Blankerhorn v. City of Orange

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY BLANKENHORN, 

Plaintiff-Appellant,

v. No. 04-55938

CITY OF ORANGE; ANDY ROMERO;

DUNG NGUYEN; GARRETT ROSS;  D.C. No.

CV-02-01160-GLT

TAMARA SOUTH; GRAY, Sergeant;

OPINION

MONTANO, Officer; KAYANO,

Officer; ROMAN, Officer,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Gary L. Taylor, District Judge, Presiding

Argued and Submitted

March 6, 2006—Pasadena, California

Filed May 8, 2007

Before: M. Margaret McKeown and Marsha S. Berzon,

Circuit Judges, and Samuel P. King,* District Judge.

Opinion by Judge King;

Partial Concurrence and Partial Dissent by Judge Berzon

*The Honorable Samuel P. King, Senior United States District Judge

for the District of Hawaii, sitting by designation.

5187

BLANKENHORN v. CITY OF ORANGE 5193

COUNSEL

Paul L. Hoffman and Michael S. Morrison, Schonbrun DeSi-

mone Seplow Harris & Hoffman, Venice, California, for the

appellant.

M. Lois Boback, Woodruff, Spradlin & Smart, Orange, Cali-

fornia; and David A. De Berry, City Attorney, City of Orange,

Orange, California, for the appellees.

OPINION

KING, District Judge:

In July 2001, police officers from the City of Orange

(“City”) found Gary Blankenhorn (“Blankenhorn”) at a shop-

5194 BLANKENHORN v. CITY OF ORANGE

ping mall where, six months before, he had been evicted and

permanently banned from entering again. The officers

arrested Blankenhorn on suspicion of trespass, and he was

later charged with disturbing the peace, trespass, and three

counts of resisting arrest. The prosecutor also added a gang-

related enhancement charge. After Blankenhorn had spent

three months in jail, all charges were dropped and he was

released.

Blankenhorn then brought this civil rights suit against

Defendants under 42 U.S.C. § 1983 for unlawful arrest,

excessive force, and malicious prosecution; and under Cali-

fornia state law for false imprisonment, negligence, assault

and battery, and intentional infliction of emotional distress.

Blankenhorn alleges that the police officers did not have

probable cause to arrest him and that they used unreasonable

force during the arrest by gang-tackling him, punching him,

and using hobble restraints. He also seeks damages from the

City and Chief Andy Romero (“Romero”) on theories of

municipal and supervisorial liability.

The district court granted Defendants’ motion for summary

judgment on all of Blankenhorn’s causes of action, and

Blankenhorn timely appealed. We have jurisdiction under 28

U.S.C. § 1291. We affirm in part and reverse and remand in

part.

I.

On February 4, 2001, a security guard at The Block at

Orange (“The Block” or “mall”), a shopping mall, issued

Blankenhorn a “Notice Forbidding Trespass” and asked him

to leave the premises. The Notice stated: “You are hereby

notified that you are FORBIDDEN TO TRESPASS or enter

upon my lands or buildings thereof . . . Failure to comply with

this NOTICE shall result in your prosecution for TRESPASS-

ING.” Sergeant Jeff Gray (“Gray”) was at The Block when

Blankenhorn was ejected on February 4, 2001, but did not

BLANKENHORN v. CITY OF ORANGE 5195

actually see mall security issue the notice. Gray was, how-

ever, “aware that Gary Blankenhorn had been ejected from

The Block at that time and was provided notice that he was

not to return.”

Sometime around the first week of July 2001, Officer Gar-

ret Ross (“Ross”), heard a radio report of a gang fight at The

Block and, shortly afterward, saw Blankenhorn running from

the area. Ross stopped Blankenhorn, they sat down together,

and Ross asked Blankenhorn what he knew about the fight.

Ross found Blankenhorn “completely calm” and “coopera-

tive” throughout the interview.

About midnight on July 28, 2001, Gray saw Blankenhorn

in a crowd at The Block. He could not remember Blanken-

horn’s name but believed he had previously received a Notice

Forbidding Trespass. Gray asked Officer Dung Nguyen

(“Nguyen”) to help him locate Blankenhorn so they “could

talk to him, identify him and determine whether The Block

security wished to have him removed or take some other

action.” In Nguyen’s police report, Nguyen stated that Gray

told him that Blankenhorn is a “known 18th Street gang mem-

ber and had been banned from the Block facility in February

2001.” A short time later, Nguyen and Gray spotted Blanken-

horn, who was talking with Victor Garcia (“Garcia”) and Gar-

cia’s younger brother. A video1 taken by a mall security

camera shows that there was another young boy there as well.

1

A pole in the foreground of the video obstructs much of the encounter

between Blankenhorn and the officers. Furthermore, the video has no

audio. As a result, the video is of only limited assistance in determining

what happened during the encounter between Blankenhorn and the defen-

dant police officers. Not surprisingly, given these limitations, the parties

draw different inferences from the video regarding what actually occurred

during the incident. Because our review is of the district court’s grant of

summary judgment in favor of the Defendants, we draw all reasonable

inferences that can be drawn from the video in Blankenhorn’s favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (holding that

on summary judgment “the drawing of legitimate inferences from the facts

are jury functions, not those of a judge” and “all justifiable inferences”

must be drawn in favor of the non-movant).

5196 BLANKENHORN v. CITY OF ORANGE

The parties dispute certain incidents that occurred during

this initial encounter. In his police report, Nguyen claims that

he immediately told Blankenhorn he was being “detained for

trespassing.” In his declaration supporting the motion for

summary judgment, Nguyen claims he explained to Blanken-

horn that “he was being stopped so that we could determine

his identity and confirm with security whether or not he was

allowed at the location.” Nguyen also says in his police report

that, because Blankenhorn had a prior conviction for robbery

and was a known member of the 18th Street Gang, he asked

Blankenhorn if he was carrying any weapons.

Blankenhorn’s version of the initial encounter is quite dif-

ferent. He alleges that Nguyen, standing about fifteen feet

away, yelled for him to come over because he wanted to talk

to him. Blankenhorn asked why, but Nguyen did not respond.

Blankenhorn then said, “I’m having a conversation with a

friend, you rudely interrupt me, what’s wrong with you, you

don’t have any manners?” When Blankenhorn continued talk-

ing with Garcia, Nguyen simply stared at them. Finally,

Blankenhorn said, “What’s up? You want to talk to me[,]

come over here, talk to me, then.” Nguyen asked him what he

was doing. Blankenhorn said he was talking to a friend and

asked if Nguyen had any more questions. When Nguyen did

not respond, Blankenhorn tried to walk away. Nguyen then

got in front of him and put his hands out to prevent him from

leaving. Blankenhorn asked Nguyen why he could not leave,

but Nguyen again did not respond. When Blankenhorn tried

to walk around Nguyen, he grabbed Blankenhorn by the arm.

When Blankenhorn, by his own admission, “yanked out of

[Nguyen’s] grasp,” the officer threatened to spray him with

mace.

A security guard employed by The Block, Trevor Medlin

(“Medlin”), joined Nguyen and Gray shortly after the initial

stop. Although the parties’ statements do not make clear

exactly when he arrived, Medlin is already at the scene when

the video of the encounter begins. A short time after the video

BLANKENHORN v. CITY OF ORANGE 5197

begins, another officer, Detective Tamara South (“South”),

appears on the scene. South came in response to Gray’s

request for back-up.

The parties characterize Blankenhorn’s conduct before

being taken into custody somewhat differently. Gray, Nguyen,

and South described Blankenhorn as rude, uncooperative, and

verbally abusive during the initial encounter. Blankenhorn

admits he was “angry” and “loud,” that he used profanity, and

that, in frustration, he threw his driver’s license on the

ground. Both Nguyen’s and Ross’s police reports state that

Blankenhorn took a fighting stance and clenched his fists.

South’s report says Blankenhorn several times approached

Nguyen “in a threatening manner.” Blankenhorn denies this.

The video shows Blankenhorn gesture several times by rais-

ing his arms above his head and touching his chest. It also

shows him approach Nguyen and once point at him. But it

does not show Blankenhorn clench his fists. South also

claimed in her police report that during the stop Blankenhorn

yelled out he was a member of the 18th Street Gang. Blanken-

horn and Garcia deny Blankenhorn ever identified himself as

a gang member.

The parties also dispute how the officers made the arrest.

Nguyen’s declaration states that he asked Blankenhorn to

kneel down so he could handcuff him. Blankenhorn refused,

saying, “I’m not going to my f***ing knees.” Blankenhorn

alleges that, immediately after he said this, Nguyen, Ross,2

and South “all jumped on [him],” though all three officers and

Gray maintain that Nguyen first reached for Blankenhorn’s

left wrist to place him in handcuffs. The video shows the offi-

cers and Blankenhorn struggling for several seconds before

the officers finally take him to the ground. Blankenhorn was

2

The video shows that Ross arrived on the scene and stood behind

Blankenhorn just seconds before the officers attempted to take him into

custody. It is not clear from the video whether Ross heard Nguyen’s

request to kneel or Blankenhorn’s response.

5198 BLANKENHORN v. CITY OF ORANGE

handcuffed. Once this was accomplished, Gray ordered Ross

to secure his wrists and ankles with ripp-hobble restraints, and

Ross did so.3

Blankenhorn claims that, during the struggle, Nguyen

punched him several times, and another officer or officers

placed a knee behind his neck and pressed his face to the

ground. The video clearly shows Nguyen punch Blankenhorn

in the head and twice more in the side. Nguyen landed at least

one punch to Blankenhorn’s body after Blankenhorn was

already on the ground. Though Nguyen, South, and Ross fail

to mention the punches in their police reports, they all

reported that Blankenhorn resisted being handcuffed by

maneuvering his hands and arms under his body. Blankenhorn

denies he ever did this. It is not clear from the video whether

Blankenhorn so maneuvered.

Blankenhorn was charged by information on September 17,

2001, with one count of trespass, three counts of resisting

arrest, and one count of disturbing the peace. The trespass was

charged as a misdemeanor, but the resisting arrest and disturb-

ing the peace counts were charged as felonies due to a gang-

related enhancement.4 At the preliminary hearing, Nguyen

admitted that, though he did not mention it in his police

3

Officers Kayano (“Kayano”) and Montano (“Montano”) arrived during

the struggle. Upon seeing the other officers trying to tackle Blankenhorn,

Kayano ran over to the pile and grabbed and held Blankenhorn’s left arm

so it could be handcuffed. Though Kayano stated in his declaration that

he could not remember whether he or Nguyen actually placed the hand-

cuffs on Blankenhorn’s left wrist, Kayano was certain that the handcuffs

used were his own. Montano helped with crowd control. Officer Paul

Roman (“Roman”) arrived on the scene after Blankenhorn was already

subdued.

