Shafer v. County of Santa Barbara

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAY RUSSELL SHAFER, No. 15-56548

Plaintiff-Appellee,

D.C. No.

v. 2:11-cv-08110-

FMO-FFM

COUNTY OF SANTA BARBARA; BILL

BROWN, individually and as Sheriff

of Santa Barbara County; SANTA OPINION

BARBARA SHERIFF’S DEPARTMENT,

Defendants,

and

FREDDY PADILLA, No. 2465,

individually and as a peace officer,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California

Fernando M. Olguin, District Judge, Presiding

Argued and Submitted April 6, 2017

Pasadena, California

Filed August 29, 2017

2 SHAFER V. PADILLA

Before: Milan D. Smith, Jr. and N. Randy Smith, Circuit

Judges, and Gary Feinerman.*

Opinion by Judge N.R. Smith

SUMMARY**

Civil Rights

The panel reversed a jury verdict and vacated damage

awards in favor of the plaintiff in an action brought under 42

U.S.C. § 1983 alleging that a police officer used excessive

force when he used a leg sweep maneuver to take down the

plaintiff after he refused to comply with the officer’s orders

to drop the water balloons he was carrying.

The panel held that viewing all of the facts in the light

most favorable to the jury’s verdict, there was sufficient

evidence to support the jury’s finding that the force used by

the officer was excessive. The panel nevertheless held that

the officer was entitled to qualified immunity because, at the

time the incident occurred, the law was not clearly established

that an officer cannot progressively increase his use of force

from verbal commands, to an arm grab, and then a leg sweep

maneuver when a misdemeanant refuses to comply with the

officer’s orders and resists, obstructs, or delays the officer in

*

The Honorable Gary Feinerman for the Northern District of Illinois,

sitting by designation.

**

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

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

SHAFER V. PADILLA 3

his lawful performance of duties such that the officer has

probable cause to arrest him in a challenging environment.

COUNSEL

Mary Pat Barry (argued), Senior Deputy; Michael C.

Ghizzoni, County Counsel; Office of County Counsel, Santa

Barbara, California; for Defendant-Appellant.

Steven B. Stevens (argued), Los Angeles, California; Thomas

E. Beck, The Beck Law Firm, Los Alamitos, California; for

Plaintiff-Appellee.

OPINION

N.R. SMITH, Circuit Judge:

College student Jay Russell Shafer refused to drop water

balloons at the request of Santa Barbara Sheriff’s Deputy

Freddy Padilla. Deputy Padilla then used a leg sweep

maneuver to take down and arrest Shafer. Shafer sued Deputy

Padilla, asserting violations of his constitutional rights under

42 U.S.C. § 1983. Deputy Padilla asserted the defense of

qualified immunity.

The jury found that Deputy Padilla violated Shafer’s

Fourth Amendment constitutional right to be free from

excessive force. The evidence adduced at trial was sufficient

to sustain the jury’s verdict. However, Deputy Padilla is

entitled to qualified immunity, because, at the time this

incident occurred, the law was not clearly established that an

officer cannot progressively increase his use of force from

4 SHAFER V. PADILLA

verbal commands, to an arm grab, and then a leg sweep

maneuver when a misdemeanant refuses to comply with the

officer’s orders and resists, obstructs, or delays the officer in

his lawful performance of duties such that the officer has

probable cause to arrest him in a challenging environment.

I. BACKGROUND

Students from the University of California, Santa Barbara

(“UCSB”) commonly congregate on Del Playa Drive, a street

near the university campus. On October 4, 2009, hundreds to

thousands of intoxicated students congregated on Del Playa

Drive. There was loud music playing, and students were

yelling, screaming, and running around.

Deputy Padilla and Sheriff’s Deputy Todd LeFemine

were on patrol that night on Del Playa Drive. Shortly after

midnight, four students approached the deputies and said that

they had just been hit with water balloons. This complaint

caused Deputy Padilla concern, because water balloons had

been a serious problem on Del Playa Drive and could cause

injuries or start fights. Within one minute of hearing this

report, Deputy Padilla identified two males—Shafer and his

friend Domenico Gianola—walking with water balloons in

their hands. The deputies approached Shafer and Gianola, and

Deputy Padilla ordered them to drop the balloons. Gianola

dropped his balloons, but Shafer did not. Instead, Shafer

asked Deputy Padilla three or four times why he could not

hold the balloons. Deputy Padilla continued to order Shafer

to drop the balloons but did not answer Shafer’s questions.

What happened next is disputed. According to Shafer,

Deputy Padilla aggressively grabbed him by the arm and

pulled him toward the curb. Shafer attempted to maintain his

SHAFER V. PADILLA 5

footing, but Deputy Padilla swung him toward the sidewalk.

