David Breidenbach v. City of Spokane

FILED

NOT FOR PUBLICATION JUL 22 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTATE OF JOSHUA LEVY, deceased, No. 12-35119

SUSAN LEVY, in her personal capacity as

representative of the Estate of Joshua D.C. No. 2:10-cv-00233-EFS

Levy,

Plaintiffs, MEMORANDUM*

DAVID BREIDENBACH,

Plaintiff - Appellant,

v.

CITY OF SPOKANE; SPOKANE

COUNTY; CHRIS KEHL; MICHAEL

MCCASLAND; YAMADA, Sgt.,

Defendants - Appellees.

SUSAN LEVY, in her personal capacity as No. 12-35154

representative of the Estate of Joshua

Levy; ESTATE OF JOSHUA LEVY, D.C. No. 2:10-cv-00233-EFS

deceased,

Plaintiffs - Appellants,

and

*

This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

DAVID BREIDENBACH,

Plaintiff,

v.

CITY OF SPOKANE; SPOKANE

COUNTY; CHRIS KEHL; MICHAEL

MCCASLAND; YAMADA, Sgt.,

Defendants - Appellees.

SUSAN LEVY, in her personal capacity as No. 12-35182

representative of the Estate of Joshua

Levy; ESTATE OF JOSHUA LEVY, D.C. No. 2:10-cv-00233-EFS

deceased,

Plaintiffs,

and

DAVID BREIDENBACH,

Plaintiff - Appellee,

v.

CITY OF SPOKANE; SPOKANE

COUNTY; CHRIS KEHL; MICHAEL

MCCASLAND; YAMADA, Sgt.,

Defendants - Appellants.

Appeal from the United States District Court

for the Eastern District of Washington

Edward F. Shea, District Judge, Presiding

Argued and Submitted July 11, 2013

Seattle, Washington

Before: M. SMITH and N.R. SMITH, Circuit Judges, and WALTER, Senior

District Judge.**

The Estate of Joshua Levy and David Breidenbach (collectively, plaintiffs)

appeal the district court’s order granting summary judgment on behalf of the City

of Spokane, the County of Spokane, and certain individual law enforcement

defendants. Plaintiffs allege that the defendants used constitutionally excessive

force against Levy—an individual known to have serious mental health

problems—resulting in Levy’s fatal jump from a bridge. Because the parties are

familiar with the factual and procedural history of this case, we repeat only those

facts necessary to resolve the issues raised on appeal. We affirm.

To overcome a qualified immunity defense, a plaintiff must establish both:

(1) that the defendants violated a statutory or constitutional right; and (2) that the

right was “clearly established” at the time of the challenged conduct. Pearson v.

Callahan, 555 U.S. 223, 232 (2009). In analyzing this issue, we may address

either prong first. See id. at 236. If analysis of one prong proves dispositive, we

need not analyze the other. See id. at 236, 241–43.

**

The Honorable Donald E. Walter, Senior District Judge for the U.S.

District Court for the Western District of Louisiana, sitting by designation.

3

“A Government official’s conduct violates clearly established law when, at

the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently

clear’ that every ‘reasonable official would have understood that what he is doing

violates that right.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Plaintiffs cite Deorle v.

Rutherford, 272 F.3d 1272 (9th Cir. 2001), for the proposition that the defendants

were on notice that it was unlawful to attempt to use a Taser to temporarily

incapacitate a fatigued and unresponsive mentally-ill individual who was

contemplating suicide, and to further “rush” that individual in order to detain him

and bring him to safety. See al-Kidd, 131 S. Ct. at 2084 (holding that courts must

not “define clearly established law at a high level of generality”). Plaintiffs

contend the defendants’ actions were particularly unreasonable because Levy was

not inside the bridge portico at the time the defendants acted. Deorle, however, is

inapposite, and plaintiffs cite no other case, let alone a “robust consensus of cases

of persuasive authority,” id. at 2084 (citation omitted), that clearly establishes the

illegality of the defendants’ conduct here. Because the defendants could have

reasonably believed that their conduct under these circumstances was lawful, they

are entitled to qualified immunity.

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Plaintiffs’ Monell claims also fail, because plaintiffs cannot show that any

municipal defendant ratified the individual defendants’ actions. See City of St.

Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (holding that a municipality can be

held liable for an isolated constitutional violation if a final policymaker ratified a

subordinate’s actions). Here, plaintiffs point to no evidence to support their

ratification theory. For instance, plaintiffs never identify the relevant “authorized

policymakers” for any defendant. See id. Nor do plaintiffs present evidence that

demonstrates that any authorized policymaker approved of the individual

defendants’ actions.

Finally, Breidenbach’s emotional distress claim fails because it is derivative

of plaintiffs’ rejected constitutional claims.1

AFFIRMED.

1

The claims raised in defendants’ cross-appeal are denied as moot.

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