Luchtel v. Hagemann

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KAREY R. LUCHTEL, 

Plaintiff-Appellant,

v.

OFFICER CLARK HAGEMANN, a

Seattle Police Officer, in his

individual and official capacity;

OFFICER THOMAS HANLEY, a Seattle

Police Officer, in his individual

and official capacity; SPD

OFFICERS J. DOE #1 AND J. DOE #2,

whose identity is presently

unknown, in their individual and

official capacities; GIL No. 09-35446

KERLIKOWSKE, Chief of Police, in

his individual and official  D.C. No.

2:07-cv-01448-RSM

capacity; JOHN AND JANE DOE #3-7,

OPINION

Supervisory Police Officers of the

City of Seattle, the identity and

number of whom are presently

unknown, in their individual and

official capacities; RICHARD AND

JANE 1-5 DOE, municipal

policymakers of the city of Seattle,

the identity and number of whom

are presently unknown, in their

individual and official capacities;

CITY OF SEATTLE, a Municipal

Corporation,

Defendants-Appellees.



16835

16836 LUCHTEL v. HAGEMANN

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, District Judge, Presiding

Submitted without argument December 11, 2009

Submission withdrawn February 24, 2010

Argued and Submitted

May 18, 2010—Seattle, Washington

Filed October 7, 2010

Before: Robert R. Beezer, Ronald M. Gould and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Gould;

Partial Concurrence and Partial Dissent by Judge Beezer

LUCHTEL v. HAGEMANN 16839

COUNSEL

John J. Kannin (argued), Kannin Law Firm P.S., Tukwila,

Washington, for the plaintiff-appellant.

Ted Buck (argued) and James R. Lynch, Stafford Frey Coo-

per, Seattle, Washington, for the defendants-appellees.

OPINION

GOULD, Circuit Judge:

Karey Luchtel, after using crack cocaine and fearing that

her husband was trying to kill her, ran into the street with her

young son. Witnesses who called 911 reported that she was

screaming for help and threatening to harm herself. She hid

under a car until her neighbors provided refuge in their house.

The police were summoned by Luchtel’s husband and other

neighbors who heard her screams. Inside the neighbors’

house, the officers confronted Luchtel, and she stated that

they were not actual police officers but assassins hired to kill

her. Luchtel grabbed her elderly neighbor to use for protec-

tion. After using their bodies and handcuffs to detain and

arrest Luchtel, the officers took her to a hospital for mental

evaluation and treatment of injuries.

16840 LUCHTEL v. HAGEMANN

Luchtel sued under 42 U.S.C. § 1983, contending that there

was a lack of probable cause to arrest her, and that excessive

force was used by the officers. She also sued under Washing-

ton state law for, among other things, false arrest, negligence,

and assault and battery. The district court granted summary

judgment for the defendants on all claims. We have jurisdic-

tion pursuant to 28 U.S.C. § 1291, and we affirm.

I

In late 2004 Luchtel began using and became addicted to

crack cocaine. In time, she became reclusive and showed

some paranoia. On May 18, 2005, Luchtel smoked crack

cocaine around 4:00 p.m. That evening, her husband offered

her a glass of wine, but she became convinced that, because

he was a toxicologist, he was trying to poison her. Luchtel ran

from the house with her young son, S.L., and she and S.L. hid

under a parked car. Luchtel screamed for help, yelling that

someone was trying to kill her.

Several neighbors called 911. One reported that a woman

was yelling in the street that someone was trying to kill her.

Another reported that the screaming woman was threatening

to kill herself. Still another said that the screaming woman

was “high on something.” While police were en route, Luch-

tel went to the house of her neighbors, the Walds.

Two police officers, Officer Clark Hagemann and Officer

Thomas Hanley, responded to the 911 calls. The officers

spoke to Luchtel’s husband, who said that his wife was run-

ning around the neighborhood out of control on drugs, and

that she had now gone to the Walds’ house. The officers went

next door to the Walds’ house, where the events occurred that

led to this lawsuit.

On all accounts, Luchtel became terrified at the officers’

arrival. Officer Hanley stated that Luchtel’s eyes were wide,

her breathing was rapid, her muscles were taught, and she

LUCHTEL v. HAGEMANN 16841

looked like she was “ready to spring.” Mrs. Wald said that as

soon as Luchtel saw the officers, “she just went, I would say,

ballistic.” Luchtel told Mrs. Wald, “Don’t let them come in.

They’re going to take—they’re going to kill me. This is not

the police. They’re going to kill me.” Mr. Wald took Luch-

tel’s son downstairs, fearing that “things were happening so

fast that maybe [S.L.] shouldn’t be part of it.”

Luchtel could not remember whether Mrs. Wald was sitting

or standing, but she testified that when the officers walked in,

she stood up and grabbed onto Mrs. Wald, seeking her protec-

tion. Mrs. Wald reported that the officers moved in “to grab”

Luchtel and Luchtel “put her arms around” Mrs. Wald. Mrs.

Wald recounted, “I think she was hoping that I was protecting

her, because she, she kind of lounged [sic] at me. And then

when the police came over to her, we both fell on the floor.”

Mrs. Wald did not remember whether the officers first lunged

for Luchtel or whether Luchtel first lunged toward Mrs. Wald.

Luchtel alleges that the officers moved in to grab her and she

responded by seeking the protection of Mrs. Wald. The offi-

cers allege that after S.L. left the room, Luchtel immediately

“shot up” from the corner, darted across the room, and

grabbed Mrs. Wald by the shoulders, apparently “to use her

as a human shield.” Mrs. Wald testified, “All I know it was

in a split second and both of us were down on the floor.” Put-

ting to the side immaterial differences in the testimony, what

is undisputed is that after the officers arrived, Luchtel grabbed

Mrs. Wald, apparently for protection, and they both ended up

on the floor.

