Jennifer Donovan v. J. Phillips , 685 F. App'x 611 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 29 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JENNIFER ANN DONOVAN, No. 15-15605
Plaintiff-Appellant, D.C. No. 3:14-cv-00680-CRB
v.
MEMORANDUM *
J. A. PHILLIPS,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted March 14, 2017
San Francisco, California
Before: FERNANDEZ, MURGUIA, and WATFORD, Circuit Judges.
Plaintiff Jennifer Donovan appeals the district court’s grant of summary
judgment in favor of Defendant Joshua Phillips in her 42 U.S.C. § 1983 action
alleging excessive force and bad-faith arrest. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
1. We review de novo both a grant of summary judgment and a grant of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
summary judgment on qualified immunity grounds. Blankenhorn v. City of
Orange, 485 F.3d 463, 470 (9th Cir. 2007). In analyzing qualified immunity, we
employ a two-prong analysis; we determine whether the facts show the
government actor’s “conduct violated a constitutional right,” and “whether the
right was clearly established” at the time of the alleged unlawful action. See
Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson v.
Callahan, 555 U.S. 223 (2009).
2. The district court properly granted summary judgment on Donovan’s
excessive force claim. The Fourth Amendment prohibits the use of “excessive
force” arising in the context of an arrest or investigatory stop, and all claims of
excessive force are analyzed under the Fourth Amendment’s “reasonableness”
standard, using the framework the Supreme Court set forth in Graham v. Connor,
490 U.S. 386 (1989). The objective reasonableness standard balances: (1) “‘the
nature and quality of the intrusion on the individual’s Fourth Amendment
interests’” against (2) “the countervailing governmental interests at stake.”
Graham, 490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). In
balancing the competing interests, we must be mindful that “police officers are
often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in a
particular situation.” Id. at 396–97.
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3. Here, the video recording of the traffic stop shows that the nature and
quality of the intrusion on Donovan’s personal security were relatively minimal.
After Donovan failed to comply with Officer Phillips’ repeated orders to remain in
her vehicle while Officer Phillips administered a field sobriety test to Donovan’s
partner, Officer Phillips placed Donovan in a control hold. Officer Phillips
approached Donovan, gripped her wrist, and pulled her arm downward, causing
Donovan to roll onto the ground. Even assuming Donovan made no aggressive
movements towards Officer Phillips before his use of force, under the totality of
the circumstances, Officer Phillips had a substantial interest in taking the necessary
steps to secure Donovan quickly once she exited her car. The Supreme Court has
expressly recognized that traffic stops “are especially fraught with danger to police
officers.” Arizona v. Johnson, 555 U.S. 323, 330 (2009) (internal quotation marks
and citation omitted). Further, Officer Phillips was outnumbered and, because
Donovan refused to comply with his orders to stay in her vehicle, Officer Phillips
had to monitor two potentially intoxicated individuals on the side of a highway at
night. See Gonzalez v. City of Anaheim, 747 F.3d 789, 804 (9th Cir. 2014)
(recognizing that the inherent safety considerations surrounding traffic stops “have
even greater salience” when an officer suspects an individual is intoxicated).
Because Officer Phillips used minimal force against Donovan and, under the
circumstances, his interest in quickly securing her was significant, Officer Phillips’
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use of force was reasonable as a matter of law.
4. Even if we were to conclude that there was a triable issue as to
whether Officer Phillips’ use of force against Donovan was objectively excessive,
Officer Phillips is entitled to qualified immunity under the second prong of our
analysis. See Pearson, 555 U.S. at 236. At the time Officer Phillips arrested
Donovan, it was well-settled that the Fourth Amendment prohibits the use of
“excessive force” arising in the context of an arrest or investigatory stop. See
Graham, 490 U.S. at 395–96. At the same time, however, it was not beyond debate
that the totality of the circumstances surrounding Officer Phillips’ seizure of
Donovan would indicate that his use of force was clearly unreasonable. See
Ashcroft v. al–Kidd, 563 U.S. 731, 742 (2011) (noting that the Supreme Court has
“repeatedly told courts—and the Ninth Circuit in particular—not to define clearly
established law at a high level of generality” (citation omitted)).
5. Officer Phillips’ conduct was in-line with the California Highway
Patrol’s Highway Patrol Manual, which indicates that an officer may appropriately
employ a “control hold” when a subject is “not respond[ing] to verbal commands
but also offers no physical form of resistance.” See Chew v. Gates, 27 F.3d 1432,
1446–47 (9th Cir. 1994) (holding that the officers were entitled to qualified
immunity because, even if their use of a police dog to effect the suspect’s arrest
constituted excessive force, the officers could not have known that the
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department’s canine policy was unconstitutional). Further, there is no Ninth Circuit
or Supreme Court authority that could have provided Officer Phillips with
sufficient fair notice that his use of a control hold, under the circumstances in this
case, would violate federal constitutional law. Kennedy v. City of Ridgefield, 439
F.3d 1055, 1065 (9th Cir. 2006) (“To determine whether a right is clearly
established, the reviewing court must consider whether a reasonable officer would
recognize that his or her conduct violate[d] that right under the circumstances
faced, and in light of the law that existed at that time.”). Without such fair notice,
we hold that Officer Phillips is entitled to qualified immunity.
