention «Mention of the search warrant at his battary, Likewise, assault Plaintiffs and false chums fail.... arrest must PlaintjfTs cfaim for intentional Inflictionof emotional distraes must tail because the engage Individual Defendants’ outrageous did not in extreme and conduct* CT- page line 19 to Une 10.] aware, As liability placad this any upon Honorable Court it we* STATES in UNITED a tort chum would have to stem from the actions of Us agents. Accordingly, granting the district court based its decision In the UNITED Summary Judgment solely upon finding STATES* Motion for its unconscionable acta of the individual Defendants wore "reasonable under the circumstances.'

RaintifT/Appellant proof EPHRAIM met his burden of submits he STATES, by establishing against by providing triable of fact Issues UNITED rights evidence dear violations constitutional EPHRAIM’S committed STATES, presented aoents of ft» to toe In UNITED as district court his Statement of Issues of Opposition Genuine fa Material Fact UNITED Summary Judgment STATES’ Motion for [CT-596MS03], Accordingly, requests this Court take EPHRAIM Honorable above, it, Review, judicial notice of A. Section Standard of and submits that toe cited as to the authorities Defendants are identical case therein individual his point against STATES. UNITED OF B. ISSUES FACTANDEVIDENCE TRIABLE AREPRESENTIN TIBSCASE. 3IAIEaLAfltctt.ytei«td

i- 31»UNITED -UNITES BEHtVMM'tCflnittfathMiil..Bl8hll...AfflLJrht. Frflnilttt-Caftftgm*ft»-QfIhtfr STATESft-NaUmmunt Acttoni-

Clearly, provided to evidence the district court [see Qenuin» CT*686403) proves of of Issue» mat Plaintiffs'Statement MaterialFeet of of UNITED in their treatment ctfthis conduct STATES 11- «aunts hither, year-otd boy durinQ of his was and in dear the arrest unreasonable rights. his of Constitutional violation above,

As «halt STATES UNITED shielded stated qualified immunity liability damages for civil when conduct of its from tha dearly rights agents a violates or reasonable established constitutional which of supra, Behrens v. Palletier. parson 299. Tha would have at taw known. law, dearly governing the was established conduct under that officials* and. Katz reasonable officers have believed that their ooukt not conduct tawful. v. United States, supra, at right sufficiently case were issue in this

The contours agents time of STATES March dear the conduct the UNITED EPHRAIM, boy, right 11-year-old be free had from detention, force, placement excessive threat death custodial heed, gun to responsible UNITED and the STATES bit must held agonfo. unlawful of its conduct

») fiHnfrPUnffTi Ptartimi above, presented

As was court statsd the district gun Statement Genuine Issue* Fact Plaintiffs Material {CT-596-603I. bead, pointed throughout weapons end was hew worn his EPHRAfM's at Wm agents tita detention STATES. tbe UNITED hereby Court to

EPHRAIM refers this Honorable hfs above, argument presented end authorities dear and submits that the contours guns (atfoough governing suspeсts pointing of of foe tew this minor child pointing put unreasonably suspect) reasonable officers on notice that cat boy guns n-year*afd or an violate their at the innooent would his heed rights. constitutions! circumstances, inappropriate those for the

Under waa law, go as a matter of and the caae to a casa must district court to decide Otis agents’ jury conduct was reasonable. whether the UNITEDSTATES' decide b) gf.Qrtatown JUrartfonat Ptaíntiff Pudra Mfttoflt

Amhrtaf cf mAEathfo-and.ftarehWafrantYlsbttii

PtotoSffffamitiAnwndmwrtRiabte- repeating agents It beers the UNITED these executing simply STATES while of his father "detain*Plaintiff foe arrest did warrants, period held in handcuffsfor an extended but rather Plaintiff search direction, head, time, in Plaintiffs gun firearms brandished Plaintiff» held beck, sit on the had Plaintiff his from behind chains handcuff Plaintiff tifted feet, Plaintiffs feat, inauted bare sit stoat in his had Plaintiff bare his curb in upon The*» origin, spat [CT-596-603.] shoe*. place Plaintiffs parents' detention, obviously boy during acts, 11-yaar-okt custodial perpetrated this upon liability on tha UNITED rights, placed direct Constitutional violated his agents, of its for tha actions STATES this Court to tha again Honorable retara

EPHRAIM facts presented the malarial above, submits cited authorities of this tha about treatment concerns* serious "additional court raised district «gents, as their STATES these UNITED during detention young his boy (hese circumstances. [CT-6M- under excessive unreasonable were actions at Trial. be addressed These must concents 603.] Mtftlw,

«) HttMArawaUato STATES WHITED Bf Constitutional of Plaintiffs «ha Vtolattena iter aaMiJnfttwffAflim»- in Plaintiffs court undteputabiy to tha district shown

As UNITED these (CT-596>603), Material Fact Issues Genuine Statement rights. Plaintiff constitutional ctoeriy Plaintiffs agenta violatod STATES cese judicial notice take Court Honorable requests this respectfully supra, as Apante of Narcotics. Bureau of Federal Six Unknown Named Bevins above. cited overwhetminQ presented

In the face of the to evidence the granted previno despicable court the district of treatment this minor H the Plaintiff.

summary judgment «genie die of die STATES *... end found diet UNITED did engage outrageous relessmg in extreme (CT>797], conduct* the UNITED agsms. accountability STATES its of foe unccnsrionsble actions of reapectfutiy Ptaintiff EPHRAIM that the district submits court rating, requests its abused discretion this In Honorable Court this granting Judgment Summary STATES’Motion reverse UNITED fix place order the dlatrictcourt to this case in for Trial. line CONCLUSION

IV. upon

This is rite Court called review both law and and to Met drew line what te le and as to not reasonable behavior. Government actions which “offend decency process protection the canons of fairness* due violate Rochin California(1952) Constitution. immunity claims of

The eN the from Defendants entittemem depend accepts daime on whether the trier Piaintrifa of facts Defendants' dearly genuine of the facts dispute versions or is facts Plaintiffs. and me material, indeed, process are due daim. cantnti jurors «preponderance of

Plaintiffbeleves reasonable wiBfind Therefore, evidence is to verdict in entitled this matter. that Plaintiff based foregoing, hereby respectfully requested Court this Honorable 1) Appeals judgments erroneously summary In favor entered reverse AMERICA, 2) Individual Defendants and UNITED STATES OF Defendant as Trial, bring remain to issues offset case this 16,2004. April

Dated: America,

UNITED STATES Plaintiff-Appellee, BETTS, Defendant- Marcus Brandon Appellant. No. 06-50205. ‍‌​​‌​​‌‌​‌​​‌‌‌‌‌‌‌​‌​‌‌‌​‌‌​‌​​​​​‌​‌​‌‌​​​‌​‌​‍Appeals, Court of United States Ninth Circuit. 10, 2007. Argued and Submitted Jan.

Case Details

Case Name: Tekle Ex Rel. Tekle v. United States

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 3, 2007

Citation: 511 F.3d 839

Docket Number: 04-55026

Court Abbreviation: 9th Cir.