While Luchtel was lying on the floor, the police sought to

restrain her. Luchtel admitted that she did “everything [she]

could to keep [the officers] from handcuffing [her]” because

she was afraid the officers were trying to kill her. The officers

said that she tried to strike, scratch, and bite them. The offi-

cers said that while trying to handcuff her, Luchtel “tried to

move her arms and shoulders with such force that it was diffi-

cult even to keep a grip on her.” Luchtel denies that she tried

16842 LUCHTEL v. HAGEMANN

to bite, scratch, or hit the officers. Mr. Wald testified that

Luchtel was indeed kicking, though not necessarily at the offi-

cers, and more generally that he was “amazed” at how much

Luchtel fought.

Luchtel was taken to the hospital. The doctors diagnosed

her with “[a]cute psychosis secondary to cocaine intoxica-

tion,” and her urinalysis tested positive for cocaine. The doc-

tors also diagnosed her with a dislocated shoulder and torn

shoulder ligaments, requiring surgery. The doctors noted

bruises, swelling, and abrasions on her forearms, abdomen,

hip, and lower extremities. Luchtel had surgery to fix her

shoulder, but she claims that she can no longer swim, hike,

play tennis, hold her son, or eat normally. Luchtel also claims

that her tooth was chipped during the arrest.

Luchtel sued Officers Hagemann and Hanley and two

unnamed police officers under 42 U.S.C. § 1983 for arresting

her without probable cause and using excessive force during

the arrest. She also sued the officers for false arrest, negli-

gence, and assault and battery under state law. She sued Chief

of Police Gil Kerlikowske, unnamed supervisory officers in

the Seattle Police Department, unnamed municipal policy-

makers for Seattle, and the City of Seattle under theories of

negligent hiring, training, and supervision. She appeals the

district court’s grant of summary judgment in favor of the

defendants on all these claims.

II

We review de novo a grant of summary judgment. Edwards

v. Wells Fargo & Co., 606 F.3d 555, 557 (9th Cir. 2010). We

must determine whether, viewing the evidence in the light

most favorable to Luchtel, the district court correctly applied

the relevant substantive law and whether there are any genu-

ine issues of material fact. Id.

LUCHTEL v. HAGEMANN 16843

III

We affirm the district court’s grant of summary judgment

in favor of the officers on Luchtel’s § 1983 claim that the

police lacked probable cause to arrest her.

[1] Probable cause exists when “under the totality of cir-

cumstances known to the arresting officers, a prudent person

would have concluded that there was a fair probability that

[the suspect] had committed a crime.” United States v. Smith,

790 F.2d 789, 792 (9th Cir. 1986); see also Maryland v.

Pringle, 540 U.S. 366, 371 (2003) (examining “the events

leading up to the arrest” and whether the “historical facts,

viewed from the standpoint of an objectively reasonable

police officer, amount to probable cause” (citation and quota-

tion marks omitted)). Under the totality of the circumstances,

a reasonable officer could believe that Luchtel had possessed

cocaine in violation of Washington law. See Wash. Rev. Code

§§ 69.50.4013, 69.50.206. Luchtel’s husband and the 911

callers told the police that Luchtel was high on drugs. Luchtel

said in her deposition that, given her comments to the police

officers, it would have been reasonable for them to believe

she was on drugs. Evidence of drug intoxication combined

with corroborating evidence can be sufficient to convict for

prior possession. See State v. Carter, 888 P.2d 1230, 1233

(Wash. Ct. App. 1995). There was probable cause to arrest

Luchtel for cocaine possession here.

[2] The police officers also had reasonable cause to take

Luchtel to the hospital for mental evaluation under Washing-

ton’s mental health evaluation statute. See Wash. Rev. Code

§ 71.05.150(4) (2006) (current version at Wash. Rev. Code

§ 71.05.153(2)). That statute gives police officers the author-

ity to take a person to a hospital for mental evaluation upon

“reasonable cause to believe that such person is suffering

from a mental disorder and presents an imminent likelihood

of serious harm or is in imminent danger because of being

gravely disabled.” Id. The officers had reasonable cause under

16844 LUCHTEL v. HAGEMANN

the statute on the basis of Luchtel’s paranoid comments to the

officers and the 911 reports that Luchtel had been hiding

under a car with her son, screaming that someone was trying

to kill her and that she would kill herself. See State v. Mason,

782 P.2d 572, 573-74 (Wash. Ct. App. 1989) (noting that wit-

ness’s demeanor, reported threats of suicide, and known pre-

vious suicide attempts justified the officer’s determination

that custodial detention for mental-health evaluation was

appropriate). The district court did not err in granting sum-

mary judgment on Luchtel’s claims under § 1983 that the offi-

cers lacked probable cause to arrest her.1 They were entitled

to subdue her, to arrest her, and to get her to a hospital for

assessment.

Alternatively, even if we were to conclude to the contrary

that the officers did not have probable cause to arrest Luchtel

for possession of cocaine, it is clear that reasonable officers

could have so believed from the undisputed facts, and so they

would be entitled to qualified immunity on this ground. Pear-

son v. Callahan, 129 S. Ct. 808, 818 (2009); Saucier v. Katz,

533 U.S. 194, 202 (2001), overruled in part on other grounds

by Pearson, 129 S. Ct. at 818-22.

IV

[3] Even though there was probable cause to arrest Luchtel

for cocaine possession, police officers must use a reasonable

level of force to effectuate an arrest, and they cannot use

excessive force. See Palmer v. Sanderson, 9 F.3d 1433, 1436

(9th Cir. 1993). Whether an individual has been subjected to

excessive force under the Fourth Amendment requires consid-

eration of the reasonableness standard set forth in Graham v.

Connor, 490 U.S. 386, 395 (1989). To determine whether

officers used excessive force during an arrest, courts balance

1

In light of this conclusion we need not address the officers’ arguments

that they also had probable cause to arrest for assault and for obstruction

of justice.

