“In assessing the state of the law at the time of Blankenhorn’s 5 arrest, we need look no further than Graham’s holding that force is only justified when there is a 6 need for force.”
How later courts described this case
- “In assessing the state of the law at the time of Blankenhorn’s 5 arrest, we need look no further than Graham’s holding that force is only justified when there is a 6 need for force.”
Written by the judges who cited it.
The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 ANTHONY THOMAS, Case No. 18-cv-07484-JD
8 Plaintiff,
ORDER RE SUMMARY JUDGMENT
v.
9
Re: Dkt. No. 63
10 CITY OF CONCORD, et al.,
Defendants.
11
12 This order resolves defendants’ motion for summary judgment and/or partial summary
13 judgment. Dkt. No. 63. The parties’ familiarity with the record is assumed.
14 DISCUSSION
15 I. EXCESSIVE FORCE CLAIM
16 The Court previously rejected defendants’ main summary judgment argument that the “key
17 cell phone video” clearly shows that Officer Savage “acted reasonably in trying to lawfully arrest
18 Plaintiff.” Dkt. No. 72. To the Court’s eye, the video “did not capture the salient events in
19 sufficient detail to conclude that there are no genuine disputes of fact about the reasonableness of
20 Officer Savage’s conduct as he arrested plaintiff.” Id. (citing Graham v. Connor, 490 U.S. 386,
21 396 (1989)).
22 It is true that plaintiff Thomas does not dispute the lawfulness of the arrest itself. See Dkt.
23 No. 65 at 2 n.2. Even so, the Fourth Amendment and its “reasonableness” standard placed limits
24 on the amount of force the police officers could lawfully use in the course of arresting Thomas.
25 Graham, 490 U.S. at 395. “Determining whether the force used to effect a particular seizure is
26 ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality
27 of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing
1 circumstances of each particular case, including the severity of the crime at issue, whether the
2 suspect poses an immediate threat to the safety of the officers or others, and whether he is actively
3 resisting arrest or attempting to evade arrest by flight.” Id. at 396 (some quotations and citations
4 omitted). “As in other Fourth Amendment contexts, . . . , the ‘reasonableness’ inquiry in an
5 excessive force case is an objective one: the question is whether the officers’ actions are
6 ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to
7 their underlying intent or motivation.” Id. at 397 (citations omitted).
8 Defendants’ summary judgment Exhibit I, a cell phone video, shows the denouement of
9 Thomas’s arrest. The video was taken from some distance and has the shaky effects of a handheld
10 camera. The view is obscured at times by a pole or people’s backs, and the camera was not
11 always pointed in the right direction, so that the video does not provide a continuous view of what
12 happened between Thomas and the police officers. The video is not clear enough to rule out
13 plaintiff’s allegations of excessive force.
14 It is undisputed that Officer Savage was at the scene to arrest Thomas for two
15 misdemeanor crimes: domestic battery and damage to a communication device with intent to
16 prevent help. It is also undisputed that when Officer Savage first approached Thomas at the gas
17 station (without any apparent back-up), Thomas was holding a tool in his hand, which he dropped
18 after Officer Savage pointed his firearm at him. The video shows that after Officer Savage
19 deployed his Taser at Thomas, Thomas takes off running and Officer Savage chases after him.