4

California law provided at the time of Blankenhorn’s arrest for the

imprisonment of “[a]ny person who is convicted of a public offense pun-

ishable as a felony or a misdemeanor, which is committed for the benefit

of, at the direction of or in association with, any criminal street gang with

the specific intent to promote, further, or assist in any criminal conduct by

gang members.” CAL. PEN. CODE § 186.22(d) (West 1999 & Supp. 2001).

BLANKENHORN v. CITY OF ORANGE 5199

reports, he punched Blankenhorn several times when making

the arrest. The deputy district attorney, Sonia Balleste

(“Balleste”), later decided to dismiss all charges against

Blankenhorn because she believed Nguyen’s admission at the

preliminary hearing would damage his credibility as a witness

and “cause enough of a concern in a jury’s mind to raise a

reasonable doubt.” By that time, however, Blankenhorn had

already spent three months in jail.

II.

A grant of summary judgment is reviewed de novo. Olsen

v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).

Likewise, a grant of summary judgment on the ground of

qualified immunity is also reviewed de novo. Martinez v.

Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003).

We may not affirm a grant of summary judgment if there

is any genuine issue of material fact or the district court incor-

rectly applied the substantive law. See Olsen, 363 F.3d at 922.

Because “[c]redibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the

facts are jury functions, not those of a judge,” when reviewing

a grant of summary judgment, “[t]he evidence of the non-

movant is to be believed, and all justifiable inferences are to

be drawn in his favor.” Anderson, 477 U.S. at 255. “[I]f a

rational trier of fact might resolve the issue in favor of the

nonmoving party, summary judgment must be denied.” T.W.

Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

626, 631 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

III.

A. Blankenhorn’s Causes of Action Under § 1983.

1. Unlawful Arrest.

Blankenhorn claims that his arrest violated his Fourth

Amendment rights. A warrantless arrest of an individual in a

5200 BLANKENHORN v. CITY OF ORANGE

public place for a crime committed in an officer’s presence

violates the Fourth Amendment if the arrest is not supported

by probable cause. See, e.g., Atwater v. City of Lago Vista,

532 U.S. 318, 354 (2001). Defendants seek qualified immu-

nity from this claim.

“Qualified immunity is ‘an entitlement not to stand trial or

face the other burdens of litigation.’ ” Saucier v. Katz, 533

U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S.

511, 526 (1985)). Defendants are entitled to such relief only

if the facts alleged and evidence submitted, resolved in

Blankenhorn’s favor and viewed in the light most favorable

to him, show that their conduct did not violate a federal right;

or, if it did, the scope of that right was not clearly established

at the time. See, e.g., Beier v. City of Lewiston, 354 F.3d

1058, 1064 (9th Cir. 2004).

Absent unusual circumstances, the analysis proceeds by

first concentrating on whether there was a constitutional vio-

lation. Even if it might be easier analytically to address

whether the scope of the right was “clearly established,” we

are to decide the constitutional question first. See Motley v.

Parks, 432 F.3d 1072, 1077-78 (9th Cir. 2005) (en banc); see

also Meyers v. Redwood City, 400 F.3d 765, 770 (9th Cir.

2005).

Thus, we first address whether Defendants violated

Blankenhorn’s Fourth Amendment Rights. If no violation is

found, Blankenhorn cannot prevail. On the other hand, if there

is a violation (or if there is a triable question of fact in that

regard), then we must determine whether that constitutional

violation was clearly established at the time. “Finally, even if

the violated right was clearly established, the Saucier court

recognized that it may be difficult for a police officer fully to

appreciate how the legal constraints apply to the specific situ-

ation he or she faces. Under such a circumstance, ‘[i]f the

officer’s mistake as to what the law requires is reasonable, . . .

the officer is entitled to the immunity defense.’ ” Motley, 432

BLANKENHORN v. CITY OF ORANGE 5201

F.3d at 1077 (quoting Saucier, 533 U.S. at 205) (alteration in

original).

a. Officers had Probable Cause to Arrest.

[1] “A police officer may make a warrantless arrest when

the ‘officer has probable cause to believe that the person to be

arrested has committed a felony, whether or not a felony, in

fact, has been committed.’ ” Peng v. Mei Chin Penghu, 335

F.3d 970, 976 (9th Cir. 2003) (quoting Cal. Penal Code

§ 836(a)(3) (West 2003)). In California, “an officer has proba-

ble cause for a warrantless arrest ‘if the facts known to him

would lead a [person] of ordinary care and prudence to

believe and conscientiously entertain an honest and strong

suspicion that the person is guilty of a crime.’ ” Id. (citing

People v. Adams, 221 Cal. Rptr. 298, 301 (Cal. Ct. App.

1985)). Federal standards are consistent: “The test for whether

probable cause exists is whether ‘at the moment of arrest the

facts and circumstances within the knowledge of the arresting

officers and of which they had reasonably trustworthy infor-

mation were sufficient to warrant a prudent [person] in believ-

ing that the petitioner had committed or was committing an

offense.’ ” United States v. Jensen, 425 F.3d 698, 704 (9th

Cir. 2005) (citation omitted), cert. denied, 126 S. Ct. 1664

(2006).

[2] “Probable cause exists when, under the totality of the

circumstances known to the arresting officers (or within the

knowledge of the other officers at the scene), a prudent person

would believe the suspect had committed a crime.” Dubner v.

City & County of San Francisco, 266 F.3d 959, 966 (9th Cir.

2001) (citation omitted). “When there has been communica-

tions among [officers], probable cause can rest upon the

investigating [officers’] ‘collective knowledge.’ ” United

States v. Del Vizo, 918 F.2d 821, 826 (9th Cir. 1990) (citation

omitted).

“Because probable cause must be evaluated from the per-

spective of ‘prudent [people], not legal technicians,’ an officer

5202 BLANKENHORN v. CITY OF ORANGE

need not have probable cause for every element of the

offense. However, when specific intent is a required element

of the offense, the arresting officer must have probable cause

for that element in order to reasonably believe that a crime

has occurred.” Gasho v. United States, 39 F.3d 1420, 1428

(9th Cir. 1994) (citations omitted).

We focus on trespassing. Although Blankenhorn was also

arrested for resisting arrest under California Penal Code sec-

tion 148(a), any such resistence (and corresponding probable

cause) arose out of the initial arrest for trespassing. If there

was no probable cause to arrest Blankenhorn for trespassing

in the first place, it makes no difference for present purposes

if he resisted arrest. See Arpin v. Santa Clara Valley Transp.

Agency, 261 F.3d 912, 920 (9th Cir. 2001) (“If the officers

could not lawfully arrest [a person] for battery, the officers

could also not lawfully arrest [the person] for resisting

arrest.”) (citing In Re. Manuel G., 941 P.2d 880, 885 (Cal.

1997)); see also People v. Simons, 50 Cal. Rptr. 2d 351, 355

(Cal. Ct. App. 1996) (“Defendant cannot be convicted of an

offense against an officer engaged in the performance of offi-

cial duties unless the officer was acting lawfully at the time.

‘The rule flows from the premise that because an officer has

no duty to take illegal action, he or she is not engaged in

‘duties,’ for purposes of an offense defined in such terms, if

the officer’s conduct is unlawful.’ ”) (quoting People v. Gon-

zalez, 800 P.2d 1159, 1176 (Cal. 1990) (internal citation omit-

ted)).

Blankenhorn was forbidden from entering The Block. To

reiterate, he was issued a “Notice Forbidding Trespass” stat-

ing: “You are hereby notified that you are FORBIDDEN TO

TRESPASS or enter upon my lands or buildings thereof . . .

Failure to comply with this NOTICE shall result in your pros-

ecution for TRESPASSING.” He knew he was banned by The

Block. Officer Gray saw Blankenhorn and knew or thought he

had previously been banned by the owner. Gray (and other

officers) knew Blankenhorn was somehow associated with the

BLANKENHORN v. CITY OF ORANGE 5203

“18th Street” gang.5 Gray and Nguyen then stopped Blanken-

horn, sought identification to confirm whether or not he had

previously been banned, and events escalated. Officers were

seeking an indication from The Block’s management or secur-

ity as to whether The Block wanted him removed, or had

actually been told by security that The Block wanted him

arrested for trespassing. And security guard Medlin did issue

(although immediately after the incident) a written citizen’s

arrest statement form indicating Blankenhorn was trespassing

and demanding officers “receive custody of [Blankenhorn]

pursuant to Penal Code Sections 847, 849 and 142.”6

Given those facts, Defendants had probable cause to

believe Blankenhorn was trespassing and that The Block

would want to prosecute or have him removed. Defendants

(Gray and Nguyen in particular) could have “conscientiously

entertain[ed] an honest and strong suspicion that [Blanken-

horn] [was] guilty of a crime.” Peng, 335 F.3d at 967. That

is, “under the totality of the circumstances known to the

arresting officers (or within the knowledge of the other offi-

cers at the scene), a prudent person would believe” Blanken-

horn was trespassing.” Dubner, 266 F.3d at 966.

Blankenhorn was arrested for a suspected violation of Cali-

fornia Penal Code section 602(j)7 [now section 602(k)] but

5

Blankenhorn does not deny he was, at least at some point, a gang mem-

ber; he testified that he “repeatedly told [police] ‘[a]t one point in time I

was [a gang member]. [But] I’m not doing that no more.’ ” There is no

disputed evidence to contradict various officers’ declarations and testi-

mony that Blankenhorn was known to officers to be (or have been) a gang

member on July 28, 2001, when he was arrested. (Officer South indicated

that she heard Blankenhorn yell in a loud voice at Nguyen and Gray on

July 28, 2001, that he was an “18th Street” gang member; Blankenhorn

and another witness, however, denies that he said that at the time.)

6

Other evidence in the record indicates that Blankenhorn had been dis-

ruptive earlier in the evening and had been ejected from a restaurant at

The Block. There is no indication, however, that officers knew about this

incident before or at the time of the arrest.

7

When Blankenhorn was arrested, section 602(j) made it a misdemeanor

trespass to “[e]nter[ ] any lands, whether unenclosed or enclosed by fence,

5204 BLANKENHORN v. CITY OF ORANGE

ultimately charged with violating section 602(n) [now section

602(o)].8 It doesn’t matter for present purposes if he was

charged with a different crime than that for which he was

arrested. “[P]robable cause may exist for an arrest ‘for a

closely related offense, even if that offense was not invoked

by the arresting officer, as long as it involves the same con-

duct for which the suspect was arrested.’ ” Bingham v. City of

Manhattan Beach, 341 F.3d 939, 950 (9th Cir. 2003) (citation

omitted). “As long as the officers had some reasonable basis

to believe [Blankenhorn] had committed a crime, the arrest is

justified as being [ ] based on probable cause. Probable cause

need only exist as to any offense that could be charged under

the circumstances.” Id. at 952 (quoting Barna v. City of Perth

Amboy, 42 F.3d 809, 819 (3d Cir. 1994)).