LUCHTEL v. HAGEMANN 16845

“the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the countervailing gov-

ernmental interests at stake.” Id. at 396 (quotation marks

omitted); see also Miller v. Clark County, 340 F.3d 959, 964

(9th Cir. 2003). We examine the “facts and circumstances of

each particular case, including the severity of the crime at

issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.” Gra-

ham, 490 U.S. at 396; see also Miller, 340 F.3d at 964. We

also consider, under the totality of the circumstances, the

“quantum of force” used to arrest the plaintiff, Davis v. City

of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007), the avail-

ability of alternative methods of capturing or detaining the

suspect, id. at 1054, and the plaintiff’s mental and emotional

state, see Deorle v. Rutherford, 272 F.3d 1272, 1282 (9th Cir.

2001). Although on summary judgment we view the evidence

in the light most favorable to Luchtel, “[t]he ‘reasonableness’

of a particular use of force must be judged from the perspec-

tive of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight.” Graham, 490 U.S. at 396.

[4] We conclude that under the totality of circumstances,

and even viewing the evidence in the light most favorable to

Luchtel, the officers’ use of force in arresting and detaining

her was reasonable. There is no genuine dispute from the evi-

dence that Luchtel posed a threat to herself, her neighbors,

and the officers. See Smith v. City of Hemet, 394 F.3d 689,

702 (9th Cir. 2005) (en banc) (explaining that the “most

important single element” from Graham is “whether the sus-

pect poses an immediate threat to the safety of the officers or

others”). Luchtel was under the influence of crack cocaine, as

demonstrated by the hospital’s medical report. Luchtel’s hid-

ing with her child under a car in the absence of an actual

physical threat, her husband’s notice to the officers that Luch-

tel was running around the neighborhood out of control on

drugs, her allegedly threatened suicide, and her admission that

when the officers arrived in the Walds’ home she stood up

16846 LUCHTEL v. HAGEMANN

and declared that the officers were not actually the police but

assassins trying to kill her all show that the police were pre-

sented with an irrational and unpredictable person, high on

cocaine and to a degree delusional. The undisputed evidence

shows that after Luchtel attempted to use Mrs. Wald for pro-

tection, Mrs. Wald was taken to the floor with enough force

to tear open her blouse, rip her brassiere, and bruise her. Mrs.

Wald testified that when the officers arrived, Luchtel was

“ballistic,” telling the Walds not to let the police come into

the house because they planned to kill her. Mr. Wald felt that

it was necessary to remove Luchtel’s son from the room when

the officers arrived. It was reasonable and necessary for an

officer confronted with these circumstances to use force to

subdue Luchtel and to prevent injury to Luchtel, the Walds,

and the officers themselves. In these circumstances, the domi-

nant motive and essential duty for police was to secure safety

for all. It was reasonable to subdue Luchtel.

[5] Moreover, the evidence is undisputed that Luchtel was

actively resisting arrest. See United States v. Willfong, 274

F.3d 1297, 1301 (9th Cir. 2001) (“[A] person does not have

the right to resist arrest even if the charges are false or the

arrest unlawful.”). Luchtel admitted to resisting the officers’

attempts to detain her. She testified, “I thought they were

going to . . . handcuff me, and I didn’t want them to handcuff

me . . . . So I was resisting them handcuffing me . . . .” Luch-

tel further testified, “I just remembered, you know, don’t let

them handcuff me, don’t let them handcuff me, so I was try-

ing to do everything I could to keep them from handcuffing

me.” (Emphasis added.) Mr. Wald confirmed Luchtel’s resis-

tance: “She was struggling with them when I came in, and to

the best of my recollection . . . she was still struggling with

them right to the end . . . .” Mr. Wald further testified that he

was “amazed” that Luchtel’s resistance was so “forceful.” Mr.

Wald testified that although he knew Luchtel was athletic, “I

was still kind of amazed at the resistance that she put up. She

wasn’t going to be taken lightly.” Luchtel’s and Mr. Wald’s

testimony is consistent with the officers’ account. Mr. Wald

LUCHTEL v. HAGEMANN 16847

testified that, even after the officers had placed Luchtel in

handcuffs, Luchtel continued to resist and was kicking to get

free. Mr. Wald testified, “[S]he was doing everything in her

power not to be subdued. And she was—she was acting pretty

powerful, because I noticed the police were having trouble

subduing her. I was pretty amazed. I really was. I didn’t think

she had it in her.” Because Luchtel acknowledged—and the

officers and a neutral third-party witness agreed—that Luchtel

was actively resisting arrest, there is no genuine dispute on

this issue, and Luchtel’s aggressive and resistant behavior

weighs in favor of a finding that the officers’ use of force was

justified.

[6] Although we have held in some circumstances that

obstruction of justice, see Davis, 478 F.3d at 1055, use of

cocaine, see Tatum v. City & County of San Francisco, 441

F.3d 1090, 1096 (9th Cir. 2006), and certain domestic-

violence disputes, Smith, 394 F.3d at 702, are not severe

crimes, we conclude that the circumstances were sufficiently

severe to account for the amount of force the officers used.

Although the officers initially sought to detain Luchtel for

mental evaluation, the situation quickly became much more

serious. Upon entry, Luchtel became increasingly erratic,

expressing her belief that the police officers were assassins

hired to kill her. Whatever her motivation, Luchtel lunged at

her sixty-seven-year-old neighbor, pulling her to the floor in

an attempt to protect herself from her perceived assailants.

The force was so great that Mrs. Wald’s blouse and brassiere

were ripped and she was bruised. The incident also began as

a domestic disturbance between Luchtel and her husband. We

have previously noted that “[w]hen officers respond to a

domestic abuse call, they understand that violence may be

lurking and explode with little warning. Indeed, more officers

are killed or injured on domestic violence calls than on any

other type of call.” United States v. Martinez, 406 F.3d 1160,

1164 (9th Cir. 2005) (citation and quotation marks omitted);

see also United States v. Black, 482 F.3d 1035, 1040 (9th Cir.

2007) (“Our circuit has recognized that the exigencies of

16848 LUCHTEL v. HAGEMANN

domestic abuse cases present dangers that . . . may override

considerations of privacy.” (quotation marks omitted)). A

caller reported to 911 that Luchtel, who was with her son, was

threatening to kill herself. Even accepting Luchtel’s testimony

and giving her all reasonable inferences, Luchtel’s conduct

called for the officers to restrain her and was sufficient for the

officers to use the level of force employed to detain and arrest

her.