20 Immediately before the actual arrest, Thomas and Officer Savage are seen running down
21 an empty residential street. When Officer Savage catches up to Thomas, Thomas puts his visibly
22 empty hands up and gets down on his knees. At this point, Thomas is no longer trying to evade
23 arrest by flight, and does not appear to pose a threat to the officer. Nevertheless, because plaintiff
24 did not heed a command to “get on your face,” at the 1:20 mark in the video, Officer Savage
25 “grabs Plaintiff’s right arm.” Dkt. No. 63 at 10. Seconds later, Corporal Blakely, who had just
26 arrived at the scene, grabs plaintiff’s left arm. Id. Officer Savage “pushe[d] [plaintiff’s] torso
27 towards the ground.” Id. at 10-11. In plaintiff’s telling, which the video does not clearly prove or
1 Mr. Thomas’s head and neck area while both of his knees and bodyweight appear to be on
2 Mr. Thomas’s back.” Dkt. No. 65 at 5. His right knee comes off, but his left knee and left hand
3 remain pushing and applying pressure, “for a total of 21 seconds of continuous downward pressure
4 to the head and neck area while Mr. Thomas’s head was on the pavement/cement.” Id. at 5-6. As
5 plaintiff correctly notes, Thomas is “still on the ground when the . . . video stopped recording,”
6 and because the video is not clear, the Court must credit plaintiff’s contention that at the end of the
7 recording, it appears Officer Savage and Corporal Blakely are continuing to “plac[e] their knees
8 on the back of Mr. Thomas or putting pressure on [his] back.” Id. at 6. Defendants say that while
9 all of this was unfolding, Thomas was “pushing up off of the ground,” Dkt. No. 63 at 7, resisting
10 being handcuffed, but that too is not clearly visible on the video. Thomas contends that he was
11 seriously injured because of the pressure exerted on him by the officers that day, and he has
12 submitted evidence that he was medically diagnosed as having suffered a “large left sided C5/6
13 disc herniation causing some cord compression on the left, but severe left sided foraminal
14 stenosis.” Dkt. No. 65-2 (Ex. 10) at ECF p. 84.
15 Overall, this is not a record that warrants summary judgment for defendants on the issue of
16 the reasonableness of the force used by Officer Savage. The video evidence does not demonstrate
17 that there are no genuine disputes as to any material fact, and a jury would be required to
18 determine the full nature of the force exerted on plaintiff and whether that was reasonable in light
19 of the facts and circumstances of this case. Viewing the evidence in the light most favorable to
20 Thomas, a reasonable jury could find that the officers’ use of force here was excessive.1 In
21 reaching this conclusion, the Court is mindful that while “not every push or shove, even if it may
22
1 The video evidence submitted by defendants was the most important to the Court’s analysis and
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by itself supports the denial of summary judgment on the reasonableness issue. As such,
defendants’ evidentiary objections to the expert declaration submitted by plaintiff are overruled as
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moot. Dkt. No. 66 at 14-15. The same goes for defendants’ objections to plaintiff’s exhibits 2 (a
police report) and 5 (a call history report) -- those documents were not material to the Court’s
25
analysis. Defendants’ objections to plaintiff’s Mercy General Hospital medical records as
irrelevant and prejudicial are overruled. Defendants’ hearsay and authentication objections to
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those medical records are also overruled. The records were attached to an affidavit from the
custodian of records (see Dkt. No. 65-2 at ECF p. 80), and the contents of the records could be
27
admitted into evidence at trial in a variety of ways. See Fraser v. Goodale, 342 F.3d 1032, 1036
1 seem unnecessary in the peace of a judge’s chambers is a violation of the Fourth Amendment, it is
2 equally true that even where some force is justified, the amount actually used may be excessive.”
3 Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002) (quotations and citations omitted). Also, the
4 reasonableness of a particular use of force is “ordinarily a question of fact for the jury,” Liston v.
5 Cnty. of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997), and so summary judgment is to be
6 granted sparingly in cases alleging excessive force. Maxwell v. Cnty. of San Diego, 708 F.3d
7 1075, 1086 (9th Cir. 2013).
8 In days gone by, this case would almost certainly have been on its way to a jury trial,
9 including on the issue of qualified immunity. Qualified immunity is “an immunity from suit,”
10 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation omitted), and it cloaks public officials
11 unless “(1) the facts adduced constitute the violation of a constitutional right; and (2) the
12 constitutional right was clearly established at the time of the alleged violation.” Mitchell v.
13 Washington, 818 F.3d 436, 443 (9th Cir. 2016). “The first prong ‘calls for a factual inquiry’ while
14 the second is ‘solely a question of law for the judge.’” Shen v. Albany Unified School District,
15 436 F. Supp. 3d 1305, 1309 (N.D. Cal. 2020) (quoting Dunn v. Castro, 621 F.3d 1196, 1199 (9th
16 Cir. 2010)). “[B]oth prongs must be satisfied for a plaintiff to overcome a qualified immunity
17 defense.” Id. (quoting Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1115 (9th Cir. 2017)).
18 Under either prong, courts “may not resolve genuine disputes of fact in favor of the party seeking
19 summary judgment,” and must instead “view the evidence in the light most favorable to the
20 opposing party.” Tolan v. Cotton, 572 U.S. 650, 656 (2014).