[3] Under then-section 602(j), reasonable officers could

have concluded that Blankenhorn — known to be (or have

been) a gang member who had previously been banned a few

for the purpose of injuring any property or property rights or with the

intention of interfering with, obstructing, or injuring any lawful business

or occupation carried on by the owner of the land, the owner’s agent or

by the person in lawful possession.” CAL. PEN. CODE § 602(j) (West 1999

& Supp. 2001).

8

When Blankenhorn was arrested, in relevant part section 602(n) made

the following action a misdemeanor trespass:

Refusing or failing to leave land, real property, or structures

belonging to or lawfully occupied by another and not open to the

general public, upon being requested to leave by (1) a peace offi-

cer at the request of the owner, the owner’s agent, or the person

in lawful possession, and upon being informed by the peace offi-

cer that he or she is acting at the request of the owner, the

owner’s agent, or the person in lawful possession, or (2) the

owner, the owner’s agent, or the person in lawful possession. The

owner, the owner’s agent, or the person in lawful possession shall

make a separate request to the peace officer on each occasion

when the peace officer’s assistance in dealing with a trespass is

requested.

CAL. PEN. CODE § 602(n) (West 1999 & Supp. 2001).

BLANKENHORN v. CITY OF ORANGE 5205

months earlier — could have returned either “for the purpose

of injuring any property or property rights” or “with the inten-

tion of interfering with, obstructing, or injuring any lawful

business.” Reasonable officers could have thought that

Blankenhorn, knowing he had been banned a few months ear-

lier, could have intended that his presence would constitute

“injury to property rights” or “interference” with The Block’s

business.

[4] Alternatively, a reasonable officer could conclude that

Blankenhorn’s conduct satisfied the elements under section

602(n). His return to The Block constituted a “[r]efus[al] or

fail[ure] to leave” after being issued the Notice Forbidding

Trespass. While a shopping center, under California law, is

generally “open to the public,” the Notice Forbidding Tres-

pass arguably rendered The Block “not open to the public”

with respect to Blankenhorn. Cf. Picray v. Sealock, 138 F.3d

767, 772 (9th Cir. 1998) (discussing a similar requirement in

an Oregon trespassing statute and recognizing that “premises

are not considered ‘open to the public’ with regard to a partic-

ular individual when that person previously has been barred

from the property.”). And the Notice Forbidding Trespass

issued to Blankenhorn could constitute at least part of a “re-

quest to leave” under section 602(n).

Section 602(n) requires a “separate request to the peace

officer [by the owner] on each occasion when the peace offi-

cer’s assistance in dealing with a trespass is requested” and

the undisputed facts indicate Defendants gave The Block a

chance to fulfill this requirement and that it was fulfilled.

Nguyen declared that “I tried to explain to Blankenhorn that

he was being stopped so that we could determine his identity

and confirm with security whether or not he was allowed at

the location . . . . Block security confirmed that Mr. Blanken-

horn had previously been banned from the Block and that they

wished to place him under arrest for trespassing.” Similarly,

Gray indicated that they were determining “whether Block

security wished to have [Blankenhorn] removed or take some

5206 BLANKENHORN v. CITY OF ORANGE

other action” and that “security further confirmed that they

wished to place Mr. Blankenhorn under arrest for trespassing.

. . . Block security then advised Mr. Blankenhorn that he was

under arrest for trespassing.”

As it turns out, upon close parsing of the statutory language

and California case law, it appears an actual conviction for

trespass might have been difficult without additional evi-

dence. The California Penal Code does not define “injury to

property” nor “interfer[ence] with” any lawful business as

those terms are used in section 602(j). Rather, section 602(j)

is to be interpreted “according to its general usage.” People

v. Harris, 12 Cal. Rptr. 916, 919 n.4 (Cal. Ct. App. 1961). In

a criminal context under California law, “[t]he word ‘inter-

fere’ is a word of ‘well recognized, defined meaning.’ . . . It

imports to ‘disarrange,’ ‘disturb,’ or ‘hinder.’ ” People v.

Agnello, 66 Cal. Rptr. 571, 574 (Cal. Ct. App. 1968) (citations

omitted). A fact-finder could certainly infer that Blankenhorn

was at The Block deliberately and that he knew his presence

was not welcome. But it might be more difficult to prove such

a deliberate presence was intended to “injure property rights”

or “interfere” with its business. Compare In re Ball, 100 Cal.

Rptr. 189, 193 (Cal. Ct. App. 1972) (concluding that the req-

uisite intent under section 602(j) could be inferred from the

defendant “deliberately entering [a Disneyland] parking lot

and engaging in the conduct disclosed after having requested

and been denied permission to do so and from his refusal to

leave when asked to do so.”) (emphases added).9

9

Blankenhorn’s reliance upon In re Wallace, 475 P.2d 208 (Cal. 1970)

(In Bank), for the proposition that criminal intent cannot be inferred

merely from Blankenhorn’s return to The Block is misplaced. In that case,

three protesters were asked by a deputy sheriff to leave a county fair but

returned two hours later to resume their leafletting. Id. at 212. When asked

a second time to leave, the protesters refused and were arrested for tres-

passing. Id. The only evidence that the protesters had been obstructing

business at the fair was the deputy sheriff’s testimony that he informed

them they would be arrested “if they did not cease their obstruction of the

pathway.” Id. The court held that the officer’s testimony “establishe[d]

BLANKENHORN v. CITY OF ORANGE 5207

Likewise, actually convicting under section 602(n) might

have been difficult. It is undisputed that Blankenhorn was not

asked to leave the premises on that night (i.e., other than the

Notice Forbidding Trespass issued in February of 2001).

Although the statute does require a “request to leave,” it does

not specifically provide that the request must be contempora-

neous. (The statute specifically requires a “separate request to

the peace officer on each occasion when the peace officer’s

request in dealing with a trespass is required,” but the statute

does not provide that a specific request is required “on each

occasion” to the accused trespasser.) But a version of the stat-

ute has been interpreted to require “dual requests to leave, one

from a peace officer, the other from the property possessor.”

People v. Medrano, 144 Cal. Rptr. 217, 227 (Cal. Ct. App.

1978), disapproved of on other grounds, Vista Verde Farms

v. Agricultural Relations Bd., 625 P.2d 263 (Cal. 1981). In

any event, Defendants appear to concede that Blankenhorn

should have been asked to leave that night before he could be

convicted under 602(n).

Ultimately, however, our inquiry is not whether Blanken-

horn was trespassing. Rather, it is whether a reasonable offi-

only the content of his admonition to [the protesters], not the fact of actual

obstruction.” Id. Finding that the protesters “were not in fact arrested

because of any physical ‘obstruction’ they may have caused, but simply

because they insisted on their lawful right to distribute leaflets,” the court

overturned the conviction. Id. Thus, In re Wallace does not stand for the

proposition that criminal intent sufficient to support probable cause for a

trespass arrest cannot be inferred from the arrestee’s return to property

after previously being told to stay away. Rather, it holds that a conviction

under § 602(j) without evidence of actual interference or obstruction is

invalid.

Unlike in In re Wallace, there is undisputed evidence of possible inter-

ference in Blankenhorn’s case. There’s no indication Blankenhorn was

distributing leaflets or the like. Blankenhorn had been banned and Medlin

was required to leave his duties at the security station to find Blankenhorn

and, once again, usher him off the premises. Whether these facts alone

would suffice to convict under § 602(j), they would justify a reasonable

officer in believing that Blankenhorn was trespassing.

5208 BLANKENHORN v. CITY OF ORANGE

cer had probable cause to think he could have been. See, e.g.,

Anderson v. Creighton, 483 U.S. 635, 641 (1987); Peng, 335

F.3d at 976 (“A police officer may make a warrantless arrest

when the ‘officer has probable cause to believe that the person

to be arrested has committed a felony, whether or not a fel-

ony, in fact, has been committed.’ ”) (citation omitted); cf.

Tobias v. County of Putnam, 191 F. Supp. 2d 364, 374

(S.D.N.Y. 2002) (“Whether or not the criminal trespassing

charge would have led to an indictment or a conviction is of

no moment. It is sufficient for the officer defendants to show

that they had arguable probable cause to believe that [the sec-

tion 1983 plaintiff] was committing a trespass.”).

[5] As we have discussed, given (1) the prior “Notice For-

bidding Trespass” and other facts known to the officers, and

(2) The Block security’s request that police place Blanken-

horn under arrest, it was reasonable for officers to believe

they had probable cause to arrest Blankenhorn for trespassing.

b. The Law Was Not Clearly Established.

Moreover, even absent probable cause (or if there were a

factual issue as to whether probable cause existed), Defen-

dants are entitled to qualified immunity under the second part

of the Saucier analysis. Because probable cause is a complex

question here, it is appropriate to proceed past the threshold

question. See Meyers, 400 F.3d at 770 (“Although we con-

clude that the Defendants did not violate the constitutional

rights of the Plaintiffs, given the complexity of the question,

we address the easier question of qualified immunity as

well.”).

[6] “[E]ven absent probable cause, qualified immunity is

available if a reasonable police officer could have believed

that his or her conduct was lawful, in light of the clearly

established law and the information the searching officers

possessed.” Peng, 335 F.3d at 980. “Whether a right is

‘clearly established’ for purposes of qualified immunity is an

BLANKENHORN v. CITY OF ORANGE 5209

inquiry that ‘must be undertaken in light of the specific con-

text of the case, not as a broad general proposition.’ In other

words, ‘[t]he contours of the right must be sufficiently clear

that a reasonable official would understand that what he is

doing violates that right.’ ” Graves v. City of Coeur d’Alene,

339 F.3d 828, 846 (9th Cir. 2003) (quoting Saucier, 533 U.S.

at 201-02) (other citation omitted).

[7] Thus, while it was clearly established long ago that an

officer may not conduct a warrantless arrest absent probable

cause, our analysis must be more focused. Applied to the Cal-

ifornia trespassing statutes, as explained earlier, there is no

statutory definition of “injury to property” or “interfer[ence]”

with a lawful business under section 602(j). Nor does Califor-

nia case law make clear that returning to property after having

been permanently banned cannot constitute an “injury” to

property or “interference with” (or be a “disturbance”10), espe-

cially where a property owner specifically requests police to

arrest a person.

