Alejandro Velazquez v. City of Long Beach

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEJANDRO VELAZQUEZ, No. 12-56933

Plaintiff-Appellant,

D.C. No.

v. 2:11-cv-00120-

R-JEM

CITY OF LONG BEACH; LONG BEACH

POLICE DEPARTMENT; KALID

ABUHADWAN, Officer, in his OPINION

individual and official capacity;

MARTIN RON, Officer, in his

individual and official capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

December 9, 2014—Pasadena, California

Filed July 15, 2015

Before: Kim McLane Wardlaw and Marsha S. Berzon,

Circuit Judges and William E. Smith,* District Judge.

Opinion by Judge Berzon

*

The Honorable William E. Smith, Chief District Judge for the U.S.

District Court for the District of Rhode Island, sitting by designation.

2 VELAZQUEZ V. CITY OF LONG BEACH

SUMMARY**

Civil Rights

The panel reversed the district court’s judgment, entered

following a jury verdict, and remanded for a new trial in an

action brought pursuant to 42 U.S.C. § 1983, in which

plaintiff alleged that he was unlawfully arrested for resisting

a police officer, in violation of California Penal Code Section

148(a)(1), and that excessive force was used during his arrest.

Reversing the district court’s grant of judgment as a

matter of law on plaintiff’s unlawful arrest claim, the panel

held that there was sufficient evidence at trial on which a

reasonable jury could have concluded that no probable cause

for the arrest existed, based both on evidence that plaintiff did

not in fact resist the police officer and evidence that plaintiff

did not impede the police officer in the exercise of his lawful

duties.

Reversing the jury’s verdict on the excessive force claim,

the panel held that the district court’s grant of judgment as a

matter of law on the lawfulness of the arrest, in conjunction

with the district court’s instructions on the excessive force

claim, improperly influenced the jury’s consideration of the

excessive force claim.

The panel held that the district court’s categorical

exclusion of evidence relevant to establishing plaintiff’s

theory of municipal liability was an abuse of discretion and

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

VELAZQUEZ V. CITY OF LONG BEACH 3

that this incorrect evidentiary ruling resulted in the district

court erroneously entering judgment as a matter of law for the

defendants. The panel therefore reversed the district court’s

grant of judgment as a matter of law on the claims against the

City of Long Beach and Long Beach Police Department,

brought under Monell v. Department of Social Services, 436

U.S. 658 (1978).

Finally, the panel held that the district court erred by

dismissing plaintiff’s state law claims. On remand, the panel

instructed the Chief Judge for the Central District of

California to reassign this case to a different district judge.

COUNSEL

Mitchell Keiter, Beverly Hills, California, for Plaintiff-

Appellant.

Howard D. Russell (argued), Deputy City Attorney; Charles

Parkin, City Attorney, Long Beach, California, for

Defendants-Appellees.

4 VELAZQUEZ V. CITY OF LONG BEACH

OPINION

BERZON, Circuit Judge:

Alejandro Velazquez was arrested in front of his home in

Long Beach, California, for violating California Penal Code

§ 148, which prohibits resisting or obstructing a police

officer. In making the arrest, a Long Beach police officer

struck Velazquez with a police baton about eleven times,

injuring him. No charges relating to this incident were ever

brought against Velazquez.

Velazquez sued the city of Long Beach (“the City”) and

several police officers (collectively, the “Officers”) under

42 U.S.C. § 1983 and California law, contending that he was,

among other things, unlawfully arrested and subjected to

excessive force. The case went to trial. After the parties

finished putting on evidence, the district court granted the

City’s and the Officers’ Rule 50(a) motion for judgment as a

matter of law as to Velazquez’s § 1983 unlawful arrest and

municipal liability claims. The district court then dismissed

Velazquez’s state law claims without prejudice. Velazquez’s

excessive force claim went to the jury, which returned a

defense verdict.

We conclude that the district court incorrectly applied the

Rule 50(a) standard, erroneously excluded relevant Monell

evidence, and improperly dismissed the state law claims. The

district court’s grant of judgment as a matter of law on the

unlawful arrest claim so substantially affected the jury’s

verdict on the excessive force claim as to require its reversal.

Consequently, we reverse and remand for a new trial on all of

Velazquez’s claims.

VELAZQUEZ V. CITY OF LONG BEACH 5

I. Background

A. The Incident

On the afternoon of October 24, 2009, Alejandro

Velazquez’s girlfriend took him to a restaurant for lunch to

celebrate his birthday. During lunch, Velazquez consumed

two or three mixed alcoholic drinks. Lunch over, Velazquez

returned to his home — he lived with his mother — to “hang

out” with some friends. Velazquez and his friends remained

at the home from late that afternoon through the early

morning, during which Velazquez drank some more —

several beers or mixed drinks.

At approximately 3:30 AM on October 25, 2009, Long

Beach Police Department Officers Kalid Abuhadwan and

Martin Ron received a call regarding a disturbance at

Velazquez’s home. The officers were informed that there

was a group of eight to ten individuals “drinking [and] being

loud [that] came from a party across the street, possibly,” and

that “the calling party just wanted them moved along and

checked out.” The officers were aware that an “advisal call”

regarding the same group had come over the radio some time

earlier that morning, meaning that group had been advised

regarding a disturbance but not cited for any crimes.

The officers drove to the scene to “[t]ell the group to go

inside.” From that point on, the parties’ accounts of the

events diverge considerably.

1. Abuhadwan’s version

When the officers arrived at the scene, they saw about

eight to ten Hispanic individuals, including Velazquez,

6 VELAZQUEZ V. CITY OF LONG BEACH

standing around a vehicle on a “dimly lit street.” Some in the

group were holding beer cans. According to Abuhadwan, the

officers had no intention of arresting anyone, as the problem

was “something [that] easily could be avoided by just going

inside and turn[ing] off the music.”

Abuhadwan saw Velazquez, who was not holding a drink,

leaning against a vehicle and “holding on to [it] with both of

his hands.” Abuhadwan testified that to him, Velazquez’s

position indicated that he “was possibly under the influence

to the extent he couldn’t hold his own balance.” At the same

time, Abuhadwan did not believe that Velazquez appeared

“unable to care for himself.” As the officers arrived in their

patrol car, Abuhadwan told the group to “go inside, pick up

your trash,” and move a car blocking the street. Members of

the group began to do as told.

In response to the officer’s instructions, Velazquez said

“yeah, sure” while shaking his head left to right. Abuhadwan

interpreted this statement “as being sarcastic and telling the

group we’re not leaving, like, yeah, sure, move on, cop.”

Abuhadwan “ma[d]e a decision to detain” Velazquez because

“he was the only subject that refused to comply with the

orders.” Abuhadwan left his vehicle and approached

Velazquez. From about four feet away, Abuhadwan smelled

alcohol on Velazquez’s breath and observed that his eyes

were watery.

Abuhadwan then commanded Velazquez to place his

hands behind his head so he could conduct a “cursory”

search, telling Velazquez that he was “being detained for

[being] drunk in public.” According to Abuhadwan,

Velazquez replied “fuck off, I’m good.” Abuhadwan

repeated his command, to which Velazquez replied, “I ain’t

VELAZQUEZ V. CITY OF LONG BEACH 7

doing that. We don’t got to leave.” Abuhadwan then decided

to “apply a twist lock” to Velazquez.1 Velazquez did not

fight back. Abuhadwan testified that, at that point, Velazquez

was not under arrest, but was “being detained.”

After placing Velazquez in the twist lock, Abuhadwan

began to walk Velazquez to the patrol car. While walking

back to the vehicle, Abuhadwan felt Velazquez “sort of pull[]

away.” Abuhadwan executed an “arm bar takedown,”2 which

brought Velazquez to the ground. A “textbook” arm bar

takedown places the detainee in the “prone position,” with his

stomach to the ground, allowing the officer more control.