21 Where, as here, a plaintiff has shown that there is a question of fact about the
22 reasonableness of the force used by police officers to arrest him, earlier cases would have readily
23 supported the conclusion that the factual disputes on the excessive force issue also precluded
24 summary judgment for the officer defendants based on qualified immunity. See, e.g., Lolli v.
25 Cnty. of Orange, 351 F.3d 410, 421-22 (9th Cir. 2003) (“If Lolli’s version of the facts ultimately
26 prevails, there is a reasonable likelihood that the officers would not be entitled to qualified
27 immunity.”); Liston, 120 F.3d at 976 (noting “that a number of our recent cases have held that in
1 the inquiry made on the merits.”). In doing so, courts sometimes focused on principles in
2 assessing the second prong of the qualified immunity inquiry, i.e., whether the constitutional right
3 was clearly established at the time of the alleged violation. See Blankenhorn v. City of Orange,
4 485 F.3d 463, 481 (9th Cir. 2007) (“In assessing the state of the law at the time of Blankenhorn’s
5 arrest, we need look no further than Graham’s holding that force is only justified when there is a
6 need for force.”).
7 The legal circumstances have changed. Our circuit has expressly noted that the United
8 States Supreme Court “has reversed a number of federal courts, including ours, in qualified
9 immunity cases because we failed to abide by the longstanding principle that ‘clearly established
10 law’ should not be defined at a high level of generality.” Longoria v. Pinal Cnty., 873 F.3d 699,
11 704 (9th Cir. 2017) (quoting White v. Pauly, 137 S.Ct. 548, 551-52 (2017) (per curiam)) (some
12 quotations omitted); see also Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018) (per curiam) (“This
13 Court has repeatedly told courts -- and the Ninth Circuit in particular -- not to define clearly
14 established law at a high level of generality.”) (quotations and citations omitted); City of
15 Escondido, Cal. v. Emmons, 139 S.Ct. 500, 503 (2019) (per curiam) (“Under our cases, the clearly
16 established right must be defined with specificity. . . . That is particularly important in excessive
17 force cases[.]”). Under the second prong of the qualified immunity inquiry, “[a]n officer cannot
18 be said to have violated a clearly established right unless the right’s contours were sufficiently
19 definite that any reasonable official in [his] shoes would have understood that he was violating it.”
20 City & Cnty. of San Francisco, Cal. v. Sheehan, 575 U.S. 600, 611 (2015) (quotations omitted).
21 This “do[es] not require a case directly on point, but existing precedent must have placed the
22 statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741
23 (2011). And while “general statements of the law are not inherently incapable of giving fair and
24 clear warnings to officers[,] . . . the general rules set forth in ‘Garner and Graham do not by
25 themselves create clearly established law outside an ‘obvious case.’” Kisela, 138 S.Ct. at 1153.
26 This is not an “obvious case” in which the rule in Graham -- “that force is only justified
27 when there is a need for force,” Blankenhorn, 485 F.3d at 481 -- is sufficient to satisfy the second
1 one that still would have gone to the jury had it not been for the officers’ qualified immunity.
2 Among other things, even under plaintiff’s version, he was indisputably uncooperative in his
3 arrest, holding a tool that could have been used as a weapon at the outset of his encounter with
4 Officer Savage and running away from him.
5 And plaintiff has failed to identify any precedent that “squarely governs” the specific facts
6 at issue. See Nicholson v. City of Los Angeles, 935 F.3d 685, 695 (9th Cir. 2019); Shafer, 868
7 F.3d at 1117-18 (officer entitled to qualified immunity because plaintiff “fail[ed] to identify
8 sufficiently specific constitutional precedents to alert [the officer] that his particular conduct was
9 unlawful”). Ventura v. Rutledge, 978 F.3d 1088 (9th Cir. 2020), is illustrative. There, the circuit
10 affirmed the district court’s conclusion that a police officer was entitled to qualified immunity
11 because “no controlling precedent had ‘clearly establish[ed] that [plaintiff’s] right under the
12 Fourth Amendment to be free from the excessive use of deadly force by police would be violated
13 when he was shot and killed as he advanced toward an individual he had earlier that day assaulted,
14 while carrying a drawn knife and while defying specific police orders to stop.” Ventura, 978 F.3d
15 at 1090. Similarly here, Officer Savage is entitled to qualified immunity because no controlling
16 precedent had clearly established that Thomas’s right under the Fourth Amendment to be free
17 from the excessive use of force by police would be violated when Thomas was subjected to a
18 minimum of 21 seconds of pressure on his head, neck and back as he remained on his knees with
19 his hands up, but was refusing to comply with police orders to “get on his face.”