[8] Similarly, there is no California case law specifically

holding that a previous, relatively-recent, banishment from

private property cannot serve as a requisite “request to leave”

under section 602(n). What little case law there is interpreting

similar issues has emerged from First Amendment or union-

organizing contexts. See, e.g., In re. Ball, 100 Cal. Rptr. at

189 (upholding conviction under 602(j) where defendant was,

among other things, blocking access while seeking signatures

on an antipollution initiative); Medrano, 144 Cal. Rptr. at

224-25 (discussing balancing of free speech demands by out-

siders or physical access to audiences within private prop-

erty); Hamburg v. Wal-Mart Stores, Inc., 10 Cal. Rptr. 3d 568

(Cal. Ct. App. 2004) (finding question of fact as to whether

protesters were intentionally interfering with a business for

10

See Agnello, 66 Cal. Rptr. at 574 (“The word ‘interfere’. . . imports

to ‘disarrange,’ ‘disturb,’ or ‘hinder.’ ”).

5210 BLANKENHORN v. CITY OF ORANGE

actions in picketing and collecting signatures for a voter ini-

tiative at business premises).

[9] Even if a trespassing conviction ultimately might have

been difficult, there was no clearly established law indicating

that Blankenhorn could not have been trespassing under pres-

ent circumstances. Accordingly, even if there were no proba-

ble cause (or there were a triable question of fact), the

Defendants would still be entitled to qualified immunity. The

“contours” of Blankenhorn’s Fourth Amendment right to be

free of unreasonable seizures were not clearly established so

as to encompass the trespassing charges at issue under present

circumstances. See Saucier, 533 U.S. at 201.

2. Excessive Force.

Blankenhorn claims the arresting officers used excessive

force in violation of his Fourth Amendment rights. Defen-

dants claim qualified immunity from this cause of action.

Although we hold that Defendants were entitled to sum-

mary judgment as to Blankenhorn’s unlawful arrest claim, we

are still required to determine whether, under the circum-

stances, the arresting officers used an unreasonable amount of

force when taking Blankenhorn into custody. See Beier, 354

F.3d at 1064 (“Because 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.”); see also Arpin, 261 F.3d at 921-22

(use of force may be reasonable even in the absence of proba-

ble cause).

a. Violation of Blankenhorn’s Constitutional Rights.

[10] The Fourth Amendment requires police officers mak-

ing an arrest to use only an amount of force that is objectively

reasonable in light of the circumstances facing them. Tennes-

see v. Garner, 471 U.S. 1, 7-8 (1985). Neither tackling nor

BLANKENHORN v. CITY OF ORANGE 5211

punching a suspect to make an arrest necessarily constitutes

excessive force. Graham v. Connor, 490 U.S. 386, 396 (1989)

(“ ‘Not every push or shove, even if it may seem unnecessary

in the peace of the judge’s chambers,’ . . . violates the Fourth

Amendment”) (quoting Johnson v. Glick, 481 F.2d 1028,

1033 (2d Cir. 1973)). But “even where some force is justified,

the amount actually used may be excessive.” Santos v. Gates,

287 F.3d 846, 853 (9th Cir. 2002). The question in all cases

is whether the use of force was “objectively reasonable in

light of the facts and circumstances confronting” the arresting

officers. Graham, 490 U.S. at 397 (internal quotation marks

omitted).

To determine whether a specific use of force was reason-

able, we must balance “the nature and quality of the intrusion

on the individual’s Fourth Amendment interests against the

countervailing government interests at stake.” Id. at 396

(internal quotation marks omitted). Relevant factors to this

inquiry include, but are not limited to, “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.” Id.; see also Forrester v. City of San Diego, 25 F.3d

804, 806 n.2 (9th Cir. 1994). When appropriate, our reason-

ableness determination must also 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 396-97.

The parties dispute some facts necessary to decide the issue

of qualified immunity on excessive force. For example,

Defendants allege that Blankenhorn yelled out before his

arrest that he was a member of the 18th Street Gang, but

Blankenhorn denies this. Also, Nguyen claims that Blanken-

horn resisted being handcuffed by pinning his arms beneath

his body. Blankenhorn denies he did this or that he in any

other way resisted being handcuffed. Where such disputes

5212 BLANKENHORN v. CITY OF ORANGE

exist, summary judgment is appropriate only if Defendants

are entitled to qualified immunity on the facts as alleged by

the non-moving party. Barlow v. Ground, 943 F.2d 1132,

1136 (9th Cir. 1991). We must therefore make our excessive

force determination by viewing the disputed facts in favor of

Blankenhorn.

Six months before the arrest, mall security issued Blanken-

horn a Notice Forbidding Trespass. Three weeks before the

arrest, Officer Ross stopped Blankenhorn after spotting him

near the scene of an alleged gang fight at The Block.

Throughout the stop, Blankenhorn remained calm, and, when

asked, willingly provided Ross with information about the

gang fight. The night of his arrest, Blankenhorn was sus-

pected of having committed a misdemeanor trespass. When

Nguyen and Gray stopped him, he was talking with an adult

friend and was accompanied by two young boys. Nguyen

asked Blankenhorn what he was doing at the mall, and

Blankenhorn responded that he was talking with some friends.

At some point, Nguyen grabbed his arm and, when Blanken-

horn pulled free, threatened to spray him with mace. Blanken-

horn threw his driver’s license on the ground, but he did not

take a combative stance, clench his fists, or otherwise make

threatening gestures. When Nguyen asked him to kneel down

so he could be handcuffed, Blankenhorn refused. Almost

immediately, Nguyen, Ross, and South gang-tackled him.

Nguyen did not try to handcuff Blankenhorn before the three

officers tackled him. Blankenhorn struggled for several

moments before the officers brought him to the ground. Once

on the ground, however, Blankenhorn did not attempt to pre-

vent the officers from handcuffing him. Even so, Nguyen

punched him several times, and an officer or officers pushed

his face into the pavement by shoving a knee into the back of

his neck. Once Blankenhorn was subdued, the officers placed

hobble restraints on his ankles, which made it difficult for

Blankenhorn to move and breathe.

If Blankenhorn can prove the events as set forth above,

some or all of the Defendants would probably be liable for

BLANKENHORN v. CITY OF ORANGE 5213

excessive force, both in their “gang tackling,” use of hobble

restraints, and in Nguyen’s punching of Blankenhorn. That is,

there are genuine issues of material fact.

(1) Gang Tackle.

[11] A rational jury could find that the use of a gang tackle

by Nguyen, Ross, and South under these circumstances was

unreasonable. First, the severity of the alleged crime, misde-

meanor trespass, was minimal, when the only bases for sus-

pecting that Blankenhorn was interfering with mall business

were his presence at the mall, his previous banishment, his

known gang association, and the attention by security that his

presence required. Second, a rational jury could conclude

from Blankenhorn’s cooperative behavior with Ross just three

weeks before his arrest, the fact that Nguyen and Gray discov-

ered him talking casually with a friend, and the video footage

of Blankenhorn’s behavior during the detention, that Blanken-

horn did not pose a serious threat to the officers’ or others’

safety. The officers’ conduct during Blankenhorn’s detention

as captured on the video — e.g., Nguyen’s standing for long

periods of time with his arms folded, South’s permitting Gar-

cia to speak with Blankenhorn, the officers’ failure to prevent

other mall patrons from walking within a few feet of the scene

— could reasonably support this conclusion. Furthermore, the

pace of events could reasonably lead to the conclusion that the

latitude Graham requires for split-second police judgments in

“tense, uncertain, or rapidly evolving” situations was not war-

ranted here. See Graham, 490 U.S. at 397. Finally, though

Blankenhorn verbally refused to comply with Nguyen’s

request to kneel down, a reasonable jury could conclude from

his testimony and the video that Nguyen never tried to hand-

cuff Blankenhorn, and Blankenhorn did not actively resist

being handcuffed, before Nguyen, Ross, and South gang-

tackled him.

[12] Because a rational jury — drawing all reasonable

inferences from the facts alleged — could conclude the gang

5214 BLANKENHORN v. CITY OF ORANGE

tackle was unreasonable under the circumstances, under Sau-

cier, the officers’ conduct violated Blankenhorn’s Fourth

Amendment rights.

(2) Hobble Restraints.

The video of Blankenhorn’s arrest shows that Blankenhorn

did not initially submit to the officers’ attempts to arrest him.

Rather, he struggled with them for several seconds before

being tackled to the ground, where the officers eventually

gained control over him. Defendants argue that Blankenhorn’s

resistance could have led a prudent officer to conclude that he

might pose an increased risk of danger to others and that the

use of hobble restraints was therefore justified as a matter of

law. We disagree.

[13] In assessing the reasonableness of the defendant offi-

cers’ use of hobble restraints after taking custody of Blanken-

horn, we must balance competing concerns. On the one hand,

the Fourth Amendment permits police officers to use some

force to overcome resistance to being arrested. See Graham,

490 U.S. at 396. We agree with our sister circuit that, in some

situations, the need to maintain control of a person who physi-

cally struggled while being taken into custody might reason-

ably call for the use of hobble restraints. See, e.g., Mayard v.

Hopwood, 105 F.3d 1226, 1227-28 (8th Cir. 1997). On the

other hand, a person has the “limited right to offer reasonable

resistance to an arrest that is the product of an officer’s per-

sonal frolic. That right is not triggered by the absence of prob-

able cause, but rather by the officer’s bad faith or provocative

conduct.” United States v. Span, 970 F.2d 573, 580 (9th Cir.

1992) (citation omitted); see also Arpin, 261 F.3d at 921.

Thus, we must ask whether a reasonable jury could conclude,

viewing the evidence in the light most favorable to Blanken-

horn, that the Defendant officers acted in bad faith or engaged

in “provocative” conduct when arresting him. If so, and

Blankenhorn’s resistance was reasonable, a constitutional vio-

lation occurred.

BLANKENHORN v. CITY OF ORANGE 5215

[14] Span supports the conclusion that the officers acted in

bad faith. Span held that it was not reversible error in a trial

for assault on a federal officer under 18 U.S.C. § 111 to

instruct the jury that a United States Marshal “who is . . . try-

ing to arrest a person is engaged in his official duties.” Span,

970 F.2d at 580-81. Span claimed this instruction foreclosed

her defense that she had the right to resist the use of excessive

force because it was essentially a directed verdict on the issue

of good faith. Id. at 581. There was no error, and Span’s

defense was not foreclosed, because “[a]n officer who uses

excessive force is not acting in good faith.” Id. Under Span,

then, our earlier holding that a reasonable jury could find the

defendant arresting officers used excessive force in gang-

tackling Blankenhorn precludes a finding as a matter of law

that those same officers acted in good faith.

[15] We also conclude that the officers’ precipitate actions

in making the arrest could reasonably be considered “provoc-

ative.” According to Blankenhorn, the arresting officers gave

no warning that they were going to arrest him before gang-

tackling him and later applying hobble restraints. Indeed, as

the video shows, Nguyen did not even attempt to handcuff

Blankenhorn before he, Ross, and South — as if by predeter-

mined signal — simultaneously took hold of and wrestled him

to the ground. The lack of forewarning, the swiftness, and the

violence with which the defendant officers threw themselves

upon Blankenhorn could reasonably be considered “provoca-

tive,” triggering Blankenhorn’s limited right to reasonable

resistance and thus making their later use of the hobble

restraints unreasonable.