When Abuhadwan performed the takedown on Velazquez,

however, Velazquez “roll[ed] on his back and was facing”

Abuhadwan, with his fists clenched to his chest. Velazquez’s

legs were up in the air in a bicycle position, suggesting to

Abuhadwan that Velazquez was “ready to ground fight with

me.”3 Abuhadwan thereupon decided to arrest Velazquez

1

Abuhadwan described a “twist lock” as “grab[bing] the left arm [of the

subject] with your right hand, you C-clamp the back of the elbow to

prevent a subject from elbowing you in the face, and with your left hand

you grab the wrist in a C-lock motion . . . not to inflict pain, but to give .

. . the officer advantage and keep the subject off balance.”

2

Abuhadwan described an “arm bar takedown” as follows: “I maintain

control with my left hand and with my right hand I could either go over

the shoulder and push force downward; that causes the subject to go

towards the ground, or I use the edge of my hand and I apply force to the

elbow, which causes a pain arrow to the elbow to make the subject go

whatever direction you want.”

3

The police report Abuhadwan filed after the incident did not mention

that Velazquez had an aggressive bicycle stance, or that his legs were off

the ground.

8 VELAZQUEZ V. CITY OF LONG BEACH

“[f]or resisting, obstructing, [or] delaying a police officer,” in

violation of California Penal Code Section 148(a)(1).

Abuhadwan commanded Velazquez to roll over onto his

stomach and to place his hands to his sides. Velazquez did

not comply. Without warning, Abuhadwan struck him three

times on the shoulder with his baton, commanding Velazquez

again to roll over. With interspersed commands to roll over,

Abuhadwan proceeded to strike Velazquez eight more times,

hitting Velazquez’s shoulder, lower back and buttocks area,

left bicep, and hands (which were clenched to his chest).

When Velazquez did begin to roll over during the strikes,

Abuhadwan feared “he was going to get up onto his feet,” so

he continued the baton strikes,“swing[ing] at full force the

entire time.” While Velazquez was being struck with the

baton, he shouted “leave me the fuck alone.”

After eleven baton strikes, Velazquez rolled onto his

stomach and placed his hands to his side; Abuhadwan then

handcuffed him. Abuhadwan observed no injuries to

Velazquez. Once other police units arrived at the scene,

Abuhadwan lifted Velazquez from the ground, placed him

under arrest, and drove him to the police station to be booked.

2. Other witnesses’ version

Velazquez and other witnesses recalled a starkly different

series of events.

According to them, no one was drinking on the street at

the time the police arrived, and there were no beer bottles or

VELAZQUEZ V. CITY OF LONG BEACH 9

cans present.4 Dennis Torres Magana, Velazquez’s nephew

who was at the scene, testified that, after the officers had

pulled up in their police car, he told Abuhadwan, “Don’t

worry. We’re leaving, Officer.” Velazquez, who had been

speaking to his mother, Elvira Hernandez, then asked Magana

and the officers, “what’s up?” Velazquez recalled a similar

interchange — according to him, he asked the officers,

“what’s going on?”

Abuhadwan appeared to be driving away when Velazquez

asked his question, but he “stopped the car, put it in reverse,

came back” and asked what Velazquez had said. Velazquez

replied, “I said, ‘what’s up.’” The officers then got out of the

car, and Abuhadwan started “speed walking towards”

Velazquez. Magana heard Abuhadwan say, “I’m tired of

people calling because of you, mother fuckers.”5 Abuhadwan

then, according to Magana, grabbed Velazquez and “threw

him to the ground.” Magana testified that Velazquez offered

“no resistance” when Abuhadwan grabbed him. Velazquez

similarly testified that Abuhadwan “walk[ed] up to [him],

“grab[bed] him,” and “threw [him] to the ground.”

According to Velazquez and Magana, Abuhadwan as he

approached did not tell Velazquez to put his hands behind his

head. Officer Ron, who was approximately four to ten feet

away, also testified that he did not hear Abuhadwan issue any

such order. Several witnesses at trial, including Ron, testified

that they did not recall Velazquez telling Abuhadwan to “fuck

4

No photographs were taken, nor was any evidence collected, at the

scene of the incident.

5

Abuhadwan disputed that he made such a statement.

10 VELAZQUEZ V. CITY OF LONG BEACH

off”; indeed, Ron testified that he did not hear Velazquez

utter any profanities during the “entire altercation.”

After being taken down to the ground, Velazquez did not

hear Abuhadwan tell him to roll over or issue any other

commands. Magana testified that Abuhadwan did not give

Velazquez an opportunity to roll over onto his stomach before

striking him with the baton. Several witnesses stated that

while being struck on the ground, Velazquez told Abuhadwan

several times, “I’m not about violence”; Abuhadwan disputed

that Velazquez said that. Witnesses also testified that after

Velazquez rolled over, Abuhadwan continued to strike him.

According to Velazquez’s mother, Velazquez was bleeding

from the side of his face as he was taken to the patrol car.

3. Subsequent events

At the police station, Velazquez agreed to a breathalyzer

test. The breath sample came back with a blood alcohol

content (BAC) level of 0.15.6

While at the station, Abuhadwan and Ron noticed that

Velazquez had been injured. A nurse at the station advised

that Velazquez should be taken to a hospital for treatment.

Abuhadwan, Ron, and their supervisor, Sergeant Mauk, then

transported Velazquez to the hospital. There was evidence

6

California’s public intoxication statute provides: “[E]very person . . .

[w]ho is found in any public place under the influence of intoxicating

liquor . . . in a condition that he or she is unable to exercise care for his or

her own safety or the safety of others [is guilty of a misdemeanor].” Cal.

Penal Code § 647(f). Although Abuhadwan testified that, as a matter of

Long Beach police policy, a person must have a BAC level of at least 0.15

or 0.16 to be charged with public intoxication, the Penal Code specifies no

BAC level for the public intoxication offense.

VELAZQUEZ V. CITY OF LONG BEACH 11

that Velazquez was indeed injured. He needed surgery for

injuries to his finger and sutures on his ear. In addition,

Velazquez experienced significant bruising on his arms,

chest, and shoulder areas, as well as, he testified, “intense”

pain throughout his body.

Velazquez was discharged from police custody after he

left the hospital. He was never charged for any offense in

connection with the incident.

B. The Lawsuit

Velazquez sued Abuhadwan and Ron under 42 U.S.C.

§ 1983, alleging that the Officers unlawfully arrested him and

used excessive force against him in violation of the Fourth

Amendment. Velazquez also sued the City and Long Beach

Police Department under Monell v. Department of Social

Services, 436 U.S. 658 (1978), alleging, among other things,

that the City “maintained a policy, pattern, practice and

custom of permitting, encouraging, and ratifying the use of

unnecessary and unreasonable force” by police officers, and

that the City “fail[ed] and refus[ed] to investigate or

discipline police officers known to have repeatedly violated

the constitutional rights of suspects.” In addition to the

federal civil rights claims, Velazquez brought state law

claims of negligence, intentional infliction of emotional

distress, assault and battery, and false arrest.

Before trial, each side filed several motions in limine. As

relevant here, the defendants filed a motion to preclude any

reference to complaints, internal affairs history, and discipline

concerning the Officers. The district court reserved

consideration of all the motions in limine until trial. On the

first day of trial, the district court granted the motion to

12 VELAZQUEZ V. CITY OF LONG BEACH

preclude reference to officer complaints, discipline, and

internal affairs history.