6. The district court also properly granted summary judgment on
Donovan’s bad-faith arrest claim. Officer Phillips had probable cause to arrest
Donovan for a violation of California Penal Code § 148(a)(1). See Cal. Pen. Code
§ 148(a)(1) (making it a misdemeanor to “willfully resist[], delay[], or obstruct[]
any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or
her office or employment”). The existence of probable cause defeats Donovan’s
bad-faith arrest claim. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001)
(“If an officer has probable cause to believe that an individual has committed even
a very minor criminal offense in his presence, he may, without violating the Fourth
Amendment, arrest the offender.”); Allen v. McCurry, 449 U.S. 90, 103 n.18
(1980) (stating that “a state court decision that the police acted legally [i.e., with
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probable cause] cannot but foreclose a [§ 1983] claim that they acted in bad faith”).
AFFIRMED.
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FILED
Donovan v. Phillips, No. 15-15605
MAR 29 2017
WATFORD, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I would reverse on the Fourth Amendment excessive force claim. Our cases
require that a jury be permitted to decide whether the force used by the officer
against Jennifer Donovan was objectively reasonable or not.
The familiar framework from Graham v. Connor, 490 U.S. 386 (1989),
guides the objective reasonableness analysis. That framework calls for balancing
the severity of the force used by the officer against the government’s
countervailing justifications for deploying that level of force. Id. at 396; Young v.
County of Los Angeles, 655 F.3d 1156, 1161 (9th Cir. 2011).
The level of force used here was not lethal, but it was nonetheless far from
trivial. The officer walked up to Donovan and asked her, “Is there going to be a
problem?” Then, without warning, he put her in a wrist lock and threw her to the
ground, causing her to fall on her right shoulder. The fall injured Donovan’s
rotator cuff, an injury that continued to hobble her two years after the incident
occurred in October 2012.
Against that intrusion on Donovan’s Fourth Amendment interests, we must
balance the government’s justifications for using that level of force. That inquiry
entails examining, among other factors, the severity of the crime Donovan was
suspected of committing, whether she posed an immediate threat to the safety of
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the officer or others, and whether she was actively resisting arrest or attempting to
flee. Young, 655 F.3d at 1163. Whether Donovan posed a threat to the safety of
the officer or others is the most important of these considerations. Id.Each of these factors weighs in favor of a determination that the officer’s use
of force was objectively unreasonable. First, the crime Donovan committed was,
at most, a non-violent misdemeanor—disobeying the officer’s order to stay in the
car, in violation of California Penal Code § 148(a)(1). We have previously
observed that minor offenses of this sort “will tend to justify force in far fewer
circumstances than more serious offenses, such as violent felonies.” Young, 655
F.3d at 1165. Second, taking the facts in the light most favorable to Donovan (as
we must on summary judgment), Donovan posed no threat to the officer or anyone
else. She got out of the car and took two or three steps in the officer’s direction
with her hands outstretched, palms up, in a posture that merely asked, “What’s
going on?” She was not acting aggressively and said nothing to the officer that
could remotely be deemed threatening. And third, Donovan was not actively
resisting arrest or attempting to flee—indeed, the officer had not yet told her she
was under arrest when he threw her to the ground. She was doing nothing more
than offering passive resistance by refusing to comply with the officer’s commands
to stay in the car.
Page 3 of 4
To determine whether Donovan’s Fourth Amendment rights were violated,
“we must balance the amount of force applied against the need for that force.”
Bryan v. MacPherson, 630 F.3d 805, 823–24 (9th Cir. 2010) (internal quotation
marks omitted). In my view, a rational jury could strike that balance in Donovan’s
favor. See Blankenhorn v. City of Orange, 485 F.3d 463, 478–79 (9th Cir. 2007).
We have explicitly held that when confronted with a passively resisting suspect
who poses no safety threat and is not attempting to flee, an officer may employ no
more than trivial force to gain compliance. Nelson v. City of Davis, 685 F.3d 867,
881 (9th Cir. 2012). The law on this point was clearly established before 2012, so
the officer had fair notice that using non-trivial force in these circumstances would
be objectively unreasonable. See Gravelet-Blondin v. Shelton, 728 F.3d 1086,
1093 (9th Cir. 2013) (“The right to be free from the application of non-trivial force
for engaging in mere passive resistance was clearly established prior to 2008.”).
Applying a wrist lock and throwing someone to the ground cannot be deemed a
trivial amount of force.
The officer attempted to justify his actions by claiming that he felt
threatened by Donovan as she stood passively beside her car, palms up in a posture
of inquiry. He testified that as he walked up to Donovan (who was herself a police
officer for the State of California), she dropped one foot back into a “bladed
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stance,” which law enforcement officers are trained to adopt when preparing for a
physical confrontation. But as the district court recognized, whether Donovan
adopted such a stance is a disputed factual question that a rational jury could easily
resolve against the officer, given the clarity of the videotape we have of the
encounter. A jury could conclude from the videotape that Donovan did not adopt
any stance—or do anything else—that could be interpreted as a sign of aggression
or impending combat.
It is true that officers must be given latitude for having to make split-second
judgments about how to react to rapidly unfolding events. Graham, 490 U.S. at396–97. But on these facts, even after granting the officer such latitude, I think a
rational jury could conclude that the force used against Donovan was objectively
unreasonable.