As for whether Blankenhorn’s resistance was itself reason-

able under the circumstances, the video appears to show that

he tried to stay on his feet while three officers wrestled with

him and, in Nguyen’s case, punched him several times.

Defendants do not allege, and the video does not show, that

Blankenhorn struck out at any of the officers or mall patrons.

Considering the rapidity of the officers’ actions and the

5216 BLANKENHORN v. CITY OF ORANGE

restrained nature of Blankenhorn’s own response, a jury could

conclude Blankenhorn’s resistance was reasonable under the

circumstances.

[16] Since a reasonable jury could conclude that Nguyen,

Ross, and South acted in a provocative manner and in bad

faith, and that Blankenhorn’s resistance was reasonable under

the circumstances, the arresting officers are not entitled to

summary judgment on Blankenhorn’s claim that the use of

hobble restraints was excessive under the circumstances.

(3) Punches.

Although Blankenhorn initially resisted being arrested,

Nguyen’s punches were not necessarily a reasonable

response. 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.’ ” Liston

v. County of Riverside, 120 F.3d 965, 976 (9th Cir. 1997)

(quoting Alexander v. City & County of San Francisco, 29

F.3d 1355, 1367 (9th Cir. 1994)); see also Headwaters Forest

Def. v. County of Humboldt, 276 F.3d 1125, 1130 (9th Cir.

2002) (“Because the officers had control over the protesters[,]

it would have been clear to any reasonable officer that it was

unnecessary to use pepper spray to bring them under con-

trol[.]”).

[17] At the preliminary hearing, Nguyen said he punched

Blankenhorn several times during the arrest because he “was

trying to get Mr. Blankenhorn’s arms out from underneath

him and secure the handcuffs.” Nguyen further testified that

such punches are “utilized at times to distract an individual so

that his muscles relax momentarily and then you are able to

take control.” But Blankenhorn claims he never pinned his

arms underneath his body. (The video does not clearly show

whether he did so or not.) Crediting Blankenhorn’s version of

the events, as we must at a summary-judgment stage, we con-

BLANKENHORN v. CITY OF ORANGE 5217

clude that a rational jury could find that if Blankenhorn did

not maneuver his arms beneath his body it eliminated the need

for any use of force to release them, and thus that Nguyen’s

punches were not reasonably justified by the circumstances as

he claims.11

b. The Federal Rights Were Clearly Established.

“[I]f a violation could be made out on a favorable view of

the parties’ submissions, the next, sequential step is to ask

whether the right was clearly established” at the time of the

arrest. Saucier, 533 U.S. at 201. Saucier’s requirement that

the plaintiff’s asserted right be clearly established “does not

mean that the very action at issue must have been held unlaw-

ful before qualified immunity is shed.” Wall v. County of

Orange, 364 F.3d 1107, 1111 (9th Cir. 2004). On the con-

trary, police officers “can still be on notice that their conduct

violates established law even in novel factual circumstances.”

Hope v. Pelzer, 536 U.S. 730, 741 (2002). While no prior

Supreme Court or circuit case presents facts that are “funda-

mentally similar” or “materially similar” to those presented

here, the salient question is still whether, at the time of the

encounter with Blankenhorn, “the state of the law . . . gave

[defendants] fair warning that their alleged treatment of [him]

was unconstitutional.” Id.; see also Boyd v. Benton County,

374 F.3d 773, 781 (9th Cir. 2004) (“In excessive force cases,

the inquiry remains whether, ‘under the circumstances, a rea-

sonable officer would have had fair notice that the force

employed was unlawful, and [whether] any mistake to the

contrary would have been unreasonable.’ ”) (alteration in

11

Cf. Arpin, 261 F.3d at 921-22 (affirming grant of summary judgment

for officer on claim of excessive force in making arrest without probable

cause where the officer warned plaintiff, who was denied access to a city

bus when she failed to provide proper identification, that she would be

arrested if she did not cooperate by showing her transit identification; the

plaintiff refused; when officer attempted to make the arrest, plaintiff stiff-

ened her arms and pulled free from the his grasp; and the officer twisted

plaintiff’s arm behind her and applied handcuffs).

5218 BLANKENHORN v. CITY OF ORANGE

original) (quoting Drummond v. City of Anaheim, 343 F.3d

1052, 1060 (9th Cir. 2003)).

[18] In assessing the state of the law at the time of Blanken-

horn’s arrest, we need look no further than Graham’s holding

that force is only justified when there is a need for force. We

conclude that this clear principle would have put a prudent

officer on notice that gang-tackling without first attempting a

less violent means of arresting a relatively calm trespass sus-

pect — especially one who had been cooperative in the past

and was at the moment not actively resisting arrest — was a

violation of that person’s Fourth Amendment rights. This

same principle would also adequately put a reasonable officer

on notice that punching Blankenhorn to free his arms when,

in fact, he was not manipulating his arms in an attempt to

avoid being handcuffed, was also a Fourth Amendment viola-

tion. Finally, we hold that no reasonable officer would have

believed that hobble restraints on his wrists and ankles, in

addition to handcuffs, were necessary to maintain control of

him and prevent possible danger to passersby.

[19] Therefore, we conclude that the state of the law was

“clearly established” at the time of Blankenhorn’s arrest and

gave the arresting officers sufficiently fair notice that their

conduct could have been unconstitutional. Accordingly, Gray,

Nguyen, Ross, and South are not entitled to qualified immu-

nity as to the gang tackle and punches used while taking

Blankenhorn into custody. Gray, Nguyen, Ross, South and

Kayano are not entitled to qualified immunity as to the use of

hobble restraints.12

12

Defendants argue that, because Blankenhorn offered no evidence that

Montano and Roman had physical contact with him, summary judgment

for them was proper. Defendants also argue that, though Kayano helped

handcuff Blankenhorn, summary judgment for him was proper because

Blankenhorn did not allege he used excessive force in doing so.

An officer’s liability under section 1983 is predicated on his “integral

participation” in the alleged violation. Chuman v. Wright, 76 F.3d 292,

BLANKENHORN v. CITY OF ORANGE 5219

3. Malicious Prosecution.

[20] Blankenhorn seeks damages for the three months he

spent incarcerated after the district attorney filed charges

against him. A police officer who maliciously or recklessly

makes false reports to the prosecutor may be held liable for

damages incurred as a proximate result of those reports. See

Barlow, 943 F.2d at 1136-37; see also Galbraith v. County of

Santa Clara, 307 F.3d 1119, 1126-27 (9th Cir. 2002) (finding

294-95 (9th Cir. 1996). “ ‘[I]ntegral participation’ does not require that

each officer’s actions themselves rise to the level of a constitutional viola-

tion.” Boyd, 374 F.3d at 780. But it does require some fundamental

involvement in the conduct that allegedly caused the violation. See id.

(holding that every officer who provided armed backup for another officer

who unconstitutionally deployed a flash-bang device to gain entry to a

suspect’s home could be held liable for that use of excessive force because

“every officer participated in some meaningful way” in the arrest and

“every officer was aware of the decision to use the flash-bang, did not

object to it, and participated in the search operation knowing the flash-

bang was to be deployed”).

Roman, who arrived on the scene after the arrest was completed, and

Montano, who at most provided crowd control, did not participate in any

integral way in the arrest. Therefore, summary judgment in their favor was

properly granted.

Kayano’s help in handcuffing the prone Blankenhorn was, of course,

meaningful participation in the arrest. It is true that Blankenhorn does not

claim Kayano used excessive force in handcuffing him, and Ross, not

Kayano, placed the ripp-hobbles on Blankenhorn’s wrists and ankles. But

Kayano’s own declaration indicates that his help in handcuffing Blanken-

horn was instrumental in the officers’ gaining control of Blankenhorn,

which culminated in Ross’s application of hobble restraints. Therefore,

Kayano’s participation was integral to the use of the hobble restraints. See

id.

It follows that Gray, who ordered Ross to use the hobble restraints, and

Nguyen and South, who tackled Blankenhorn, also participated in an inte-

gral way in the application of the hobble restraints.

Accordingly, Gray, Nguyen, Ross, South, and Kayano may be held lia-

ble for this particular alleged use of excessive force. See Chuman, 76 F.3d

at 294-95.

5220 BLANKENHORN v. CITY OF ORANGE

that a coroner who “deliberately lied about the autopsy in the

autopsy report” could be held liable under § 1983).

Defendants claim that Nguyen, Ross, and South are entitled

to immunity from damages for malicious prosecution under

Smiddy v. Varney, 665 F.2d 261 (9th Cir. 1981). Smiddy held

that, “where police officers do not act maliciously or with

reckless disregard for the rights of an arrested person, they are

not liable for damages suffered by the arrested person after a

district attorney files charges unless the presumption of inde-

pendent judgment by the district attorney is rebutted.” Id. at

267. This presumption may be rebutted by showing, for

example, that the prosecutor “was pressured or caused by the

investigating officers to act contrary to his independent judg-

ment” or that the investigating officers presented the prosecu-

tor with “information known by them to be false.” Id. at 266-

67.

To overcome the presumption, Blankenhorn alleges that

Nguyen provided false information in his report by not dis-

closing that he punched Blankenhorn; that Balleste charged

him with two counts of resisting arrest based on Nguyen’s and

Ross’s false statements that he took a combative stance and

clenched his fists before being taken into custody; and that

Balleste added the gang-enhancement charges against him on

the basis of South’s false statement that he identified himself

as a gang-member.

[21] Blankenhorn’s allegations do not support a finding that

Gray, Montano, Kayano, Roman, and Romero were integrally

involved in providing false statements to the prosecutor and

thus in his allegedly malicious prosecution. See Chuman, 76

F.3d at 294-95. Therefore, we hold that the grant of summary

judgment on this claim in favor of those defendants was

proper.

The district court granted summary judgment for Nguyen

on Blankenhorn’s first contention because Nguyen’s omission

BLANKENHORN v. CITY OF ORANGE 5221

was not material to the charges. As to Blankenhorn’s second

claim, the district court held, citing Sloman v. Tadlock, 21

F.3d 1462 (9th Cir. 1994), that inconsistencies between

South’s and Blankenhorn’s versions of events was insufficient

to rebut the presumption of prosecutorial independence. The

district court did not address Blankenhorn’s third allegation.

[22] The district court’s resolution of Nguyen’s failure to

include the punches in his report was correct as to trespassing.