After the close of evidence, the City and Officers filed a

Rule 50(a) motion for judgment as a matter of law on

Velazquez’s federal claims. The City argued that there was

insufficient evidence to find for Velazquez on his Monell

claims. As to Velazquez’s “Fourth Amendment [unlawful

arrest] claim,”7 the Officers contended that “the evidence is

that Mr. Velazquez refused to comply with the officers’

commands; that Mr. Velazquez, in response to the officers’

commands not only failed to comply, but he resisted by

pulling away from the officer.” These actions, the Officers

contended, created probable cause that Velazquez had

committed a misdemeanor, in violation of California Penal

Code Section 148(a)(1),8 in the presence of the officers. In

addition, the Officers claimed that Abuhadwan had

“reasonable suspicion to detain Mr. Velazquez to investigate

the possible crime of public intoxication,” that is, a violation

of California Penal Code Section 647(f). Thus, the Officers

maintained, “a reasonable juror would not be able to find by

a preponderance for the plaintiff on [the unlawful arrest]

claim.”

The district court granted the Rule 50(a) motion as to the

§ 1983 Monell and unlawful arrest claims. The district court

7

Although the Complaint alleges the § 1983 excessive force and

unlawful arrest claims in a single count, both parties analyzed the claims

separately. So do we.

8

Section 148(a)(1) provides that, “Every person who willfully resists,

delays, or obstructs any . . . peace officer . . . in the discharge or attempt

to discharge any duty of his or her office or employment, . . . shall be

[guilty of a misdemeanor].” Cal. Penal Code § 148(a)(1).

VELAZQUEZ V. CITY OF LONG BEACH 13

did not explain the rationale for its grant of judgment as a

matter of law as to the Monell claims. As to the unlawful

arrest claim, the district court found “that there’s evidence

that [Velazquez] refused to do what the officer asked him to

do.” When Velazquez’s counsel noted that there had been

testimony from several witnesses that no commands were

given, the court responded that “[t]here’s no evidence of that

at all.” “The fact that witnesses testified that they didn’t hear

[Abuhadwan] give any instructions to Mr. Velazquez,” the

district court further stated, “doesn’t mean that it wasn’t done

[—] [t]hat doesn’t defeat the evidence that was given in the

[matter].” The district court also commented on the

credibility of Velazquez’s testimony: “[Velazquez’s]

testimony was not all that great either, because it was I don’t

remember, I don’t remember. . . . [Velazquez] is not too good

at remembering things.”

The district court then dismissed Velazquez’s state law

claims without prejudice, finding there to be a “problem of

instructing differently for State claims of excessive force and

1983 excessive force.” The district court reserved the § 1983

excessive force claim and submitted it to the jury, which

returned a defense verdict. Velazquez appeals the final

judgment.9

II. Analysis

We review the district court’s grant of a motion for

judgment as a matter of law de novo. See Krechman v. Cnty.

of Riverside, 723 F.3d 1104, 1109 (9th Cir. 2013). A district

9

The issue of qualified immunity did not factor into the district court’s

decision, and the Officers do not contend on appeal that they are entitled

to qualified immunity as to any of Velazquez’s claims.

14 VELAZQUEZ V. CITY OF LONG BEACH

court’s evidentiary rulings are reviewed for abuse of

discretion and the district court will be reversed on the basis

of an erroneous evidentiary ruling only if any error was

prejudicial. See C.B. v. City of Sonora, 769 F.3d 1005, 1021

(9th Cir. 2014) (en banc). Likewise, we “review the district

court’s refusal to exercise supplemental jurisdiction for an

abuse of discretion.” San Pedro Hotel Co. v. City of L.A.,

159 F.3d 470, 478 (9th Cir. 1998).

A. § 1983 Unlawful Arrest Claim

The district court ruled that a reasonable jury could not

have found that Abuhadwan lacked probable cause to arrest

Velazquez for resisting a police officer, in violation of

California Penal Code Section 148(a)(1). Applying the

proper legal standard, however, there was certainly sufficient

evidence at trial on which a reasonable jury could have

concluded that no probable cause existed, based both on

evidence that Velazquez did not in fact resist Abuhadwan and

evidence that Velazquez did not impede Abuhadwan in the

exercise of his lawful duties, a requirement under the

California misdemeanor prohibiting resisting a police officer.

In concluding otherwise, the district court “improperly

weighed evidence favorable to [Velazquez] against other

evidence presented at trial and failed to draw all reasonable

inferences in [Velazquez’s] favor.” Krechman, 723 F.3d at

1110. We therefore reverse the grant of judgment as a matter

of law on Velazquez’s unlawful arrest claim.

1. Legal Principles

(i) A motion for judgment as a matter of law may be

granted if “the court finds that a reasonable jury would not

have a legally sufficient evidentiary basis to find for the party

VELAZQUEZ V. CITY OF LONG BEACH 15

on that issue,” Fed. R. Civ. P. 50(a), — that is, “if, under the

governing law, there can be but one reasonable conclusion as

to the verdict,” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250 (1986). Conversely, “[i]f reasonable minds could

differ as to the import of the evidence, . . . a verdict should

not be directed.” Id. at 250–51. When deciding whether to

grant a Rule 50(a) motion, “[t]he court must draw all

reasonable inferences in favor of the nonmoving party, and it

may not make credibility determinations or weigh the

evidence.” Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 150 (2000); see also Krechman, 723 F.3d at

1110.

“A claim for unlawful arrest is cognizable under § 1983

as a violation of the Fourth Amendment, provided the arrest

was without probable cause or other justification.” Lacey v.

Maricopa Cnty., 693 F.3d 896, 918 (9th Cir. 2012) (quoting

Dubner v. City & Cnty. of S.F., 266 F.3d 959, 964 (9th Cir.

2001)). “Probable cause exists when there is a fair

probability or substantial chance of criminal activity.” United

States v. Patayan Soriano, 361 F.3d 494, 505 (9th Cir. 2004).

“[T]he determination of probable cause is based upon the

totality of the circumstances known to the officers at the

time” of the arrest. Id.

(ii) In analyzing whether a reasonable jury could have

found a lack of probable cause to arrest, we look to the

asserted crime for which the arrest took place. The elements

of the asserted crime at issue here, a Section 148(a)(1)

violation, are: “(1) the defendant willfully resisted, delayed,

or obstructed a peace officer, (2) when the officer was

engaged in the performance of his or her duties, and (3) the

defendant knew or reasonably should have known that the

other person was a peace officer engaged in the performance

16 VELAZQUEZ V. CITY OF LONG BEACH

of his or her duties.” Garcia v. Superior Court, 177 Cal.

App. 4th 803, 818 (2009) (internal quotation marks omitted).

Notably, “[f]or a § 148(a)(1) conviction to be valid, a

criminal defendant must have ‘resist[ed], delay[ed], or

obstruct[ed]’ a police officer in the lawful exercise of his

duties.” Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir.

2005) (en banc) (alterations in original). “The longstanding

rule in California . . . is that a defendant cannot be convicted

of an offense against a peace officer ‘engaged in . . . the

performance of . . . [his or her] duties’ unless the officer was

acting lawfully at the time the offense against the officer was

committed.” In re Manuel G., 16 Cal. 4th 805, 815 (1997)

(alteration in original) (quoting People v. Gonzalez, 51 Cal.3d

1179, 1217 (1990)). Consequently, “Section 148(a) does not

make it a crime . . . to resist unlawful orders.” Maxwell v.

Cnty. of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2013).

And, for the purposes of Section 148(a), “an officer is not

lawfully performing her duties when she detains an individual

without reasonable suspicion or arrests an individual without

probable cause.” Garcia, 177 Cal. App. 4th at 819 (emphasis

omitted).

In Johnson v. Bay Area Rapid Transit District, 724 F.3d

1159 (9th Cir. 2013), for instance, a defendant police officer

argued that the district court incorrectly denied him qualified

immunity for arresting plaintiff Greer. More specifically, he

“contend[ed] he had probable cause to arrest Greer for

impeding him in the performance of his duties — a violation

of California Penal Code § 148 — because by returning to the

train, Greer evaded [the officer’s] attempt to detain and

question the entire group of young men.” 724 F.3d at 1178.

