Fernando Del Valle v. Scott Thorne ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 23 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO DEL VALLE, No. 19-15313
Plaintiff-Appellee, D.C. No. 4:17-cv-03611-JSW
v.
MEMORANDUM*
SCOTT THORNE,
Defendant-Appellant,
and
COUNTY OF SONOMA; et al.,
Defendants.
FERNANDO DEL VALLE, No. 19-15350
Plaintiff-Appellee, D.C. No. 4:17-cv-03611-JSW
v.
BEAU ZASTROW,
Defendant-Appellant,
and
SCOTT THORNE; et al.,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendants.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted January 8, 2020
San Francisco, California
Before: W. FLETCHER and FRIEDLAND, Circuit Judges, and HILLMAN,**
District Judge.
Defendants-Appellants Scott Thorne and Beau Zastrow separately appeal
from the district court’s denial of their motions for summary judgment based on
qualified immunity. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de
novo, Greisen v. Hanken, 925 F.3d 1097, 1107 (9th Cir. 2019), we affirm as to
Thorne and reverse as to Zastrow.
1. Viewing the evidence in the light most favorable to Plaintiff-Appellee
Fernando Del Valle, a reasonable jury could conclude that Thorne’s use of a taser
and baton on Del Valle constituted excessive force.
In September 2016, Thorne and Zastrow, who were then Sonoma County
deputy sheriffs, responded to a neighbor’s call about a domestic dispute at Del
Valle’s house. The neighbor reported that the dispute sounded verbal, not
**
The Honorable Timothy Hillman, United States District Judge for the
District of Massachusetts, sitting by designation.
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physical, and that Del Valle’s wife sounded like the aggressor. The deputies
arrived to find Del Valle alone in a locked bedroom. Bodycam footage shows that
when Thorne kicked open the door and entered, Del Valle was lying shirtless on
the bed, using a cellphone with both hands in view. Thorne ordered Del Valle
several times to stand up. Del Valle did not do so, instead stating calmly that he
was calling his lawyer. Thorne reached out four times to grab Del Valle’s right
forearm, and each time Del Valle pulled his arm out of Thorne’s grasp. On the
fifth occasion, Thorne appeared to reach for Del Valle’s cellphone, causing Del
Valle to push Thorne’s arm away. Immediately, Thorne discharged his taser into
Del Valle’s bare chest from close range. Several seconds later, Thorne struck Del
Valle’s right knee with a baton.1
A reasonable juror could conclude that Thorne’s use of force under these
circumstances was objectively unreasonable. See Graham v. Connor, 490 U.S.
386, 396-97 (1989). Del Valle had not been verbally or physically aggressive and
did not pose an immediate threat to anyone. He had not committed any severe
offenses. See Young v. County of Los Angeles, 655 F.3d 1156, 1164-65 (9th Cir.
2011). And although he actively resisted Thorne’s attempts to grab his arm and
cellphone, that “resistance did not involve any violent actions towards the
1
Before the district court, Thorne sought and was denied qualified immunity
as to both his deployment of the taser and his use of the baton. Thorne contests
only the denial of qualified immunity as to his use of the taser in this appeal.
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officers.” See Mattos v. Agarano, 661 F.3d 433, 445 (9th Cir. 2011) (en banc);
Bryan v. MacPherson, 630 F.3d 805, 830 (9th Cir. 2010). Moreover, it was clearly
established at the time of Thorne’s actions that discharging a taser on a non-
threatening individual who had not committed a serious crime and had not engaged
in aggressive or violent resistance would violate the Fourth Amendment. See
Mattos, 661 F.3d at 445-46; see also Bonivert v. City of Clarkston, 883 F.3d 865,
880 (9th Cir. 2018). The district court thus appropriately denied Thorne’s motion
for summary judgment.
2. Del Valle does not dispute that Zastrow did not personally use
unreasonable force but argues that he is liable as an “integral participant” in
Thorne’s allegedly excessive use of force. We disagree.
A defendant officer may be held liable as an integral participant in another
officer’s constitutional violation if the defendant was “aware of the [other
officer’s] decision” to violate the law, “did not object to it,” and “participated in
some meaningful way” in the violation. Boyd v. Benton County, 374 F.3d 773, 780
(9th Cir. 2004). After Del Valle left the bed, Zastrow held down Del Valle’s legs
while Thorne applied a six-second carotid restraint on Del Valle and administered
several baton blows. But Del Valle has not shown that Zastrow was aware Thorne
would engage in such force or that he had an opportunity to object. Zastrow
maintains that he did not know Thorne was applying the carotid restraint because
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Thorne’s body was blocking Zastrow’s view. Del Valle has identified no evidence
to controvert this account. And Zastrow could not have anticipated Thorne’s
striking Del Valle with a baton, which occurred with minimal forewarning.
Accordingly, Zastrow’s role did not render him an integral participant in Thorne’s
actions, and Zastrow is entitled to qualified immunity.
AFFIRMED in part, REVERSED in part, and REMANDED.2 The parties
shall bear their own costs on appeal.
2
We decline Del Valle’s request to impose sanctions on Thorne and Zastrow
for bringing frivolous appeals. These appeals were not “wholly without merit,”
and thus not frivolous for the purposes of Federal Rule of Appellate Procedure 38.
See Blixseth v. Yellowstone Mountain Club, LLC, 796 F.3d 1004, 1007 (9th Cir.
2015) (quotation marks omitted).
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