Even if Nguyen purposely omitted mentioning that he

punched Blankenhorn, that information was not legally rele-

vant to whether there was probable cause to charge Blanken-

horn with trespass. Consequently, Nguyen’s omissions —

though influential on Balleste’s tactical decision to drop the

charges — were not themselves the basis upon which the

charges were made. Because this evidence, even if true, does

not overcome the presumption of prosecutorial independence,

see Smiddy, 665 F.2d at 266-67, we affirm summary judgment

for Nguyen on this claim as to trespassing.

However, the district court’s holding with regard to

Blankenhorn’s malicious prosecution claim against South was

improper because the district court’s reliance on Sloman was

misplaced. Sloman held that “conclusory allegations [of false-

hood], standing alone, are insufficient to prevent summary

judgment” against a claim of malicious prosecution on the

ground of independent prosecutorial judgment. Sloman, 21

F.3d at 1474. The key fact in Sloman was that the plaintiff

“did not . . . point to any evidence of . . . fabrication, other

than the fact that the officers’ reports were inconsistent with

[his] own account of the incidents leading to his arrest.” Id.

Blankenhorn, however, provided more than conclusory alle-

gations of the falsehood of South’s statement. Specifically, he

supported his motion in opposition with Garcia’s declaration

that he “never heard Gary say or yell out that he was an 18th

Street gang member.” While Deputy D.A. Balleste may have

relied at least in part on the fact that Blankenhorn “was a

known 18th Street Gang member” in deciding to file the

5222 BLANKENHORN v. CITY OF ORANGE

gang-enhancement charges, Balleste stated that she relied on

South’s (potentially false) statement when the charges were

filed. (Blankenhorn’s later deposition testimony where he told

police he was, or had been, a gang member was obviously not

part of the charging decision.) Defendants did not provide any

additional evidence to prove that Balleste’s independent judg-

ment was an intervening cause of Blankenhorn’s gang-related

prosecution. Blankenhorn thus provided sufficient evidence to

survive Sloman and, in so doing, to rebut the presumption of

prosecutorial independence. Therefore, we reverse the grant

of summary judgment on this cause of action against South.

An issue of fact remains. See Smiddy, 665 F.2d at 267.

Blankenhorn also claims false statements in the arrest

reports filed by Ross and Nguyen led to his three resisting-

arrest charges. Before filing the charges, Balleste did not look

at the video, relying instead on Ross’s and Nguyen’s police

reports, both of which state that Blankenhorn took a combat-

ive stance and clenched his fists. Thus, the information in

those reports was the only basis for the resisting-arrest

charges. Again, Blankenhorn submitted more than mere con-

clusory allegations of falsehood by submitting the declaration

of a witness, Garcia, that directly contradicted the police

reports. A reasonable jury drawing all justifiable inferences

from the video and witness statements in Blankenhorn’s favor

could conclude that Blankenhorn did not act as Nguyen and

Ross alleged and, thus, that the reports included intentionally

false information. If so, Blankenhorn would overcome the

presumption of prosecutorial independence. See Borunda v.

Richmond, 885 F.2d 1384, 1390 (9th Cir. 1989) (plaintiff

overcame presumption where prosecutor had no information

but police reports and plaintiff presented evidence, in addition

to his own testimony, of false information in the reports); see

also Barlow, 943 F.2d at 1137 (discussing Borunda).

[23] Moreover, Nguyen’s purposeful omission that he

punched Blankenhorn is relevant to whether there was proba-

ble cause to charge him with resisting arrest. If the prosecutor

BLANKENHORN v. CITY OF ORANGE 5223

knew Nguyen used excessive force, there would likely be lit-

tle or no basis for charging him with resisting arrest as was

done here.13 See People v. Olguin, 173 Cal. Rptr. 663, 667

(Cal. Ct. App. 1981) (“[I]t has long been established that a

police officer is not permitted to use unreasonable or exces-

sive force in making an otherwise lawful arrest, and if the

officer does use such force the arrestee may use reasonable

force to protect himself in accordance with the principles of

self-defense.”); People v. White, 161 Cal. Rptr. 541, 544 (Cal.

Ct. App. 1980) (“[I]f a defendant is charged with [resisting

arrest] and the arrest is [made with excessive force], a defen-

dant cannot be convicted of [resisting arrest].”).

[24] We therefore hold that Ross and Nguyen are not enti-

tled to summary judgment under Smiddy. Accordingly, we

reverse the district court’s grant of summary judgment for

Ross and Nguyen on this cause of action.

4. Municipal Liability.

[25] Blankenhorn seeks to hold the City liable for the

arresting officers’ alleged use of excessive force. The City

may be held liable under section 1983 if its deliberate policy

caused the constitutional violation alleged. See Monell v.

Dep’t of Social Services of New York, 436 U.S. 658, 694

(1978); see also Lee v. City of Los Angeles, 250 F.3d 668, 681

(9th Cir. 2001). Because the policy Blankenhorn complains of

is a failure to train, he must show that (1) he was deprived of

a constitutional right, (2) the City had a training policy that

“ ‘amounts to deliberate indifference to the [constitutional]

rights of the persons’ with whom [its police officers] are

13

Blankenhorn was charged with three counts of resisting arrest. It is

impossible to discern from the record if any of these counts stem from his

actions before excessive force may have been used on him. Because this

case is on summary judgment, all inferences must be drawn in his favor

and, consequently, his claim for malicious prosecution analyzed with

respect to all three.

5224 BLANKENHORN v. CITY OF ORANGE

likely to come into contact”; and (3) his constitutional injury

would have been avoided had the City properly trained those

officers. See Lee, 250 F.3d at 681 (quoting City of Canton v.

Harris, 489 U.S. 378, 388-89 (1989)).

[26] The evidence Blankenhorn proffered to establish the

City’s policy of failing to train its officers in the use of exces-

sive force focused exclusively on Officer Nguyen. This

included performance evaluations and internal affairs inter-

views regarding Blankenhorn’s arrest as well as prior com-

plaints against Nguyen for excessive force.

[27] However, evidence of the failure to train a single offi-

cer is insufficient to establish a municipality’s deliberate pol-

icy. In Alexander we held that an executor seeking to hold a

municipality liable for the testator’s shooting death during a

police raid of his home could not establish as a matter of law,

solely on evidence of the municipality’s failure to train only

one officer, that the municipality had made the “deliberate” or

“conscious” choice required under Canton. See Alexander, 29

F.3d at 1367. We explained that, absent evidence of a

“program-wide inadequacy in training,” any shortfall in a sin-

gle officer’s training “can only be classified as negligence on

the part of the municipal defendant — a much lower standard

of fault than deliberate indifference.” Id. Because Blanken-

horn has limited his proof to the City’s failure to train only

Nguyen, he did not meet his burden to withstand Defendants’

motion for summary judgment. We therefore affirm this

aspect of the grant of summary judgment in the City’s favor.

5. Supervisorial Liability.

[28] Blankenhorn also seeks to hold Chief Romero liable

for Nguyen’s alleged use of excessive force in punching

Blankenhorn during the arrest. Chief Romero can be held lia-

ble in his individual capacity “ ‘for his own culpable action or

inaction in the training, supervision, or control of his subordi-

nates; for his acquiescence in the constitutional deprivation[;]

BLANKENHORN v. CITY OF ORANGE 5225

or for conduct that showed a reckless or callous indifference

to the rights of others.’ ” Watkins v. City of Oakland, 145 F.3d

1087, 1093 (9th Cir. 1998) (quoting Larez v. City of Los

Angeles, 946 F.2d 630, 646 (9th Cir. 1991)). If Nguyen used

excessive force, Chief Romero’s liability as supervisor

depends upon whether he “ ‘set in motion a series of acts by

others, or knowingly refused to terminate a series of acts by

others, which he knew or reasonably should have known,

would cause others to inflict the constitutional injury.’ ” Id.

(quoting Larez, 946 F.2d at 646).

Blankenhorn presented evidence that Chief Romero

approved Nguyen’s personnel evaluations despite three com-

plaints of excessive force having been lodged against him. For

the first incident (shaking an arrestee by the hair), Nguyen

received a forty-hour suspension and was ordered to complete

a mandatory fitness-for-duty psychological evaluation. For

the second incident (ordering his dog to attack a child), which

occurred while Nguyen was off-duty, he also received a forty-

hour suspension. For the last one (allegedly pushing a woman

in the breast during an investigatory stop), Nguyen received

a departmental reprimand. Nguyen’s evaluations also include

several citizen commendations.

In addition to the approved evaluations, Blankenhorn pre-

sented expert testimony from Roger Clark (“Clark”), a former

sergeant and lieutenant with twenty-seven years of experience

in the Los Angeles County Sheriff’s Department. Clark’s

opinion was that the Department’s discipline of Nguyen in all

three matters was insufficient. Clark opined that discipline for

the first complaint “should have included a re-training compo-

nent and a period of monitoring to make this effective disci-

pline and for deterrence.” For the second, Clark said Nguyen

should have been fired. For the last complaint, Clark said that

the “imposition of a written reprimand was tantamount to no

discipline.”

In Larez, the Ninth Circuit held there was no plain error in

a jury verdict finding Los Angeles Chief of Police Daryl

5226 BLANKENHORN v. CITY OF ORANGE

Gates liable for his officers’ use of excessive force. See Larez,

946 F.2d at 646. Larez presented evidence that Gates person-

ally dismissed his excessive force complaint against the offi-

cers who searched Larez’s house. Id. at 635. He also

presented an expert witness who testified that Chief Gates

should have disciplined the officers and established new pro-

cedures to avoid future similar incidents. Id. at 636. The

expert further testified that, based on a two-year comparative

study he had conducted, Los Angeles police officers almost

never received discipline as a result of citizens complaints. Id.

Larez held that on this evidence the jury could have found

Chief Gates “condoned, ratified, and encouraged excessive

use of force” among the officers he supervised, and thereby

caused Larez’s constitutional violations. Id. at 646.

Watkins is similar. Watkins, who sought damages for inju-

ries caused by a police dog during his arrest on suspicion of

burglary, charged the officer who released the dog, Chew,

with use of excessive force and sought to hold Oakland Police

Chief Samuels liable as well. Watkins, 145 F.3d at 1093. Wat-

kins presented evidence that Samuels, without determining

whether ameliorative action was called for, signed an internal

affairs report dismissing Watkins’s complaint against Chew

despite evidence in the report of Chew’s excessive force dur-

ing Watkins’s arrest and in other dog bite incidents. Id. Wat-

kins also argued that Chief Samuels failed to establish new

procedures to avoid similar injuries “despite evidence of

numerous injuries to suspects apprehended by the use of

police dogs.” Id.

[29] While Chief Romero did not personally dismiss com-

plaints against Nguyen, as was the case in Larez and Watkins,

he did approve Nguyen’s personnel evaluations despite

repeated and serious complaints against him for use of exces-

sive force. That approval, together with the expert testimony

regarding the ineffectiveness of Nguyen’s discipline for those

complaints, could lead a rational factfinder to conclude that

Romero knowingly condoned and ratified actions by Nguyen

BLANKENHORN v. CITY OF ORANGE 5227

that he reasonably should have known would cause constitu-

tional injuries like the ones Blankenhorn may have suffered.