The district court had found that because the officer “lacked

both ‘probable cause to believe that plaintiffs had committed

any underlying criminal violation,’ and ‘reasonable suspicion

VELAZQUEZ V. CITY OF LONG BEACH 17

to detain plaintiffs for investigatory purposes,’” the officer

“also lacked probable cause to arrest Greer for violating

section 148.” Id. We affirmed, observing that “[a] suspect

cannot be arrested for violating section 148 because he

evaded an officer’s attempt to arrest him unlawfully.” Id.

Where police officers “ha[ve] no lawful basis for stopping”

an individual, we held, they “ha[ve] no lawful basis to pursue

and arrest [that individual] for not acceding to the

investigatory stop.” Id.

(iii) Additionally, “Ninth Circuit law . . . clearly

establishes the right verbally to challenge the police,” and

“verbal protests [cannot] support an arrest under § 148.”

Mackinney v. Nielsen, 69 F.3d 1002, 1007 (9th Cir. 1995);

see also Johnson, 724 F.3d at 1174; Duran v. City of

Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990). Likewise,

“California law . . . gives citizens considerable latitude in

confronting the police.” Mackinney, 69 F.3d at 1007 (citing

People v. Wetzel, 11 Cal. 3d 104, 107–09 (1974)).

Furthermore, Section 148 does not “criminalize[] a person’s

failure to respond with alacrity to police orders.” People v.

Quiroga, 16 Cal. App. 4th 961, 966 (1993); see also

Mackinney, 69 F.3d at 1008 (holding that plaintiff’s “refus[al]

to comply for a matter of seconds” with police officers’

“order[] to stop writing on the sidewalk” was not a violation

of Section 148).

Duran v. City of Douglas is particularly illuminating in

this regard. In Duran, defendant Officer Aguilar was

“dispatched to a downtown hotel in response to a bartender’s

complaints about an unruly patron,” plaintiff Duran.

904 F.2d at 1374. Duran, who was intoxicated and

threatening the bartender, “exchanged a few heated words”

with Aguilar and then left the bar in a car driven by his wife.

18 VELAZQUEZ V. CITY OF LONG BEACH

Id. “Soon thereafter, while out on patrol, Aguilar observed a

car with a passenger [Duran] who was directing an obscene

gesture toward him through an open window.” Id. Aguilar

followed the car and initiated a traffic stop; when Aguilar

then ordered Duran to step away from the car, Duran replied

“I don’t have to.” Id. In response to Aguilar’s explanation

that he had stopped Duran “to find out why [he] had yelled

profanities and made an obscene gesture,” Duran uttered

“further profanities.” Id. at 1375. Aguilar then decided to

arrest Duran for disorderly conduct. Duran brought a § 1983

action for damages resulting from the alleged unlawful stop

and arrest against Aguilar.

The district court granted him partial summary judgment,

and we affirmed. Noting that “police [may] not interfere with

the freedom of private persons unless it be for specific,

legitimate reasons,” Duran found any such reasons to be

“[m]issing from the record.” Id. at 1376–77. That Duran

“was making obscene gestures toward [Aguilar] and yelling

profanities,” we explained, “was not illegal,” as “criticism of

the police is not a crime.” Id. at 1377 (citing Houston v. Hill,

482 U.S. 451, 461–63 (1987)). Nor, we held, did Duran’s

verbal conduct “constitute[] disorderly conduct or a

disturbing of the peace”; Duran was traveling “late at night on

a deserted road,” and there was no evidence “that he had

committed or was about to commit any other illegal act.” Id.

We thus held that “the stop and detention was illegal.” Id.

Furthermore, we observed that the “possible motive” for

Duran’s detention was “retaliation for the insult [Aguilar]

received from Duran.” Id. at 1377–78. But this motive is

“one upon which law enforcement officers may not

legitimately rely,” as it “would constitute a serious First

Amendment violation.” Id. “While police . . . may resent

VELAZQUEZ V. CITY OF LONG BEACH 19

having obscene words and gestures directed at them,” we

explained, “they may not exercise the awesome power at their

disposal to punish individuals for conduct that is not merely

lawful, but protected by the First Amendment.” Id. at 1378.

Indeed, an “expression of disapproval toward a police officer

. . . f[alls] squarely within the protective umbrella of the First

Amendment and any action to punish or deter such speech —

such as stopping or hassling the speaker — is categorically

prohibited by the Constitution.” Id.

The district court’s Rule 50 ruling cannot be squared

with these governing principles, either procedurally or

substantively.

2. The District Court’s Procedurally Improper Rule 50

Analysis

The district court noted, first, that “there’s evidence that

the plaintiff refused to do what the officer asked him to do,”

further explaining that Velazquez was “impeding the actions

of the officers in trying to disperse [the] crowd, and that’s it.”

There was indeed testimony as to the first point —

principally, that of Abuhadwan himself. Whether there was

actually evidence on the second point, impeding the officers

in their attempt to disperse the crowd, is debatable. But

whether there was or was not doesn’t matter. Velazquez

indisputably presented significant evidence at trial tending to

show that he did not in fact disobey or impede Abuhadwan in

the ways Abuhadwan maintained and the district court found.

Abuhadwan testified that Velazquez responded to his

order to disperse by sarcastically stating, “yeah sure.” But

other witnesses disputed that Velazquez ever made such a

statement. Instead, they testified that Velazquez was

20 VELAZQUEZ V. CITY OF LONG BEACH

speaking with his mother when the police arrived, and then

approached the officers to simply inquire about what was

happening — saying “what’s up” or “what’s going on.” And,

although the district court was particularly concerned by

Velazquez’s alleged statement to Abuhadwan to “fuck off,”

and indeed asked counsel whether that statement was

“something that creates probable cause,” the second officer

on the scene, Ron, testified that he was four to ten feet away

from Abuhadwan but heard no profanity. Other witnesses

similarly testified that they never heard Velazquez utter a

single profanity. Rather, they recalled Abuhadwan stating,

“I’m tired of people calling because of you, mother fuckers.”

Yet, when plaintiff’s counsel argued that Abuhadwan was

the only witness who testified that Velazquez said “fuck

you,” the district judge replied that there was “[n]o evidence

to the contrary.” That was not so. Velazquez had specifically

denied that he made such a statement. When reminded of that

detail, the district court pronounced Velazquez generally not

credible: “His testimony was not all that great either, because

it was I don’t remember, I don’t remember.” And the district

judge further commented, when discussing Velazquez’s

witnesses, that although “they say they didn’t hear [the

profanities] . . . we don’t know that they didn’t hear it,”

remarking that “it appears that the witnesses were prepared to

answer those questions.” Contrary to the district court’s

conclusion, a jury could reasonably infer from the testimony

of several nearby witnesses — including a police officer —

that they did not hear Velazquez say “fuck off” or use any

other profanity, and that no such words were uttered.

Other aspects of Velazquez’s alleged resistance were also

highly contested. Several witnesses, including Ron, the

second officer, testified that they never heard Abuhadwan ask

VELAZQUEZ V. CITY OF LONG BEACH 21

Velazquez to put his hands behind his head before using the

arm twist lock. The district court found — once more — that

the fact that “Officer Ron didn’t hear it[] doesn’t mean

anything,” and further noted that “[t]he fact that witnesses

testified that they didn’t hear [Abuhadwan] give any

instructions to Mr. Velazquez, doesn’t mean that it wasn’t

done . . . [it] doesn’t defeat the evidence that was given in the

[matter].” Moreover, when plaintiff’s counsel stated during

the Rule 50(a) colloquy that the witnesses were “in a position

that if a command was given, they would have heard it,” the

district court concluded that “[t]here’s no evidence of that at

all.” But, again, a reasonable jury could view the testimony

as demonstrating that the witnesses would have heard the

order had it been audibly given, thus confirming Velazquez’s

and Magana’s statements that no such audible order was

given.