Police officers need not use the least intrusive means avail-

able to them, see Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.

1994), yet these officers applied the least amount of force

necessary to subdue Luchtel by pinning her to the ground and

handcuffing her. They did not deploy a taser despite Luchtel’s

violent, aggressive, and unpredictable behavior. They did not

use batons or other weapons, such as pepper spray. There is

no allegation that the officers punched or kicked Luchtel or

applied knee strikes. Luchtel does not point to any record evi-

dence that the officers engaged in any unnecessary manipula-

tion of her arms. There is no claim or testimony that they

wrenched her arms up or gratuitously intensified pain in the

handcuffing process. Luchtel contends that she was “held to

the floor for at least ten minutes while handcuffed with a bro-

ken arm and dislocated shoulder.” Given Luchtel’s hostile and

aggressive behavior, it was reasonable to hold her in that posi-

tion until she could be removed safely from her neighbor’s

home on a stretcher with restraints. Even accepting that it was

the officers’ conduct that caused the break in Luchtel’s arm,

it can’t be disputed that Luchtel’s active resistance was a con-

tributing cause to whatever injuries she sustained. Although

Luchtel’s physical injuries and any limitations from them are

distressing, it’s not correct to put the blame at the officers’

door absent evidence that excessive force was used. Given the

totality of circumstances, including the context of the arrest,

we conclude that there is no genuine issue of fact that a rea-

sonable level of force was used. See Jackson v. City of Brem-

erton, 268 F.3d 646, 650, 653 (9th Cir. 2001) (affirming

excessive-force summary judgment in favor of police officers

LUCHTEL v. HAGEMANN 16849

even though the plaintiff’s finger was fractured and perma-

nently damaged). There is no evidence that would permit a

fact-finder to conclude that the officers applied an unreason-

able amount of force under the circumstances. See Graham,

490 U.S. at 396 (“Not every push or shove, even if it may

later seem unnecessary in the peace of a judge’s chambers,

violates the Fourth Amendment.” (citation and quotation

marks omitted)); see also Saucier, 533 U.S. at 204-05 (“If an

officer reasonably, but mistakenly, believed that a suspect was

likely to fight back, for instance, the officer would be justified

in using more force than in fact was needed.”). Judges must

make “allowance for the fact 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.” Graham,

490 U.S. at 397.

Luchtel emphasizes the size disparity between her physical

stature and that of the officers as evidence to show a dispute

of a genuine issue of material fact over excessive force,2 but

the difference in size alone is insufficient to change the result.

People under the influence of mood-altering substances often

act in an unpredictable, irrational manner—as did Luchtel.

They can exhibit superhuman strength and, despite their phys-

ical size, can inflict serious injuries while resisting arrest.

Police training teaches officers what experience has con-

firmed for decades:

Restraining the emotionally disturbed can sometimes

be quite a task as they often have increased strength

as a result of an obsessive drive. If they show signs

of violence they should always be handcuffed, hands

behind their back. If they return to normal and

appear relaxed, do not take off the handcuffs, even

if they assure you that they are all right.

2

Officer Hagemann was 6’4”and 235 pounds and Officer Hanley was

6’4” and 185 pounds. Luchtel was 5’3” and weighed 120 pounds.

16850 LUCHTEL v. HAGEMANN

George T. Payton & Michel Amaral, Patrol Operations and

Enforcement Tactics 344 (11th ed. 2004). By Luchtel’s stan-

dard, no court may grant summary judgment on excessive

force where the police officers are physically much larger

than the suspect. We do not accept that standard. Similarly, if

it was objectively unreasonable for police officers to intercede

here by using a degree of force necessary to subdue Luchtel,

then nothing short of retreating and leaving Luchtel’s neigh-

bors to fend for themselves would satisfy the Fourth Amend-

ment. This is likewise unacceptable, particularly in a case

where Luchtel’s own conduct invited the use of force and

made it more difficult for officers to take her into custody.

We examine the facts and circumstances of each particular

case and we “balance the nature and quality of the intrusion

on the individual’s Fourth Amendment interests against the

countervailing government interests at stake.” Miller, 340

F.3d at 964 (quotation marks omitted). The importance of the

government interest in detaining and arresting Luchtel was

significant and compelling, see Wash. Rev. Code

§ 71.05.150(4) (2006) (granting police officers authority to

detain persons with mental disorders that present an imminent

likelihood of serious harm), and the gravity of the intrusion—

low-level use of hands to address Luchtel’s drug-induced

paranoia—was minimal. We conclude that the facts and cir-

cumstances of this case would not permit a finding that the

officers used excessive force in arresting and detaining Luc-

thel. See Graham, 490 U.S. at 396 (“[T]he right to make an

arrest . . . necessarily carries with it the right to use some

degree of physical coercion or threat thereof to effect it.”).

Alternatively, even if some degree of force used in subdu-

ing Luchtel was excessive, a reasonable officer could have

thought the force used was needed, entitling the officers to

qualified immunity. Pearson, 129 S. Ct. at 818; Saucier, 533

U.S. at 202. Luchtel has not shown that the use of the offi-

cers’ bodies and handcuffs in the manner deployed violated a

clearly established constitutional right. See Pearson, 129 S.

LUCHTEL v. HAGEMANN 16851

Ct. at 815. A reasonable police officer could properly believe

that the use of this level of force would not violate a clearly

established constitutional right. See Jackson, 268 F.3d at 653

n.5; see also Malley v. Briggs, 475 U.S. 335, 341 (1986) (stat-

ing that qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law).3

3

Excessive force cases are fact-intensive, and it’s not surprising that rea-

sonable judges might differ in their evaluative judgment. The crux of my

disagreement with the dissent is this:

1) Because Luchtel does not dispute the key facts about her

behavior—that she was under the influence of cocaine and acting

paranoid before the officers arrived on the scene at the Wald resi-

dence and that she asserted the officers were imposters there to

kill her when they arrived—there is probable cause supporting

the officers’ decision to restrain and detain her. In addition, the

evidence of her prior cocaine use and cocaine intoxication gave

probable cause to arrest her for cocaine possession.