Another genuine issue of material fact exists. Accordingly,

summary judgment for Chief Romero on this issue was improp-

er.14

B. Blankenhorn’s State Law Causes of Action.

Blankenhorn’s suit includes state law claims against Defen-

dants for false arrest/false imprisonment,15 assault and battery,

negligence, and intentional infliction of emotional distress.

The district court granted summary judgment for Defendants

on all these claims on grounds that Defendants were immune

under California law.

[30] Defendants claim that they enjoy statutory immunity

under California Penal Code section 847(b) from Blanken-

horn’s false arrest/false imprisonment claim. That statute pro-

vides that an officer cannot be held civilly liable for false

imprisonment where the officer, “acting within the scope of

his or her authority,” made a “lawful” arrest or “had reason-

able cause to believe the arrest was lawful.” CAL. PEN. CODE

§ 847(b); see also Galvin v. Hay, 374 F.3d 739, 758 (9th Cir.

2004). A California police officer is authorized by statute to

make a warrantless arrest on probable cause that a person has

14

If, on remand, Blankenhorn fails to establish a constitutional violation,

then the question of supervisorial liability would be moot. See City of Los

Angeles v. Heller, 475 U.S. 796, 799 (1986); Quintanilla v. City of Dow-

ney, 84 F.3d 353, 355 (9th Cir. 1996).

15

In California, false arrest is a species of the tort of false imprisonment.

Collins v. City & County of San Francisco, 123 Cal. Rptr. 525, 526 (Cal.

Ct. App. 1975) (“False arrest is but one way of committing a false impris-

onment.”). “False imprisonment is ‘the nonconsensual, intentional con-

finement of a person, without lawful privilege, for an appreciable length

of time, however short.’ ” George v. City of Long Beach, 973 F.2d 706,

710 (9th Cir. 1992) (quoting Molko v. Holy Spirit Ass’n for Unification of

World Christianity, 762 P.2d 46, 63 (Cal. 1988), cert. denied, 490 U.S.

1084 (1989)).

5228 BLANKENHORN v. CITY OF ORANGE

committed a “public offense” in the officer’s presence. CAL.

PEN. CODE § 836(a)(1). Trespass is a public offense. See CAL.

PEN. CODE §§ 15(2) & (3) (defining “public offense” as viola-

tion of the law for which a person may be, inter alia, impris-

oned or fined); § 602 (enumerating misdemeanor trespasses);

§ 19 (providing for punishment of imprisonment or fine for

misdemeanors). Because the arresting officers had probable

cause to believe Blankenhorn was trespassing at The Block

when he was arrested, we conclude that they were acting

within the scope of their authority under California law and,

therefore, that the arrest was lawful. See CAL. PEN. CODE

§ 836(a)(1); Atwater, 532 U.S. at 354. Accordingly, the offi-

cers are entitled to immunity from Blankenhorn’s state law

false imprisonment claim.

Defendants cite several other statutory provisions that, they

claim, provide immunity from Blankenhorn’s remaining state

law causes of action. However, none of these provisions sup-

ports their claim.

[31] First, Defendants’ argue that the arresting officers can-

not be held liable for Blankenhorn’s remaining state law

claims under California Government Code section 820.2.16

This provision of the California Tort Claims Act applies to

police officers’ discretionary decisions made during arrests.

See Price v. County of San Diego, 990 F. Supp. 1230, 1244

(S.D. Cal. 1998); Martinez v. County of Los Angeles, 54 Cal.

Rptr. 2d 772, 780 (Cal. Ct. App. 1996). But it has long been

established that this provision does not apply to officers who

use unreasonable force in making an arrest. See Scruggs v.

Haynes, 60 Cal. Rptr. 355, 360 (Cal. Ct. App. 1967) (“[A]

peace officer making an arrest is liable to the person arrested

16

Section 820.2 provides: “Except as otherwise provided by statute, a

public employee is not liable for an injury resulting from his act or omis-

sion where the act or omission was the result of the exercise of the discre-

tion vested in him, whether or not such discretion be abused.” CAL. GOV’T

CODE § 820.2

BLANKENHORN v. CITY OF ORANGE 5229

for using unreasonable force.”); Robinson v. Solano County,

278 F.3d 1007, 1016 (9th Cir. 2002) (en banc) (“California

denies immunity to police officers who use excessive force in

arresting a suspect.”). Because Blankenhorn’s remaining state

law claims arise from the alleged use of force during his

arrest, and because Gray, Nguyen, Ross, South, and Kayano

are not entitled to summary judgment on Blankenhorn’s

unlawful force claim under § 1983, those officers are there-

fore not entitled to summary judgment on Blankenhorn’s

remaining state law claims on the ground that they are

immune from liability under section 820.2.17

[32] Second, Defendants claim that California Government

Code section 821.6 bars liability from Blankenhorn’s remain-

ing state law causes of action.18 The provision’s principal

function is to provide relief from malicious prosecution. See

Kayfetz v. California, 203 Cal. Rptr. 33, 36 (Cal. Ct. App.

1984). But the statute also “extends to actions taken in prepa-

ration for formal proceedings,” including actions “incidental

to the investigation of crimes.” Amylou R. v. County of River-

side, 34 Cal. Rptr. 2d 319, 321-22 (Cal. Ct. App. 1994). Even

so, section 821.6, as it applies to police conduct, is limited to

17

For the same reason, we reject the district court’s basis for granting

summary judgment in Defendants’s favor on Blankenhorn’s intentional

infliction of emotional distress claim. In their motion, Defendants claimed

they were entitled to summary judgment on this cause of action because

Blankenhorn could not prove as a matter of law that taking lawful custody

of him was an “outrageous” act, a required element of the tort. The district

court held that, since Blankenhorn did not oppose Defendants’ argument,

Defendants were entitled to judgment as a matter of law. However,

Blankenhorn also alleges that the officers’ use of excessive force against

him was outrageous conduct. Since we cannot rule at this stage of the liti-

gation that the arresting officers use of force was lawful, Blankenhorn’s

supposed failure to oppose Defendants’ argument is inconsequential. Sum-

mary judgment on this claim was improper.

18

Section 821.6 provides: “A public employee is not liable for injury

caused by his instituting or prosecuting any judicial or administrative pro-

ceeding within the scope of his employment, even if he acts maliciously

and without probable cause.” CAL. GOV’T CODE § 821.6.

5230 BLANKENHORN v. CITY OF ORANGE

actions taken in the course or as a consequence of an investi-

gation. See, e.g., Phillips v. City of Fairfield, 406 F. Supp. 2d

1101, 1118 (E.D. Cal. 2005). Here, the alleged tortious con-

duct occurred during an arrest, not an investigation. More-

over, this is not the sort of conduct to which section 821.6

immunity has been held to apply. See, e.g., Crowe v. County

of San Diego, 303 F. Supp. 2d 1050, 1120 (S.D. Cal. 2004)

(interrogations and strip searches conducted during the course

of a murder investigation); Baughman v. California, 45 Cal.

Rptr. 2d 82, 89 (Cal. Ct. App. 1995) (destroying computer

floppy disks during search pursuant to investigation of com-

puter equipment theft); Amylou R., 34 Cal. Rptr. 2d at 322

(taking rape and attempted murder victim against her will to

the crime scene and later telling neighbors that she was lying

about what happened). Because Blankenhorn’s assault and

battery, negligence, and intentional infliction of emotional

distress claims are based on acts that allegedly happened dur-

ing his arrest, not pursuant to an investigation into his guilt,

section 821.6 does not confer immunity from those claims

upon Defendants.

[33] Third, Defendants argue that the City, at least, is enti-

tled to immunity from liability under Government Code sec-

tion 815.2. That section provides: “A public entity is liable for

injury proximately caused by an act or omission of an

employee of the public entity within the scope of his employ-

ment if the act or omission would, apart from this section,

have given rise to a cause of action against that employee or

his personal representative.” CAL. GOV’T CODE § 815.2(a).

This provision clearly allows for vicarious liability of a public

entity when one of its police officers uses excessive force in

making an arrest. See Mary M. v. City of Los Angeles, 814

P.2d 1341, 1348 (Cal. 1991) (“[A] governmental entity can be

held vicariously liable when a police officer acting in the

course and scope of employment uses excessive force or

engages in assaultive conduct.”). Because the City does not

claim that the arresting officers were acting outside the scope

of their duties, and the arresting officers are not entitled to

BLANKENHORN v. CITY OF ORANGE 5231

summary judgment on the use of unreasonable force, the City

is not entitled to immunity from liability under Government

Code section 815.2.

IV.

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment for the City on Blankenhorn’s

municipal liability claim, and AFFIRM the grant of summary

judgment for Gray, Nguyen, Ross, and South on Blanken-

horn’s unlawful arrest claim. We REVERSE the grant of

summary judgment for Gray, Nguyen, Ross, South, and Kay-

ano on Blankenhorn’s excessive force claims; for Nguyen,

Ross, and South on his malicious prosecution claim; and for

Chief Romero on his supervisorial liability claim. We also

REVERSE the grant of summary judgment for Defendants

on all of Blankenhorn’s state law claims, except the false

arrest claim. We REMAND for further proceedings consis-

tent with this opinion.

The parties shall bear their own costs on appeal.

BERZON, Circuit Judge, concurring in part and dissenting in

part:

I am fully in accord with the majority opinion and join it,

except in one respect: I disagree with the majority’s holding

that there was probable cause to arrest Blankenhorn. I concur

rather than dissent on the false arrest issue, however, because

I believe that the arresting officers are qualifiedly immune

from liability for arresting Blankenhorn pursuant to California

Penal Code § 602(j). My remarks are styled a dissent only

because my conclusion with respect to probable cause

requires me to conclude that, on the subsequent question of

Blankenhorn’s state law claim for false arrest, the arresting

officers were not acting within the scope of their authority

5232 BLANKENHORN v. CITY OF ORANGE

under California law and thus do not enjoy statutory immu-

nity for their actions.

A. Probable Cause to Arrest

I cannot agree with the majority’s conclusion that the offi-

cers had probable cause to arrest Blankenhorn for trespassing

under both section 602(n) and section 602(j) of the California

Penal Code. In my view, there was probable cause under nei-

ther section.

First, the parties agree that there was no request to leave

sufficient to trigger section 602(n). They do not suggest that

the “Notice Forbidding Trespass” could serve as such a

request. And the parties are quite right: The language of the

statute explicitly requires a contemporaneous request for the

individual to leave and, when necessary, for the assistance of

a peace officer, not a notice issued weeks earlier. And, as the

record is clear that on the night of his arrest Blankenhorn was

never asked to leave the premises prior to his arrest nor did

The Block ever ask the officers to remove him, our probable

cause analysis should end there.