Witnesses also testified that Abuhadwan did not give

Velazquez the opportunity to comply with his command to

roll over on his stomach as he was striking him. Furthermore,

numerous witnesses, including Velazquez himself, recalled

that Velazquez had shouted that he was “not about violence”

several times during the altercation. And Abuhadwan

acknowledged that Velazquez never threatened him or

physically assaulted him, although he feared that he might

physically assault him from the fact that his feet were in the

air. A reasonable jury could have inferred from this evidence

that Abuhadwan had no plausible reason to believe that

Velazquez was a physical threat to him, and that Abuhadwan

never gave Velazquez an opportunity peacefully to comply

once on the ground.

It is evident that, in granting the defendants’ motion for

judgment as a matter of law on Velazquez’s unlawful arrest

22 VELAZQUEZ V. CITY OF LONG BEACH

claim, the district court did not apply the correct legal

standard for granting a judgment as a matter of law after the

close of evidence in a civil trial. Instead, the district court

disregarded evidence supporting Velazquez’s version of

events; improperly chose to credit the defense’s witnesses

over Velazquez’s; made adverse credibility findings about

Velazquez and his supporting witness; and refused to draw all

reasonable inferences in Velazquez’s favor. To be sure, the

jury could reasonably have believed Abuhadwan’s account of

the events. But the evidence was far from “one-sided,” and

surely did not give rise to “but one reasonable conclusion as

to the verdict.” Anderson, 477 U.S. at 250, 252. The district

court’s grant of judgment as a matter of law was therefore

procedurally improper, and cannot stand unless, despite the

district court’s erroneous analysis, the facts as construed most

favorably to Velazquez could only lead a rational jury to the

conclusion that Abuhadwan had probable cause to arrest him.

3. Proper Substantive Application of Rule 50

Applying the correct Rule 50 analysis, there is no doubt

that the unlawful arrest claim should have gone to the jury, as

a reasonable jury could have decided in Velazquez’s favor.

Drawing all reasonable inferences in Velazquez’s favor,

Velazquez’s conduct in this case appears “not only lawful,

but . . . protected by the First Amendment.” Johnson,

724 F.3d at 1174.

According to Velazquez’s and the other witnesses’

accounts of the incident, the only asserted “resistance”

Velazquez posed to Abuhadwan before Abuhadwan decided

to detain him was his questioning — “what’s up” or “what’s

going on” — aimed at learning why the police officers

arrived in front of his home. Such benign questioning cannot

VELAZQUEZ V. CITY OF LONG BEACH 23

give rise to probable cause that Velazquez “willfully

resist[ed], delay[ed], or obstruct[ed]” a police officer, Cal.

Penal Code § 148(a)(1), within the meaning of the statute.

The constitutional guarantee of free speech precludes

criminalizing even strong expressions of frustration or

dislike, whether directed at a law enforcement officer or

someone else. See United States v. Poocha, 259 F.3d 1077,

1082 (9th Cir. 2001); Duran, 904 F.2d at 1378.

Rather, on Velazquez’s version of events, a reasonable

jury could infer that the likely “motive” for Abuhadwan’s

detention and subsequent arrest of Velazquez was

“retaliation” for a perceived challenge to the officer.10

10

Although the Officers acknowledge that “any alleged public

intoxication did not factor into the district court’s . . . ruling,” they tersely

contend on appeal that “there was reasonable suspicion to detain” him on

this basis nonetheless. However, “[i]ssues raised in a brief that are not

supported by argument are deemed abandoned.” Martinez-Serrano v. INS,

94 F.3d 1256, 1259 (9th Cir. 1996).

In any event, under California law, a criminal defendant must be

“incapacitated as a result” of a substance to be convicted of public

intoxication under Section 647(f). People v. Rich, 72 Cal. App. 3d 115,

122 (1977). The evidence at trial, including Abuhadwan’s own testimony,

indicates that Velazquez at no point appeared “unable to exercise care for

his . . . own safety or the safety of others.” Cal. Penal Code § 647(f). In

front of his own home leaning on a car, in the presence of his mother and

a group of friends, he was in no apparent danger at all. Nor was there any

evidence that he was endangering anyone around him when Abuhadwan

decided to detain him. Thus, a reasonable jury could have found that

Abuhadwan’s initial investigation and detention was unsupported by

reasonable suspicion that Velazquez had violated Section 647(f). That

Velazquez was later found to have had a blood alcohol level of 0.15 or

higher is of no relevance. That blood level was not known at the time

Abuhadwan decided to detain him. More importantly, a BAC level of

0.15 or higher is a Long Beach police minimum benchmark for a public

24 VELAZQUEZ V. CITY OF LONG BEACH

Duran, 904 F.2d at 1378. That is, a reasonable jury could

conclude that Abuhadwan might simply have been upset at

being subjected to what he believed to be mild sarcasm or

disrespect, and that Abuhadwan then arrested Velazquez for

the “offense of ‘contempt of cop,’ in which officers charge

resisting arrest or failure to obey or other minimal procedural

offenses simply to punish or exact retribution on disrespectful

or non-submissive individuals.” Erin Murphy,

Manufacturing Crime: Process, Pretext, and Criminal

Justice, 97 Geo. L.J 1435, 1451 n.50 (2009). But, as we held

in Duran, “law enforcement officers may not legitimately

rely” on such a basis for arrest, as doing so “would constitute

a serious First Amendment violation.” 904 F.2d at

1377–78.11

Nor did the events that took place after the initial

detention justify the arrest, on Velazquez’s version of events.

According to Velazquez, he did not resist later, either — he

was never told to put his hands behind his head and never

refused to do so, whether by uttering a profanity or otherwise.

Cf. Mackinney, 69 F.3d at 1006–07. In any event, “[i]t is well

established under California law that even ‘an outright refusal

to cooperate with police officers cannot create adequate

grounds for [police] intrusion’ without more.” Id. at 1006

(alteration in original) (quoting People v. Bower, 24 Cal.3d

intoxication arrest, not a substitute for the statutory lack of safety

elements.

11

Moreover, “contempt of cop” arrests may have other pernicious

consequences, such as wasting police resources and harming the overall

relationship between police departments and local communities. See

Christy E. Lopez, Disorderly (mis)Conduct: The Problem with “Contempt

of Cop” Arrests (June 2010), https://www.acslaw.org/sites/default/

files/Lopez_Contempt_of_Cop.pdf.

VELAZQUEZ V. CITY OF LONG BEACH 25

638, 649 (1979)). Furthermore, according to Velazquez and

the other witnesses, he was immediately thrown to the

ground; he was not first walked toward the police car, and so

never pulled away from Abhuhadwan while doing so.

According to those witnesses, Velazquez was never given a

chance to roll over; never had his legs in the air; and never

verbally or physically threatened Abuhadwan.

Crediting Velazquez’s account of the incident — as we

must on a Rule 50(a) motion — Velazquez’s conduct

provided Abuhadwan no lawful basis to justify detaining, let

alone arresting, Velazquez. At most, Velazquez’s statements

to Abuhadwan could be interpreted as expressing skepticism

about Abuhadwan’s intervention. But “[c]riticism of the

police, profane or otherwise, is not a crime.” Poocha,

259 F.3d at 1082; see also Duran, 904 F.2d at 1378. In

“detain[ing] [Velazquez] without reasonable suspicion,”

Abuhadwan was “not lawfully performing h[is] duties” under

California law. Garcia, 177 Cal. App. 4th at 819; see also In

re Manuel G., 16 Cal. 4th at 815. And, for the purposes of

Section 148(a)(1), where police officers “ha[ve] no lawful

basis for stopping” an individual, they “ha[ve] no lawful basis

to pursue and arrest [that individual] for not acceding to the

investigatory stop.” Johnson, 724 F.3d at 1178.