2) Luchtel had no privilege to resist this lawful arrest. That she

alleges injury resulting from the attempts of the officers to hand-

cuff her while she resisted arrest and that the officers were large

while she was small, individually and together in the totality of

the circumstances, do not show that the force used was excessive.

Witnesses, including Luchtel herself, agreed that she resisted the

officers’ attempt to restrain her; there were differences only as to

how vigorously she resisted and as to how much of a problem she

posed to the officers. There simply is no genuine issue of material

fact as to whether she resisted the officers’ attempts to restrain

her.

Applying the considerations of reasonableness set forth by the Supreme

Court in Graham, and viewing the record in the light most favorable to

Luchtel, we cannot say that the force used was excessive. A reasonable

police officer in the position of the defendants had to act to restrain Luch-

tel, to protect her from herself and to protect themselves and others. The

degree of force used was not excessive in light of her fighting the restraint,

and the mere fact of consequent injury is not enough to establish excessive

force.

16852 LUCHTEL v. HAGEMANN

V

[7] Luchtel also asserted state-law tort claims for false

arrest, for negligence, and for assault and battery. We affirm

summary judgment on the false-arrest claim because the

police had probable cause to arrest Luchtel. Probable cause is

an absolute defense to a false-arrest claim. McBride v. Walla

Walla County, 975 P.2d 1029, 1032 (Wash. Ct. App. 1999).

We also affirm summary judgment on the negligence claim.

Officers cannot be liable for detaining a person for a mental-

health evaluation under Washington law if the officers acted

with good faith and without gross negligence. Wash. Rev.

Code § 71.05.120. Because the officers had reasonable cause

to detain and reasonably detained Luchtel, they cannot be lia-

ble for negligence. In addition, we affirm summary judgment

on the assault-and-battery claim. Under Washington law, a

police officer has qualified immunity if the officer “(1) carries

out a statutory duty, (2) according to procedures dictated to

him by statute and superiors, and (3) acts reasonably.” Staats

v. Brown, 991 P.2d 615, 627 (Wash. 2000) (quoting Guffey v.

State, 690 P.2d 1163, 1167 (Wash. 1984)). We have con-

cluded that the officers were properly carrying out a statutory

duty according to the procedures dictated by Washington law

and police training, and we have concluded that the officers

acted reasonably in detaining and arresting Luchtel. Accord-

ingly, the officers were entitled to qualified immunity on the

assault-and-battery claim. See McKinney v. City of Tukwila,

13 P.3d 631, 641 (Wash. Ct. App. 2000).

VI

Finally, we affirm summary judgment dismissing the two

unnamed police officers, Chief of Police Gil Kerlikowske, the

unnamed supervisory officers in the Seattle Police Depart-

ment, the unnamed municipal policymakers for Seattle, and

the City of Seattle because Luchtel made no arguments in her

opening brief for reversal with respect to these defendants.

“We will not ordinarily consider matters on appeal that are

LUCHTEL v. HAGEMANN 16853

not specifically and distinctly argued in appellant’s opening

brief.” Dream Games of Ariz., Inc. v. PC Onsite, 561 F.3d

983, 994-95 (9th Cir. 2009) (quotation marks omitted).

VII

We affirm the district court’s grant of summary judgment

rejecting Luchtel’s § 1983 claim that the police lacked proba-

ble cause to arrest her and that the police used excessive force

in detaining and arresting her. Alternatively, if there was error

in either of these respects, and if cause was insufficient or if

force was excessive, there was also reasonable belief that

arrest was warranted and that the amount of force used was

necessary, and hence the officers are entitled to qualified

immunity. We also affirm summary judgment on Luchtel’s

state law false-arrest, negligence, and assault-and-battery

claims. Finally, we affirm summary judgment on Luchtel’s

remaining claims because these were not raised in Luchtel’s

opening brief.

AFFIRMED.

BEEZER, Circuit Judge, concurring in part and dissenting in

part:

In our judicial system, the jury is tasked with determining

the credibility of witnesses and divining from the various tes-

timonies what really happened. Because summary judgment

deprives a party of the opportunity to have the jury examine

the facts, we must view the evidence in the light most favor-

able to the party who is not seeking summary judgment, here,

the plaintiff, Karey Luchtel. Rather than view the evidence in

Ms. Luchtel’s favor, the court’s opinion ignores key testi-

mony from a neutral witness that supports Ms. Luchtel’s case

and relies instead on the Seattle Police Department officers’

version of events. This case should have gone to the jury on

16854 LUCHTEL v. HAGEMANN

the excessive-force and assault-and-battery claims, and I dis-

sent.1

I

If we view the facts in the light most favorable to Ms.

Luchtel, the scene unfolds quite differently than the opinion

of the court relates. When the Seattle Police Department offi-

cers entered the Walds’ house on the night in question, Ms.

Wald was sitting on the sofa with her arm around Ms. Luch-

tel, comforting her. After the officers announced themselves

to Mr. Wald at the door, they “barg[ed]” into the living room

where the women were sitting, did not say anything to any-

one, and went straight for Ms. Luchtel. Ms. Luchtel, who was

suffering from paranoia, became extremely frightened and

said that the police weren’t the real police. Mr. and Ms. Wald,

however, were unnerved and apprehensive too. Mrs. Wald

testified that she was “very shocked” when the police came in

because “neither my husband nor I called the police” and

“they just barged in.” Mr. Wald testified that he was “alarmed

by [the officers’] very presence there” and sought to get Ms.

Luchtel’s son out of the room in case something happened.

He took the boy downstairs and out the back door.

Ms. Wald also retreated from the officers. She took her arm

off of Ms. Luchtel, and walked over to the organ bench. As

Ms. Wald recounted, “I thought if the police were going to go

over to her, I wasn’t going to get involved with the police.”

Ms. Luchtel followed Ms. Wald, whom Ms. Luchtel viewed

as providing comfort and safety. She stood behind Ms. Wald.