Instead, the majority asserts that the request to leave

required by section 602(n) need not be contemporaneous with

the arrest because the “on each occasion” language in the stat-

ute only applies to the property owner’s request to the peace

officer.1 The statute, however, plainly indicates otherwise:

1

At the time of Blankenhorn’s arrest, section 602(n) read in relevant

part:

Refusing or failing to leave land, real property, or structures

belonging to or lawfully occupied by another and not open to the

general public, upon being requested to leave by (1) a peace offi-

cer at the request of the owner, the owner’s agent, or the person

in lawful possession, and upon being informed by the peace offi-

cer that he or she is acting at the request of the owner, the

owner’s agent, or the person in lawful possession, or (2) the

BLANKENHORN v. CITY OF ORANGE 5233

Section 602(n) prohibits an individual from “[r]efusing or

failing to leave land . . . upon being requested to leave.” CAL.

PENAL CODE § 602(n) (emphasis added). In this context,

“upon” denotes a temporal relationship between the refusal

and the request much more immediate than the five months

that passed between the “Notice Forbidding Trespass” and the

night in question. See WEBSTER’S NEW INTERNATIONAL DICTIO-

NARY OF THE ENGLISH LANGUAGE 2518 (3d ed., 1976) (defining

“upon” as “immediately following on : very soon thereafter”);

THE COMPACT OXFORD ENGLISH DICTIONARY 2199 (2d ed.,

1989) (defining “upon” as “[o]n the occasion of” and

“[i]mmediately after, following on”). Because Blankenhorn

was never asked to leave that evening, the officers lacked

probable cause to believe that section 602(n) had been violated.2

owner, the owner’s agent, or the person in lawful possession. The

owner, the owner’s agent, or the person in lawful possession shall

make a separate request to the peace officer on each occasion

when the peace officer’s assistance in dealing with a trespass is

requested. However, a single request for a peace officer’s assis-

tance may be made to cover a limited period of time not to

exceed 30 days and identified by specific dates, during which

there is a fire hazard or the owner, owner’s agent or person in

lawful possession is absent from the premises or property. In

addition, a single request for a peace officer’s assistance may be

made for a period not to exceed six months when the premises

or property is closed to the public and posted as being closed.

CAL. PENAL CODE § 602(n) (West 2001).

2

Even if the timing were different, the “Notice Forbidding Trespass”

hardly constituted a “request” to leave. Rather, it was essentially the

equivalent of a “No Trespassing” sign tailored specifically to Blanken-

horn, serving to take him out of the “public” to whom the property nor-

mally was open. The “request” requirement in section 602(n) indicates

that such a posting is not enough — there also must be a contemporaneous

request to leave the property before trespassing has occurred. Cf. CAL.

PENAL CODE §§ 602(I), (k) (barring only certain actions, but not simple

entry without a request to leave, “where signs forbidding trespass are dis-

played”).

5234 BLANKENHORN v. CITY OF ORANGE

Moreover, the majority improperly considers satisfied the

statutory requirement that the property owner make a “sepa-

rate request to the peace officer on each occasion when the

peace officer’s assistance in dealing with a trespass is request-

ed.” CAL. PENAL CODE § 602(n) (emphasis added). Although

the majority notes that “[d]efendants gave The Block a chance

to fulfill this requirement and that it was fulfilled,” this recita-

tion of the facts is misleading. In fact, The Block’s security

communicated the desire that the police assist in removing

Blankenhorn from the mall only after he was arrested. But the

statute plainly contemplates a request to the police officer

before, not after, an individual is requested to leave and then

arrested for failing to do so. Moreover, “[w]hether probable

cause exists depends upon the reasonable conclusion to be

drawn from the facts known to the arrest officer at the time

of arrest,” Devenpeck v. Alford, 543 U.S. 146, 152 (2004)

(emphasis added), so the post-arrest request cannot support a

finding of probable cause.

Additionally, a portion of section 602(n) not quoted by the

majority demonstrates why the “Notice Forbidding Trespass”

could not serve as the requisite request to the police officer.

After the language quoted in footnote 8, the statue continues:

However, a single request for a peace officer’s assis-

tance may be made to cover a limited period of time

not to exceed 30 days and identified by specific

dates, during which there is a fire hazard or the

owner, owner’s agent or person in lawful possession

is absent from the premises or property. In addition,

a single request for a peace officer’s assistance may

be made for a period not to exceed six months when

the premises or property is closed to the public and

posted as being closed.

CAL. PENAL CODE § 602(n) (emphasis added). Here, of course,

the “Notice Forbidding Trespass” was issued more than 30

days earlier, there was no fire hazard or absent owner, and the

BLANKENHORN v. CITY OF ORANGE 5235

property, The Block mall, was open to the public, although

not to Blankenhorn.

The majority recognizes that “actually convicting

[Blankenhorn] under section 602(n) might have been diffi-

cult,” but asserts that a reasonable officer could nonetheless

have had probable cause to think that Blankenhorn violated

the statute. Probable cause, however, cannot be established by

misreading a statute. See United States v. Twilley, 222 F.3d

1092, 1096 (9th Cir. 2000) (“[I]n this circuit, a belief based

on a misunderstanding of the law cannot constitute the rea-

sonable suspicion required for a constitutional traffic stop.”);

see also United States v. Tibbetts, 396 F.3d 1132, 1138 (10th

Cir. 2005) (“[F]ailure to understand the law by the very per-

son charged with enforcing it is not objectively reasonable.”);

United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th

Cir. 2003) (holding that a mistake of law cannot provide the

“objectively reasonable grounds for reasonable suspicion or

probable cause”).

In sum, in the absence of a contemporaneous request to

Blankenhorn to leave The Block and the absence of a valid

request for police assistance, there is no factual basis for find-

ing probable cause.

Second, with respect to section 602(j), I cannot go along

with the majority’s conclusion that it was reasonable for the

officers to conclude that Blankenhorn intended to interfere

with, obstruct, or injure the lawful business of The Block. The

majority relies on a single fact to support such a finding: that

Blankenhorn had been banned from The Block a few months

earlier. The inference that one who enters on commercial

property where one is unwanted necessarily intends to inter-

fere with the business conducted there is too tenuous to sup-

port probable cause.

Indeed, California case law has read section 602(j) to

require much more tangible indices of intent on the part of the

5236 BLANKENHORN v. CITY OF ORANGE

alleged trespasser. In In re Ball, 100 Cal. Rptr. 189, 193 (Cal.

Ct. App. 1972), the defendant knew, because he had been told

so, that the activity he wanted to engage in would interfere

with Disneyland’s business. Moreover, he came on the prop-

erty to engage in the interfering activity, specifically to set up

a solicitation table in the path of a passenger tram. Id. at 192.

And interfere it did; the regular route of the passenger trams

had to be diverted. See id. (noting that “[a]s a result of peti-

tioner’s activities, . . . [the] supervisor of Disneyland security,

‘had to initiate action for the Tram to avoid the area by divert-

ing the Tram offloading to another area”). In re Ball inferred

intent from all these circumstances — “deliberately entering

the [Disneyland] parking lot and engaging in the conduct dis-

closed after having requested and been denied permission to

do so and from his refusal to leave when asked to do so.” Id.

at 193 (emphasis added).

Applying In re Ball here, it is relevant to his intent that

Blankenhorn was told not to return to The Block and did so

anyhow. But his being so told cannot be dispositive of the

question whether there is probable cause to believe that he

entered The Block with “the intention of interfering with,

obstructing, or injuring any lawful business” of The Block.

See CAL. PENAL CODE § 602(j). Unlike in In re Ball, where the

defendant came on to the property intending to set up a table

in the middle of the parking lot, the arresting officers had no

reason whatever to believe that Blankenhorn came onto the

mall property intending that any interference with the mall’s

business take place. If anything, the only reasonable inference

we can draw — because no facts to the contrary have been

presented — is that Blankenhorn came to The Block intend-

ing that he not act in a manner that would draw attention; pre-

sumably he did not want to be found out and ousted or

arrested.

As a result, I would hold that a prudent officer could not

have concluded that there was probable cause to arrest

Blankenhorn for violation of section 602(j), when all that was

BLANKENHORN v. CITY OF ORANGE 5237

known at the time of arrest was (1) he had been told he was

not to return to The Block; and (2) he did so anyway.

B. Qualified Immunity

As discussed above, the parties agree that section 602(n)

did not apply, and I find that section’s language unambiguous

on both the need for a contemporaneous request to leave and

the need for a pre-arrest, contemporaneous request for police

assistance. Consequently, I would hold that qualified immu-

nity fails as to section 602(n).3

I do agree with the majority, however, that qualified immu-

nity precludes liability with respect to arrest pursuant to sec-

tion 602(j). That statute lacks the specificity of section 602(n).

As the majority notes, there is little pertinent California case

law construing section 602(j), and none that makes clear that

returning to property after having been permanently banned

from it could not constitute an intent to interfere with busi-

ness.

Further, as the majority explains, there is at least one theory

on which an officer could reasonably believe that such a

return demonstrates the requisite intent — that the security

officers at The Block would likely have spent time interacting

with Blankenhorn to get him to leave. Although I do not

believe that the likelihood that a security officer would have

to do what he is hired to do can support probable cause of an

intent to interfere with The Block’s business, there is no Cali-

fornia case law to the contrary. See Peng v. Mei Chin Penghu,

335 F.3d 970, 980 (9th Cir. 2003) (“Even absent probable

cause, qualified immunity is available if a reasonable police

officer could have believed that his or her conduct was lawful,

in light of the clearly established law . . . .”). I therefore con-

cur in the conclusion that there was qualified immunity with

3

The fact that the defendants concede the probable cause issue as to sec-

tion 602(n) further suggests that the question is not a close one.

5238 BLANKENHORN v. CITY OF ORANGE

regard to whether there was probable cause to arrest Blanken-

horn pursuant to section 602(j).

C. State Law False Arrest Claim

Finally, because I part ways with the majority with respect

to probable cause for arrest, it follows that I must dissent from

its conclusion that Blankenhorn’s state law claim for false

arrest is precluded by statutory immunity. In California, an

officer cannot be held civilly liable in these circumstances if

he or she, “acting within the scope of his or her authority,”

made a “lawful” arrest, or “had reasonable cause to believe

the arrest was lawful.” CAL. PENAL CODE § 847(b). Because I

would hold that the arrest was unlawful and, thus, not within

the scope of the officers’ authority, I also would find that the

officers could not claim immunity under section 847(b).

Because I agree with the majority that no provisions provide

immunity on the other state law claims, all of Blankenhorn’s

state law claims should be allowed to go forward.