In sum, there was sufficient evidence for a jury to

conclude that Abuhadwan had no lawful basis upon which to

detain or investigate Velazquez, and thus that Abuhadwan

unlawfully arrested Velazquez for resisting or obstructing a

police officer in violation of Section 148(a)(1). We reverse

26 VELAZQUEZ V. CITY OF LONG BEACH

the district court’s grant of judgment as a matter of law as to

Velazquez’s unlawful arrest claim.12

4. Effect on Excessive Force Claim

Although Velazquez does not challenge the sufficiency of

evidence as to the jury’s verdict on his § 1983 excessive force

claim, he contends that the district court’s grant of judgment

as a matter of law on his unlawful arrest claim so

substantially prejudiced the jury’s consideration of the

excessive force claim as to warrant reversal of the verdict.

We agree. Removal of the unlawful arrest claim from the

jury’s consideration, in combination with the district court’s

jury instructions, fatally infected the jury’s verdict as to

excessive force.

(i) Under Graham v. Connor, 490 U.S. 386 (1989),

determining whether force used in making an arrest is

excessive calls for a fact-intensive inquiry requiring attention

to all circumstances pertinent to the need for the force used.

See id. at 396; see also Green v. City & Cnty. of S.F.,

751 F.3d 1039, 1049 (9th Cir. 2014) (the “objective

reasonableness” of officers’ use of force “is determined by an

assessment of the totality of the circumstances”). “[T]here

are no per se rules in the Fourth Amendment excessive force

context; rather, courts ‘must still slosh [their] way through the

factbound morass of ‘reasonableness.’” Mattos v. Agarano,

12

At oral argument, the City’s counsel contended for the first time that

the officers had reason to believe that Velazquez and the other individuals

present at the scene were disturbing the peace, in violation of California

Penal Code Section 415. As this argument was not mentioned in district

court or the appellate briefs, it is waived on appeal. See Clem v. Lomeli,

566 F.3d 1177, 1182 (9th Cir. 2009).

VELAZQUEZ V. CITY OF LONG BEACH 27

661 F.3d 433, 441 (9th Cir. 2011) (en banc) (alteration in

original) (quoting Scott v. Harris, 550 U.S. 372, 383 (2007)).

Therefore, courts “are free to consider issues outside the three

enumerated [in Graham] when additional facts are necessary

to account for the totality of circumstances in a given case.”

Id.

As we have recognized, “[b]ecause the excessive force

and false arrest factual inquiries are distinct, establishing a

lack of probable cause to make an arrest does not establish an

excessive force claim, and vice-versa.” Beier v. City of

Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004). Just proving

lack of probable cause for the arrest, for instance, does not

establish that the police used excessive force, or, indeed, any

force. See Mattos, 661 F.3d at 443 n.4 (rejecting plaintiff’s

argument that “any amount of force against her” was

excessive if the officers did not have probable cause, as the

absence of probable cause alone is insufficient to establish

excessive force). And force used by an officer to effectuate

an arrest, “regardless of whether [the officer] had probable

cause to [make the] arrest,” may still be reasonable, for

instance to overcome the arrestee’s forcible resistance. Arpin

v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 921–22

(9th Cir. 2001).13

13

Like this court, all other circuits that have addressed the question

prohibit a finding of excessive force predicated only on the fact of

unlawful arrest. See Snell v. City of York, Pa., 564 F.3d 659, 672 (3d Cir.

2009); Cortez v. McCauley, 478 F.3d 1108, 1127 (10th Cir. 2007) (en

banc); Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007); Papineau v.

Parmley, 465 F.3d 46, 61–62 (2d Cir. 2006); Bashir v. Rockdale Cnty.,

Ga., 445 F.3d 1323, 1331–32 (11th Cir. 2006); Bodine v. Warwick,

72 F.3d 393, 400–01 (3d Cir. 1995). That principle, however, is fully

consistent with the recognition that “the damages recoverable on an

unlawful arrest claim include damages suffered because of the use of force

28 VELAZQUEZ V. CITY OF LONG BEACH

Nevertheless, Graham counsels that the facts that gave

rise to an unlawful detention or arrest can factor into the

determination whether the force used to make the arrest was

excessive. Graham held that a constitutional complaint of

excessive force arises under the Fourth Amendment and

constitutes a claim concerning the overall reasonableness of

a seizure. See 490 U.S. at 394–97. “Determining whether the

force used to effect a particular seizure is ‘reasonable’ under

the Fourth Amendment requires a careful balancing of ‘the

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

Amendment interests’ against the countervailing

governmental interests at stake.” Id. at 396 (quoting

Tennessee v. Garner, 471 U.S. 1, 7–8 (1985)). Determining

whether a seizure is unreasonable because the force used was

excessive “requires careful attention to the facts and

circumstances of each particular case,” including the

consideration of the factors set forth in Graham: 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.” 490 U.S. at 396. “Underlying Graham’s

objective-reasonableness test is the clear principle that the

force used to make an arrest must be balanced against the

need for force: it is the need for force which is at the heart of

the Graham factors.” Blankenhorn v. City of Orange,

485 F.3d 463, 480 (9th Cir. 2007) (internal quotation marks

omitted).

Applying these principles, the facts underlying the seizure

are pertinent in judging the overall reasonableness of the

seizure for Fourth Amendment purposes, including the

in effecting the arrest.” Bashir, 445 F.3d at 1332 (internal quotation

marks omitted); see also Bodine, 72 F.3d at 400.

VELAZQUEZ V. CITY OF LONG BEACH 29

reasonableness of the force used to effectuate the seizure.

Graham specifies “the severity of the crime at issue” as one

of the factors to be considered, and stresses the need to attend

to the specific “facts and circumstances of each particular

case.” 490 U.S. at 396. Conducting this fact-based inquiry

encompasses a consideration of the facts known to the police

officers at the time. Id. Where officers are presented with

circumstances indicating that no crime was committed, the

“severity of the crime at issue” factor is necessarily

diminished as a justification for the use of force — although,

as our cases have held, the force used may still be reasonable

if the other Graham factors taken together favor that

conclusion.

The Second and Third Circuits’s approaches to the

intersection of unlawful arrest and excessive force claims are

compatible with ours, as they hold the Graham

reasonableness analysis applicable to an excessive force issue

whether or not there is also an unlawful arrest claim. See

Papineau, 465 F.3d at 61–62; Bodine, 72 F.3d at 400–01. In

Papineau, for instance, then-Judge Sotomayor explained that

“the reasonableness test established in Graham remains the

applicable test for determining when excessive force has been

used, including those cases where officers allegedly lack

probable cause to arrest.” 465 F.3d at 62. And, although the

Eleventh Circuit in Bashir held that a claim that officers

“used excessive force in the arrest because they lacked the

right to make the arrest . . . is not a discrete constitutional

violation [as] it is dependent upon and inseparable from [an]

unlawful arrest claim,” it stressed that the claim presented

there was “predicated solely on allegations the arresting

officer lacked the power to make an arrest.” 445 F.3d at

1332. Indeed, Bashir compared the circumstances there with

Thornton v. City of Macon, 132 F.3d 1395 (11th Cir. 1998),

30 VELAZQUEZ V. CITY OF LONG BEACH

a case in which the court had found that officers use

excessive force and committed an unlawful arrest. In

Thornton, Bashir explained, the Graham factor analysis

indicated that “‘the officers were not justified in using any

force.’” 445 F.3d at 1333 (quoting Thornton, 132 F.3d at

1400). Bashir’s approach, therefore, is likewise compatible

with ours detailed above.

The Tenth Circuit’s inquiry in cases “involving claims of

both unlawful arrest and excessive force arising from a single

encounter,” adopted without further elaboration by the Fifth

Circuit, appears on the surface somewhat different from our

analysis and that of the other circuits. Cortez, 478 F.3d at

1127–30; see also Freeman, 483 F.3d at 417. Cortez’s

excessive force framework requires assuming a hypothetical

lawful arrest for purposes of an excessive force claim, even

where there was none. 478 F.3d at 1129. Cortez thus

rejected one of the plaintiffs’ excessive force claims as the

force used “d[id] not exceed what would have been

reasonable to effectuate a lawful arrest under the[]

circumstances,” even though the plaintiff was arrested

without probable cause. Id.; see also Romero v. Story,

672 F.3d 880, 890 (10th Cir. 2012) (explaining that, under

Cortez, district courts facing unlawful arrest and excessive

force claims “must . . . analyze the excessive force inquiry

under the assumption the arrest was lawful”); Freeman,

483 F.3d at 417 (“[W]e must . . . analyze the excessive force

claim without regard to whether the arrest itself was

justified.”).