The police lunged toward the women, and Ms. Luchtel

grabbed onto Ms. Wald, and both women fell on the floor.

During the fall, Ms. Wald’s blouse buttons came undone. As

Ms. Wald was “put[ting] [her]self together,” Ms. Luchtel was

1

I concur in Parts III and VI of the court’s opinion. I also would affirm

the grant of summary judgment on Ms. Luchtel’s state-law negligence and

false-arrest claims.

LUCHTEL v. HAGEMANN 16855

still lying on the floor. According to Ms. Wald, an officer then

“tackled” Ms. Luchtel, and the other officer quickly joined

him. Ms. Luchtel, still terrified, said, “Don’t let them take me.

They’re not the police.” In response, the officers taunted her,

saying “you’ll know that we’re the real police.” “[T]hey were

not very kind to her, I must admit,” Ms. Wald recalled.

Ms. Wald testified that after the officers tackled Ms. Luch-

tel, they were immediately able to control and handcuff her:

“She wasn’t able to fight, the poor thing. She was on the

floor. She wasn’t—they had her arms behind her, and she was

literally on her front. And they couldn’t—they had her legs

shackled and her arms shackled so she couldn’t move.” The

officers reported that they used their body weight to hold Ms.

Luchtel down even after she was in handcuffs. At some point

later, the ambulance arrived, and Ms. Luchtel was transported

to the hospital. At the hospital, the doctors observed bruises,

swelling, and abrasions on Ms. Luchtel’s forearms, abdomen,

hip, and lower extremities. Worse, she had suffered a dislo-

cated shoulder and torn shoulder ligaments. The dislocation

had caused a Hill-Sachs fracture—a bone fragment had

chipped off in the process of the dislocation and was lodged

in the rotator cuff between her socket and arm—and surgery

would be necessary. She had surgery to fix her shoulder, but

she can no longer swim, hike, play tennis, or even eat nor-

mally.

II

Considering the facts favorable to Ms. Luchtel, I cannot

agree with the analysis of the Graham v. Connor, 490 U.S.

386 (1989), factors set out in the court’s opinion.

First, the “most important single element”—“whether the

suspect poses an immediate threat to the safety of the officers

or others”—weighs in Ms. Luchtel’s favor. Smith v. City of

Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc) (emphasis

added) (quoting Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir.

16856 LUCHTEL v. HAGEMANN

1994)). In concluding that this factor weighs against Ms.

Luchtel, the opinion of the court relies on events that took

place before the officers used force against her. The opinion

argues that the fact that Ms. Luchtel hid under the car and

yelled that someone was trying to kill her shows that she

posed a danger to the officers, the Walds, or her son. How-

ever, this factor must be analyzed at the time the officers used

the alleged excessive force.

At the time force was used Ms. Luchtel did not pose an

immediate danger to anyone. Mr. Wald and Ms. Luchtel’s son

had already left the room so she posed no danger to them. Ms.

Luchtel also did not pose a threat to the Seattle Police Depart-

ment officers—she was an unarmed, 5’3”, 120 pound woman,

face-down on the floor. The officers were both 6’4”; one

weighed 185 pounds and the other 235 pounds. And a reason-

able jury could conclude that the officers would have known

that Ms. Luchtel did not pose a danger to Ms. Wald. When the

officers first entered the Walds’ home, they observed Ms.

Wald sitting with her arm around Ms. Luchtel, comforting

her. Ms. Wald testified that she was not afraid of Ms. Luchtel

at any point and that Ms. Luchtel had not done anything to try

and hurt Ms. Wald or the officers.

A reasonable jury could believe that the officers reasonably

thought that Ms. Luchtel assaulted Ms. Wald when the two

women fell down—as the court’s opinion argues—but a rea-

sonable jury could also believe that reasonable officers would

have known that Ms. Luchtel was just scared and seeking pro-

tection from the motherly figure who had just been comfort-

ing her, Ms. Wald. The jury could believe that when the

officers lunged for Ms. Luchtel, they made the women fall

from their precarious position on the organ bench.

The point is not whether Ms. Luchtel posed a danger to her-

self or others in the long run without psychiatric help. I agree

that the officers had reasonable cause to take Ms. Luchtel for

psychiatric counseling and that they could use reasonable

LUCHTEL v. HAGEMANN 16857

force to do so. But I think a reasonable jury could find that

Ms. Luchtel posed no immediate danger to the officers, her-

self, or anyone else at the time the officers “tackled” her and

dislocated her shoulder.

Second, Ms. Luchtel’s crimes were not severe. The officers

had probable cause to believe that she had possessed cocaine.

They also had reasonable cause to believe that she was para-

noid and mentally disturbed and needed to be taken in for

mental evaluation. Ms. Luchtel also admits that she resisted

arrest. But cocaine use, mental disability, and obstruction of

justice are not severe crimes. See Davis v. City of Las Vegas,

478 F.3d 1048, 1055 (9th Cir. 2007) (holding obstruction of

justice not severe crime); Tatum v. City of S.F., 441 F.3d

1090, 1096 (9th Cir. 2006) (holding cocaine use not severe

crime).

And although the court’s opinion takes great pains to point

out that domestic violence situations may be especially haz-

ardous to police officers, this was not a domestic violence sit-

uation. The actions did arise out of an argument between

spouses, but by the time the officers entered the Walds’

house, the officers knew that Ms. Luchtel had committed no

violent acts, and Mr. and Ms. Luchtel were in separate houses.2

Not every situation that takes place in a house or in the con-

text of a family—and thus is “domestic”—poses the same

level of threat to officers or others.

Third, there is a genuine dispute of material fact about how

much Ms. Luchtel was actually resisting—or able to resist.

2

Even domestic violence may not always be a severe crime for the pur-

pose of the Graham analysis. See Smith v. City of Hemet, 394 F.3d 689,

701 (9th Cir. 2005) (holding that the severity of the crime provided little

basis for the officers use of force where the victim-wife called 911 to

report that her husband “was hitting her and/or was physical with her”

because the plaintiff-husband was separate from his wife and had no

access to weapons).