Shafer never tried to break free of Deputy Padilla’s hold and

never resisted Deputy Padilla. Once Deputy Padilla and

Shafer reached the sidewalk, Deputy LeFemine grabbed

Shafer’s other arm. Deputy Padilla kicked Shafer’s feet out

from under him, and Shafer fell face first onto the pavement.

The officers piled on top of him.1 Shafer felt a knee go into

his back and a boot push his head into the pavement. One of

the officers handcuffed Shafer. The deputies pulled Shafer to

his feet and informed him that he was going to jail. Shafer

received a minor abrasion on his face and a bruise on his back

as a result of the takedown.

Deputy Padilla’s version of the events is much different.

He testified that after Shafer refused to drop the water

balloons, Shafer attempted to walk past him. Deputy Padilla

grabbed Shafer’s arm and escorted him approximately ten

feet to the curb. Shafer resisted Deputy Padilla’s grasp by

pulling his arm away from Deputy Padilla. When they got to

the curb, Deputy Padilla guided Shafer to sit on the curb by

applying pressure to Shafer’s arms. Once Shafer sat on the

curb, Deputy Padilla let go of Shafer. Instantly, Shafer

attempted to stand up and run away from Deputy Padilla.

Deputy Padilla quickly reached out and grabbed Shafer.

Deputy LeFemine, who was on Shafer’s other side, also

reached out and grabbed Shafer. The momentum took Shafer,

Deputy Padilla, and Deputy LeFemine to the ground. Shafer

put his hands underneath his body and continued to try to get

up. In an attempt to control Shafer, Deputy Padilla applied

body weight pressure between Shafer’s torso and legs. Two

UCSB campus officers, Jeff Lupo and Christina Rauchhaus,

1

Shafer testified that four officers were involved in the takedown, but

could not identify any of the officers except Deputy Padilla.

6 SHAFER V. PADILLA

witnessed this struggle and ran from the other side of the

street to provide assistance. To control Shafer, Officer

Raucchaus put her knee into Shafer’s back and handcuffed

him, and Officer Lupo applied pressure to Shafer’s legs. After

one of the officers handcuffed Shafer, they quickly pulled

him off the ground. Deputy Padilla told Shafer that he was

going to jail.

Trial testimony from the other witnesses varied slightly.

However, the testimony was generally consistent that Deputy

Padilla used a leg sweep maneuver to take down Shafer and

Shafer resisted Deputy Padilla.

II. PROCEDURAL HISTORY

Shafer filed suit against Defendants pursuant to 42 U.S.C.

§ 1983. The district court dismissed all of the Defendants

from the suit except for Deputy Padilla. Before trial, Deputy

Padilla filed, and the district court denied, a motion for

qualified immunity. Shafer proceeded to trial on his claims

against Deputy Padilla for (1) false arrest; (2) malicious

prosecution; (3) violation of his First Amendment rights; and

(4) violation of his Fourth Amendment rights. Before the

jury’s deliberation, Deputy Padilla filed a motion for

judgment as a matter of law pursuant to Rule 50 of the

Federal Rules of Civil Procedure. The district court denied

the motion.

The jury exonerated Deputy Padilla on every claim except

the Fourth Amendment claim for using excessive force.

Specifically, the jury found that Deputy Padilla had probable

cause to arrest Shafer for violations of California Penal Code

section 148. The jury also found that Shafer’s speech was not

a substantial or motivating factor for Deputy Padilla’s actions

SHAFER V. PADILLA 7

against Shafer and that Deputy Padilla did not maliciously

prosecute Shafer. As to Shafer’s Fourth Amendment claim,

the jury found that Deputy Padilla used excessive force

against Shafer and that Deputy Padilla “acted with malice,

oppression, or in reckless disregard” of Shafer’s rights. The

jury awarded Shafer $45,000 in economic damages and

$75,000 in non-economic damages, but did not award

punitive damages.

Deputy Padilla renewed his motion for judgment as a

matter of law based on qualified immunity or, in the

alternative, insufficient evidence of excessive force. He

moved in the alternative for a new trial. Deputy Padilla also

argued the district court erred by admitting prejudicial

evidence.2 The district court denied the motions, and Deputy

Padilla now appeals those decisions.

III. DISCUSSION

We review de novo a district court’s qualified immunity

determination denying judgment as a matter of law. C.B. v.

City of Sonora, 769 F.3d 1005, 1022 (9th Cir. 2014). “In

doing so, we ‘view all evidence in the light most favorable to

the nonmoving party, draw all reasonable inferences in favor

of the non-mover, and disregard all evidence favorable to the

moving party that the jury is not required to believe.’” Id.

(quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1021

(9th Cir. 2008)). A motion for judgment as matter of law may

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

have a legally sufficient evidentiary basis to find for the party

2

Because we hold Deputy Padilla is entitled to qualified immunity,

we need not determine whether the district court erred by admitting

prejudicial evidence.