Still, in practice, Cortez seems to have applied an

approach similar to ours, as it did take into account the

circumstances underlying the arrest when assessing whether

excessive force was used. Taking the plaintiffs’ allegations

VELAZQUEZ V. CITY OF LONG BEACH 31

as true, Cortez first concluded that plaintiff Tina Cortez’s

detention was unlawful. It then looked to the facts underlying

that detention in making its excessive force determination in

favor of Tina Cortez, including the facts that she “was never

the target of the investigation,” and posed no safety or flight

threat. Cortez, 478 F.3d at 1130–31.

Moreover, the excessive force claim Cortez rejected

involved simply the force required to effectuate an arrest. Id.

at 1126 (the force consisted of officers “(1) grabb[ing]

[plaintiff Rick Cortez] by the arm and pull[ing] him from the

doorway of his home; (2) handcuff[ing] him; (3) plac[ing]

him in the back seat of a locked patrol car”). We thus cannot

say what the Tenth Circuit would conclude in a case like this

one, where the force the officers applied could likely have

resulted, according to Abuhadwan himself, in “serious bodily

injury,” if not death.

In sum, we conclude that, under Graham, an excessive

force analysis takes into account, among other considerations,

the facts known to the police at the time of the arrest with

respect to the alleged offense that triggered the arrest.

(ii) Proceeding under Graham, we conclude that the grant

of the Rule 50(a) motion on the lawfulness of the arrest, in

conjunction with the district court’s instructions on the

excessive force claim, improperly influenced the jury’s

consideration of Velazquez’s excessive force claim. The

judgment on the excessive force claim therefore cannot stand.

The bulk of the evidence presented by both sides went to

both the lawful arrest and excessive force claims, and the

circumstances underlying Velazquez’s arrest were a central

issue from the outset. On the first day of trial, the district

32 VELAZQUEZ V. CITY OF LONG BEACH

judge explained to the jury that they had been called to “an

excessive force . . . and an arrest” case. Moreover,

throughout the trial, the central theory of Velazquez’s case

was that Abuhadwan had no basis for detaining or arresting

him.

Yet, as it turned out, the jury was not provided any real

opportunity to consider, as part of the excessive force claim,

the circumstances that justified, or did not justify, the

detention and arrest. When instructing the jury on excessive

force, the district court explained that “a seizure of a person

is unreasonable under the Fourth Amendment if a police

officer uses excessive force in making a lawful arrest.”

Because a verdict had been directed as to the lawfulness of

the arrest, no jury instructions provided the jury with the

elements of the California crimes asserted to have provided

reasonable suspicion or probable cause for the detention and

arrest, or directed the jury to consider as part of the excessive

force claim the basis for the detention and arrest. The Ninth

Circuit Model Jury Instructions expressly direct district courts

to instruct juries considering § 1983 unlawful arrest claims as

to the “elements or description of applicable crime for which

probable cause must have existed.” 9th Cir. Model Civ. Jury

Instr. 9.20 (2007). Had the unlawful arrest claim gone to the

jury, as it should have, these matters would have been before

the jury, front and center.

Instead, the district court effectively required the jury to

presume that the arrest was constitutionally lawful, and so not

to consider facts concerning the basis for the arrest. Doing so

removed critical factual questions that were within the jury’s

province to decide. For instance, by taking from the jury the

question whether Abuhadawan’s arrest of Velazquez for

resisting or obstructing a police officer was lawful, the

VELAZQUEZ V. CITY OF LONG BEACH 33

district judge implied simultaneously that Velazquez was in

fact resisting or failing to obey the police officer’s lawful

instructions. Presuming such resistance could certainly have

influenced the jury’s assessment of “the need for force,”

Blankenhorn, 485 F.3d at 480, as well as its consideration of

the other Graham factors, including “whether [the suspect] is

actively resisting arrest or attempting to evade arrest by

flight,” 490 U.S. at 396. By erroneously granting judgment

as a matter of law on Velazquez’s unlawful arrest claim, the

district court impermissibly truncated the jury’s consideration

of Velazquez’s excessive force claim. Accordingly, we

reverse the jury’s verdict.14

B. Monell Claims

We also reverse the district court’s grant of the City’s

motion for a judgment as a matter of law on Velazquez’s

municipal liability claims.

Municipalities may be held directly liable for

constitutional violations under 42 U.S.C. § 1983, but they

“cannot be held liable . . . on a respondeat superior theory.”

Monell, 436 U.S. at 691. “Rather, . . . a plaintiff seeking to

impose liability on a municipality under § 1983 [must]

identify a municipal policy or custom that caused the

plaintiff’s injury.” Hunter v. Cnty. of Sacramento, 652 F.3d

1225, 1232–33 (9th Cir. 2011) (internal quotation marks

omitted). “[A] custom or practice can be inferred from . . .

evidence of repeated constitutional violations for which the

errant municipal officers were not discharged or

14

Because we reverse the jury’s verdict on the excessive force claim on

this ground alone, we do not address Velazquez’s evidentiary arguments

as to the excessive force claim.

34 VELAZQUEZ V. CITY OF LONG BEACH

reprimanded.” Id. at 1233 (internal quotation marks omitted).

Evidence of “identical incident[s]” to that alleged by the

plaintiff may establish that a municipality was put on notice

of its agents’ unconstitutional actions, Henry v. Cnty. of

Shasta, 132 F.3d 512, 518–21 (9th Cir. 1997), opinion

amended on denial of reh’g, 137 F.3d 1372 (9th Cir. 1998),

while general evidence of departmental treatment of

complaints and of the use of force can “support[] the

[plaintiff’s] theory that . . . disciplinary and complaint

processes . . . contributed to the police excesses complained

of because the procedures made clear to [the] officer that . . .

[he] could get away with anything,” Larez v. City of L.A.,

946 F.2d 630, 646–47 (9th Cir. 1991).

Velazquez advanced several theories of Monell liability

for excessive use of force, one of which was that the City had

a policy or custom of failing to investigate and discipline

officers who had allegedly committed prior instances of

excessive force. In his pre-trial motions, Velazquez

represented that Abuhadwan in particular had received “ten

citizen complaints regarding his conduct,” that three of these

complaints involved excessive force, and that Abuhadwan

had over “30 internal affairs incidents of force since 2007, 19

of them using a baton or flashlight.” At the start of trial,

however, without any explanation, the district court granted

Defendants’ motion in limine to “preclude reference to

complaints, Internal Affairs, and discipline.”15 As a result,

the evidentiary basis for a failure-to-discipline Monell theory

was never presented to the jury.

15

Defendants had argued that such evidence was irrelevant to

establishing Velazquez’s Monell claims, in addition to causing prejudice

and constituting inadmissible character evidence.

VELAZQUEZ V. CITY OF LONG BEACH 35

“Evidence is relevant if . . . it has any tendency to make

a fact more or less probable than it would be without the

evidence.” Fed. R. Evid. 401. The excluded evidence was

relevant, indeed critical, to prove that the City was aware of

Abuhadwan’s alleged tendency to use excessive force.

The district court may have been concerned that

permitting the introduction of evidence of prior complaints

would have suggested to the jury that Abuhadwan acted in

accordance with these past actions. See Fed. R. Evid. 404(b).

But any such suggestion could have been cured short of

categorical exclusion by an appropriate limiting instruction.