16858 LUCHTEL v. HAGEMANN

Ms. Wald stated in her deposition that she did not remember

Ms. Luchtel struggling with the officers at all:

Q: Was she doing anything to try and hurt the offi-

cers that you could tell?

A: I don’t think so. Not that I could see. . . . She

went [down] with me on the floor, and when I got

up, they went to her and kept her down on the floor.

She was lying on the floor all the time.

....

Q: Did it look to you like they had any problems tak-

ing control of Karey?

A: I didn’t think they had any trouble. I didn’t think

they had any problems with them, no.

Ms. Luchtel similarly testified that the struggle only lasted “a

couple seconds.” The court’s opinion places a lot of stock in

Mr. Wald’s testimony that he was “amazed” how much she

struggled, but he was out of the room when the women fell

on the floor and when the officers allegedly injured Ms. Luch-

tel. When he came back, Ms. Luchtel was already in hand-

cuffs.

Fourth, the court’s opinion fails to analyze the three Gra-

ham factors in relation to the amount of force that the officers

used. See Chew, 27 F.3d at 1441. “The three factors articu-

lated in Graham . . . are not to be considered in a vacuum but

only in relation to the amount of force used to effect a particu-

lar seizure . . . .” Id. Even accounting for the fact that Ms.

Luchtel resisted arrest to some extent, there is still a genuine

issue of material fact as to whether the officers used excessive

force: “[I]f the extent of the injury . . . is serious enough, a

jury could conclude that [the officer] used force in excess of

what was reasonable, even if [the plaintiff] had been resisting

LUCHTEL v. HAGEMANN 16859

at the time.” LaLonde v. County of Riverside, 204 F.3d 947,

959 (9th Cir. 2000) (emphasis added). Moreover, even if the

officers did not use any more force than was needed to arrest

Ms. Luchtel—a fact that is certainly in dispute—the excessive

force inquiry is not over. The relevant inquiry is not whether

the force the officers used “was no greater than that required

to overcome [Ms. Luchtel’s] resistance. . . . [I]t is whether the

force used was reasonable in light of all the relevant circum-

stances.” Hammer v. Gross, 932 F.2d 842, 846 (9th Cir. 1991)

(en banc). A reasonable jury could conclude that although Ms.

Luchtel resisted arrest, the Seattle Police Department officers

used excessive force by dislocating her shoulder, causing a

Hill-Sachs fracture, and causing significant bruises, swelling,

and abrasions on most of her body. Ms. Wald testified in her

deposition that she was “not surprised if [Ms. Luchtel] did

have an arm injury the way they, you know, put her arm

around like this. They put her arms right around her back.”

She emphasized: “These are big guys. And Karey is about the

same size I am. And like I say to my kids, ‘Hey just be careful

there, you buddies. You don’t know what you’re doing

here.’ ”

Although it is true that the officers did not use tasers,

batons, or other weapons to subdue Ms. Luchtel, that is not to

say that the use of brute force and advantage in weight and

size cannot be excessive. To say that would give officers a

free pass as long as they just used their hands. The officers

could always point to other weapons “they could have used.”

I do not mean to suggest that “no court may grant summary

judgment on excessive force where the police officers are

physically much larger than the suspect,” Rather, I just think

in light of the short time that Ms. Luchtel resisted, her minor

crimes, the vast difference in size and weight, and Ms. Wald’s

corroborating testimony, that a reasonable jury could con-

clude that the officers used excessive force. In light of these

facts, a reasonable jury could find that the officers used exces-

sive force when they pulled Ms. Luchtel’s arms around her

back, when they used their body weight to keep her down

16860 LUCHTEL v. HAGEMANN

even after she had been handcuffed, or when they left her

“handcuffed [on the floor] so tight that it left scars.”

Finally, I believe the court’s opinion errs by failing to

account for the fact that Ms. Luchtel was mentally disturbed.

Our precedent holds that “a detainee’s mental illness must be

reflected in any assessment of the government’s interest in the

use of force.” Drummond ex rel. Drummond v. City of Ana-

heim, 343 F.3d 1052, 1058 (9th Cir. 2003) (emphasis added).

Indeed, we have specifically stated:

The problems posed by, and thus the tactics to be

employed against, an unarmed, emotionally dis-

traught individual who is creating a disturbance or

resisting arrest are ordinarily different from those

involved in law enforcement efforts to subdue an

armed and dangerous criminal who has recently

committed a serious offense. In the former instance,

increasing the use of force may, in some circum-

stances at least, exacerbate the situation; in the latter,

a heightened use of less-than-lethal force will usu-

ally be helpful in bringing a dangerous situation to

a swift end. In the case of mentally unbalanced per-

sons, the use of officers and others trained in the art

of counseling is ordinarily advisable, where feasible,

and may provide the best means of ending a crisis.

. . . [W]e emphasize that where it is or should be

apparent to the officers that the individual involved

is emotionally disturbed, that is a factor that must be

considered in determining, under Graham, the rea-

sonableness of the force employed.

Id. (emphases added) (internal citation omitted). Here, it was

apparent that Ms. Luchtel was “mentally unbalanced” or

“emotionally disturbed” in light of her actions and comments

that the officers were not the “real police.” Indeed, in his dec-

laration about the incident, Officer Hanley stated that when he

saw Ms. Luchtel, he “concluded” that she had a “mental dis-

LUCHTEL v. HAGEMANN 16861

ability.” A reasonable jury could conclude that the officers’

actions of “just march[ing] in” and “grab[bing]” Ms. Luchtel

without identifying themselves or saying anything to Ms.

Luchtel—when the officers were aware that she was mentally

disturbed—unreasonably exacerbated the situation. The

court’s opinion wholly fails to include this mandatory mental-

disability factor in its analysis when it concludes that no rea-

sonable juror could find that the police used excessive force.