20 To be sure, a policy argument can be made that close cases like this one should be tried
21 before a jury made up of community members. But controlling precedent mandates that Officer
22 Savage is protected by the quality immunity doctrine, and so judgment must be entered against
23 Thomas on his excessive force claim.
24 II. DENIAL OF MEDICAL CARE CLAIM
25 Under the Fourth Amendment, officers must provide objectively reasonable medical care
26 after an arrest. Tatum v. City and Cnty. of San Francisco, 441 F.3d 1090, 1098-99 (9th Cir. 2006).
27 The Fourth Amendment does not, however, require an officer to “provide what hindsight reveals
1 Plaintiff’s arguments and evidence for this claim are too thin and sketchy to create a
2 genuine dispute of material fact that the officers acted in an objectively unreasonable manner as to
3 his post-arrest medical care. See, e.g., Dkt. No. 65-2 at ECF pp. 14-15 (stating that after his arrest,
4 he “hurt all over” but his wrist hurt in particular because Officer Savage was “lifting me up by
5 them”); id. at ECF p. 17 (Q: “Did you tell anybody, Officer Savage or anybody at the jail that you
6 believe you suffered any neck injury that evening?” A: “No, I didn’t.”).
7 The evidence submitted by plaintiff does not specify when in the course of his arrest and
8 detention he sustained an injury requiring medical treatment. Nor does it establish that a
9 reasonable officer in defendants’ position would have been aware that Thomas needed medical
10 attention, or the medical care that should have been provided. It is also undisputed that the
11 officers did call an ambulance to the scene. See Dkt. No. 65-2 at ECF p. 13. Consequently, even
12 viewing the evidence in the light most favorable to plaintiff, judgment must be entered against
13 plaintiff on his denial of medical care claim as well.
14 III. MUNICIPAL LIABILITY CLAIMS
15 On the issue of municipal liability, plaintiff has made only the conclusory argument that
16 the City of Concord “fail[ed] to train its employees . . . to the level of actionable ‘deliberate
17 indifference’ where ‘the need for more or different training is so obvious, and the inadequacy so
18 likely to result in the violation of constitutional rights, that the policymakers of the city can
19 reasonably be said to have been deliberately indifferent to the need.” Dkt. No. 65 at 18 (quoting
20 Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978)).
21 Plaintiff has submitted no evidence of a custom, pattern or practice, or any other evidence
22 that “through its omissions [the City of Concord] should be held responsible for the constitutional
23 violations of its employees.” Lolli, 351 F.3d at 415. “[E]vidence of the failure to train a single
24 officer is insufficient to establish a municipality’s deliberate policy.” Blankenhorn, 485 F.3d at
25 484-85. Judgment will be entered against plaintiff on his municipal liability claims too.
26 IV. STATE LAW CLAIMS
27 The “doctrine of qualified immunity does not shield defendants from state law claims.”
1 usual case in which all federal-law claims are eliminated before trial, the balance of factors to be
2 || considered under the pendent jurisdiction doctrine -- judicial economy, convenience, fairness, and
3 comity -- will point toward declining to exercise jurisdiction over the remaining state-law claims.”
4 Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (quotations and citation
5 || omitted); see also 28 U.S.C. § 1367(c)(3).
6 The Court sees no reason to depart from this rule, especially where proceeding in state
7 court on his state law claims may afford plaintiff the opportunity for a jury trial. Having disposed
8 of all of plaintiff's federal claims in this case, the Court consequently declines to exercise
9 supplemental jurisdiction over the state claims and dismisses them without prejudice.
10 CONCLUSION
11 Plaintiff's state law claims are dismissed without prejudice. Judgment will be entered
12 against plaintiff on his federal claims and the case will be closed.
13 IT IS SO ORDERED.
|| Dated: June 16, 2021
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5 JAMES PONATO.
nited fates District Judge
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