See, e.g., United States v. Ramos-Atondo, 732 F.3d 1113,

1124 (9th Cir. 2013) (noting that any “practical prejudice”

resulting from the admission of Rule 404(b) evidence can be

“minimized by the district court’s careful limiting instruction

to the jury”); Dubria v. Smith, 224 F.3d 995, 1002 (9th Cir.

2000) (“[C]autionary instruction[s] [are] presumed to have

cured prejudicial impact.”). Instead, the district court entirely

prevented Velazquez from developing a potentially

meritorious Monell claim, without any explanation for its

decision.

Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996), is

particularly instructive in explaining why the exclusion of the

proffered lack-of-discipline evidence was an abuse of

discretion. The plaintiff in Beck presented five prior

complaints of excessive force against the defendant officer in

support of his Monell claim and demonstrated that none of the

complaints resulted in disciplinary action. Id. at 973. Beck

recognized that “evidence of other wrongs or acts [that are]

not admissible to prove the character of a person” under

Federal Rule of Evidence 404(b) was nonetheless admissible

for “proof of knowledge” on the part of the police

36 VELAZQUEZ V. CITY OF LONG BEACH

department. Id. Based on the admitted evidence, Beck held

that “a reasonable jury could have inferred that the Chief of

Police knew, or should have known, of [the officer’s]

propensity for violence when making arrests.” Id.

As in Beck, a jury might have been able reasonably to

infer from prior complaints that the Long Beach Police

Department was aware that Abuhadwan had previously used

excessive force when making arrests, but had taken no steps

to curb his propensity. By precluding any reference to such

evidence, the district court prevented Velazquez from even

attempting to make such a showing. We thus hold the district

court’s categorical exclusion of evidence relevant to

establishing Velazquez’s theory of municipal liability an

abuse of discretion.

In granting judgment as a matter of law, the district court

concluded that “a reasonable jury would not have a legally

sufficient evidentiary basis to find for” Velazquez on his

municipal liability claim. Fed. R. Civ. P. 50(a). But when

the district court categorically excluded relevant Monell

evidence, it “invaded the province of the jury,” to whom the

excluded evidence may well have made a difference.

Stuhlmacher v. Home Depot U.S.A., Inc., 774 F.3d 405, 409

(7th Cir. 2014).

The City does not argue that this exclusion of potentially

critical evidence was harmless. See C.B., 769 F.3d at 1021.

We therefore hold that the “incorrect evidentiary ruling

resulted in the judge erroneously entering judgment as a

matter of law for the defendants,” Stuhlmacher, 774 F.3d at

409, and reverse the district court’s grant of judgment as a

matter of law on the Monell claims.

VELAZQUEZ V. CITY OF LONG BEACH 37

C. State Law Claims

The district court dismissed Velazquez’s state law claims,

over plaintiff counsel’s objection, on the ground that

instructing on both federal and state liability for false arrest

and excessive force would confuse the jury. The dismissal of

the state law claims was error.

A district court “may decline to exercise supplemental

jurisdiction over a claim . . . if . . . the district court has

dismissed all claims over which it has original jurisdiction.”

28 U.S.C. § 1367(c); see also Sanford v. MemberWorks, Inc.,

483 F.3d 956, 965 (9th Cir. 2007). Here, the district court did

not dismiss all of Velazquez’s federal claims when it

dismissed his state law claims, as it sent Velazquez’s § 1983

excessive force claim to the jury. Nor did the district court

suggest that the dismissal was based on one of the other

reasons set forth in § 1367(c) — for example, that the state

law claims “raise[d] a novel or complex issue of State law”

or “substantially predominate[d] over the claim or claims

over which the district court has original jurisdiction.”

28 U.S.C. § 1367(c). Moreover, the district court gave no

reason to believe that the general considerations underlying

the supplemental jurisdiction doctrine — “judicial economy,

convenience, fairness, and comity” — counseled dismissal of

the state-law claims. Carnegie-Mellon Univ. v. Cohill,

484 U.S. 343, 350 n.7 (1988).

Rather, the district court’s sole explanation for the

dismissal was that instructing the jury on the § 1983 claims

while simultaneously instructing it on the state claims for

false arrest and assault and battery would be difficult or

misleading. But such claims are routinely combined in

district courts, and we are unaware of any case in which

38 VELAZQUEZ V. CITY OF LONG BEACH

prejudicial confusion resulted. See, e.g., Chaudhry v. City of

L.A., 751 F.3d 1096, 1102 (9th Cir. 2014) (reviewing jury

verdict on both § 1983 excessive force and state-law assault

claims); Mahach-Watkins v. Depee, 593 F.3d 1054, 1056

(9th Cir. 2010) (reviewing jury verdict on both § 1983

excessive force and state-law tort claims). Careful

instructions should be sufficient to highlight for the jury the

differences between the elements of the federal and the state

causes of action. “[J]uries are presumed to follow their

instructions.” Richardson v. Marsh, 481 U.S. 200, 211

(1987). In any case, the district court gave no reason for its

dismissal of Velazquez’s separate state law claims of

negligence and intentional infliction of emotional distress.

We therefore hold that the district court abused its

discretion in blanketly refusing to exercise supplemental

jurisdiction, and so reverse its dismissal of Velazquez’s state

law claims.

III. Conclusion

“Police officers have a difficult job, and they deserve the

respect of their community.” Mackinney, 69 F.3d at 1007.

At the same time, “[t]he freedom of individuals verbally to

oppose or challenge police action without thereby risking

arrest is one of the principal characteristics by which we

distinguish a free nation from a police state.” Hill, 482 U.S.

at 462–63. And plaintiffs in § 1983 cases challenging police

action, like other plaintiffs in civil cases in federal court, have

a constitutionally-based right to a jury verdict as long as they

present evidence on which a reasonable jury could decide in

their favor.

VELAZQUEZ V. CITY OF LONG BEACH 39

Velazquez was not accorded his right to such a verdict at

all on his unlawful arrest and Monell claims. And on the

excessive force claim, the jury’s verdict was fatally infected

by the trial judge’s ruling on the Rule 50(a) motion.

Accordingly, for the reasons set forth above, we reverse the

district court’s grant of judgment as a matter of law as to the

unlawful arrest and Monell claims, reverse the jury’s verdict

on the excessive force claim, reverse the district court’s

dismissal without prejudice of the state law claims, and

remand for a new trial.

Furthermore, we instruct the Chief Judge for the Central

District of California to reassign this case to a different

district judge on remand. Although the district judge may

have intended to afford Velazquez a fair trial, reassignment

is warranted here because the judge may “have substantial

difficulty in putting out of his . . . mind previously expressed

views or findings determined to be erroneous.” United States

v. Rivera, 682 F.3d 1223, 1237 (9th Cir. 2012) (internal

quotation marks omitted).

During the Rule 50 colloquy, for example, the district

judge frequently indicated that he disbelieved Velazquez and

his witnesses. He also stated to Velazquez’s counsel, as if the

practice of preparing witnesses were unusual or made the

testimony suspect, that “it appears that the witnesses were

prepared to answer those questions.” Furthermore, the record

reveals that, during trial, the district judge criticized and

rebuked Velazquez’s counsel numerous times — often for

exceedingly minor issues — while maintaining a more

40 VELAZQUEZ V. CITY OF LONG BEACH

permissive and accommodating approach toward defense

counsel.16

“Litigants are entitled to a fair trial and a perception that

the presiding judge does not possess a bias that will affect

rulings during trial.” Montiel v. City of Los Angeles, 2 F.3d

335, 344 (9th Cir. 1993). Reassignment is therefore

“advisable to preserve the appearance of justice.” Rivera,

682 F.3d at 1237.

REVERSED AND REMANDED.

16

For example, the district judge at several points during the trial

rebuked Velazquez’s lawyer for thanking him, stating “Mr. Zola, I don’t

have to be thanked for anything. I’m not here to do anybody on either side

any favors,” and “don’t thank me for anything I do. I do it because I am

required to do it under my oath.” The judge also criticized the lawyer for

saying “good afternoon.”