III

For the reasons I have discussed under the excessive-force

analysis, the officers are also not entitled to qualified immunity.3

It is true that qualified immunity is “an immunity from suit

rather than a mere defense to liability” such that immunity

questions should be resolved “at the earliest possible stage in

litigation.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009)

(quotation marks omitted). But it is also true that excessive-

3

Similarly, Ms. Luchtel’s state law assault and battery claims should go

to the jury. In Washington, claims that the police used excessive force dur-

ing arrest are brought as assault and battery claims, see Boyles v. City of

Kennewick, 813 P.2d 178, 179 (Wash. Ct. App. 1991), and qualified

immunity is not “available for claims of assault and battery arising out of

the use of excessive force to effectuate an arrest,” Staats v. Brown, 991

P.2d 615, 627-28 (Wash. 2000) (en banc). As I have discussed, there are

genuine issues of material fact as to whether the officers used excessive

force so qualified immunity is inappropriate under Washington law. Also,

the officers are not immune under Revised Code of Washington section

71.05.120, which provides that “no[ ] peace officer . . . shall be civilly or

criminally liable for performing duties [relating to the decision to admit

a person for mental] evaluation and treatment: PROVIDED, That such

duties were performed in good faith and without gross negligence.” Ms.

Luchtel has presented sufficient evidence to present a triable question of

gross negligence. And in Estate of Lee v. City of Spokane, the Washington

Court of Appeals stated that “we cannot find any difference between the

question of good faith and the question of federal immunity which turns

on whether officers could have believed their conduct to be ‘lawful, in

light of clearly established law.’ ” 2 P.3d 979, 991 (Wash. Ct. App. 2000)

(discussing a similar immunity statute). Thus, Ms. Luchtel’s assault-and-

battery claim survives state law qualified immunity.

16862 LUCHTEL v. HAGEMANN

force cases “almost always turn on a jury’s credibility deter-

minations” and therefore “summary judgment . . . in excessive

force cases should be granted sparingly” even with respect to

the issue of qualified immunity. Smith, 394 F.3d at 701, 704

n.7. These opposing imperatives make the issue of summary

judgment on § 1983 claims tricky indeed. But the balance

here tilts in favor of trial.

The right to be free from excessive force in handcuffing is

clearly established in our precedent. See, e.g., Meredith v.

Erath, 342 F.3d 1057, 1061 (9th Cir. 2003) (rejecting quali-

fied immunity because it was “clearly established” that the

amount of force used in handcuffing the plaintiff was exces-

sive). This is true even when the plaintiff actively resists

handcuffing. See LaLonde, 204 F.3d at 952, 960 (rejecting

qualified immunity). As for whether the officers could reason-

ably have believed that the force they used was reasonable,

here, as in many excessive-force cases, the “issue of tight

handcuffing is usually fact-specific and is likely to turn on the

credibility of the witnesses.” Id.; see Palmer v. Sanderson, 9

F.3d 1433, 1436 (9th Cir. 1993) (rejecting qualified immunity

where the officer handcuffed the plaintiff so tightly that he

suffered pain and bruises).

Qualified immunity is simply not available here where we

have a case directly on point demonstrating that it is clearly

established that the police conduct was excessive. In Hansen

v. Black, 885 F.2d 642, 645 (9th Cir. 1989), we unanimously

reversed the grant of summary judgment on the excessive

force claim where the plaintiff claimed that her “handcuffs

were put on in an abusive manner” and “she had bruises on

her wrist and under her upper arm, and she complained of

pain in her little finger and upper arm.”4 We denied summary

4

The court’s opinion cites to Jackson v. City of Bremerton, 268 F.3d

646 (9th Cir. 2001), arguing that the officers’ force was reasonable

because summary judgment was granted in Jackson in favor of the officers

“even though the plaintiff’s finger was fractured and permanently dam-

LUCHTEL v. HAGEMANN 16863

judgment there even though the officers believed the plaintiff

was committing the serious offense of assisting a robbery sus-

pect and attempting to destroy evidence. See id. at 643. Under

Hansen, qualified immunity is not appropriate. Luchtel’s

crimes were less serious, and her injuries were much more

severe—a dislocated shoulder, torn shoulder ligaments, a

shoulder bone fracture in addition to bruises all over her body.

It is clearly established in the Ninth Circuit that causing frac-

tures and dislocating shoulders while handcuffing a suspect is

excessive force.5

IV

Although I concur in the remainder of the court’s opinion,

I must dissent with respect to the excessive-force and assault-

and-battery claims. On these claims, the court’s opinion

weighs the facts and testimony in this case much as jurors

would in the jury room. It concludes that no reasonable juror

could conclude that the Seattle Police Department officers

aged.” But the facts in Jackson are completely different. There, several

police officers confronted a group of 30 to 50 people when they attempted

to arrest a suspect with an outstanding warrant for theft. See Jackson, 268

F.3d at 649. When the suspect attempted to flee, “[f]ights broke out

between the officers and other members of [the plaintiff’s] group.” See id.

5

Hansen was decided before Saucier v. Katz, 533 U.S. 194 (2001), but

post-Saucier, we have repeatedly recognized that Hansen is still viable

and that it precludes qualified immunity in cases like this one. See Mere-

dith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003) (citing Hansen for the

proposition that “it was clearly established that the amount of force [the

plaintiff] says [the officer] used in handcuffing her was excessive, and a

reasonable agent in [the officer’s] position would have known that such

conduct violated the Fourth Amendment”); see also Davis v. City of Las

Vegas, 478 F.3d 1048, 1057 (9th Cir. 2007) (recognizing Hansen’s contin-

uing viability). The unpublished cases recognizing Hansen after Saucier

are even more numerous. See, e.g., Martinez-Rodriguez v. United States,

No. 09-35386, 2010 WL 1473991, at *1 (9th Cir. Apr. 14, 2010); Long v.

Pend Oreille County Sheriff’s Dep’t, 269 F. App’x 749, 751 (9th Cir.

2008). Pearson does not affect what is “clearly established” for qualified

immunity.

16864 LUCHTEL v. HAGEMANN

used excessive force here. And yet, it leaves out half of the

testimony—the other side of the story. We are appellate

judges, not jurors. This case should have its day in court.