8 SHAFER V. PADILLA

on that issue,” Fed. R. Civ. P. 50(a)(1), that is, “if, under the

governing law, there can be but one reasonable conclusion as

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

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

differ as to the import of the evidence,” the motion should be

denied. Id. at 250–51. Because this appeal comes after the

jury’s verdict, we must “construe the facts in the light most

favorable to the jury’s verdict.” Castro v. Cty. of Los Angeles,

833 F.3d 1060, 1064 n.1 (9th Cir. 2016); Escriba v. Foster

Poultry Farms, Inc., 743 F.3d 1236, 1245 (9th Cir. 2014). In

this case, the jury’s verdict was split. Thus, we draw all

factual inferences and resolve all issues of credibility in favor

of the jury’s findings that Deputy Padilla had probable cause

to arrest Shafer for resisting, delaying, or obstructing Deputy

Padilla; that Shafer’s protected speech was not a substantial

or motivating factor for Deputy Padilla’s actions; that Deputy

Padilla did not maliciously prosecute Shafer; and that Deputy

Padilla used excessive force against Shafer.

Qualified immunity affords limited protection to public

officials faced with liability under 42 U.S.C. § 1983, “‘insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.’” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). To determine whether qualified immunity applies in

a given case, we must determine: (1) whether a public official

has violated a plaintiff’s constitutionally protected right; and

(2) whether the particular right that the official has violated

was clearly established at the time of the violation.

Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 788 (9th Cir.

2016) (en banc). These two prongs of the analysis need not be

considered in any particular order, and both prongs must be

satisfied for a plaintiff to overcome a qualified immunity

SHAFER V. PADILLA 9

defense. See Pearson, 555 U.S. at 236. We now examine both

prongs of the analysis to determine whether Deputy Padilla

is entitled to qualified immunity.

A. Prong One: Constitutional Violation

The first prong under the qualified immunity test

determines whether Deputy Padilla violated Shafer’s

constitutional right. The jury found that Deputy Padilla

violated Shafer’s Fourth Amendment right to be free from

excessive force. Deputy Padilla challenges the sufficiency of

the jury’s verdict as to this claim.

Excessive force claims are founded on the Fourth

Amendment right to be free from unreasonable seizures of the

person. See U.S. Const. amend. IV; Graham v. Connor,

490 U.S. 386, 394–95 (1989). The Fourth Amendment is

implicated where an officer exceeds the bounds of reasonable

force in effecting “an arrest, investigatory stop, or other

seizure.” Graham, 490 U.S. at 395–96. We analyze excessive

force claims according to the constitutional touchstone of

objective reasonableness, so we do not consider an officer’s

subjective “intent or motivation.” Id. at 397. Instead, “the

question is whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances

confronting them, without regard to their underlying intent or

motivation.” Id. This determination requires us to balance the

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

Amendment interests against the countervailing governmental

interests at stake.” Id. at 396 (quotation marks and citations

omitted). To do this, we weigh three non-exclusive factors:

(1) “the severity of the crime at issue,” (2) “whether the

suspect poses an immediate threat to the safety of the officers

or others,” and (3) “whether [the suspect] is actively resisting

10 SHAFER V. PADILLA

arrest or attempting to evade arrest by flight.” Id. We judge

the reasonableness of the force “from the perspective of a

reasonable officer on the scene, rather than with the 20/20

vision of hindsight,” id. at 396, because “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,” id.

at 397.

We consider each of the Graham factors in turn to assess

whether a reasonable jury could have found Deputy Padilla’s

conduct to be excessive under the circumstances that he

faced. As to the severity of the crime involved, Deputy

Padilla initiated contact with Shafer based on a report that

someone had thrown water balloons at four individuals.

Approximately one minute later, Deputy Padilla saw Shafer

walking with water balloons in his hands. Deputy Padilla

argues that, based on this information, Shafer was suspected

of committing a battery, which is a crime of violence. Deputy

Padilla eventually arrested Shafer for resisting, obstructing,

or delaying a peace officer. See Cal. Penal Code § 148.

Although Deputy Padilla was entitled to use some degree of

force in executing Shafer’s arrest, Graham, 490 U.S. at 396,

the jury could conclude, based on the fact that Shafer was

suspected of committing only a misdemeanor, that Deputy

Padilla’s leg sweep maneuver was excessive under the

circumstances.

As to the threat Shafer posed, he never made any verbal

threats toward Deputy Padilla. Shafer was noncompliant in

following Deputy Padilla’s orders and he did resist, obstruct,

or delay Deputy Padilla when Deputy Padilla lawfully

arrested Shafer. In light of the surrounding circumstances,

Shafer’s actions presented some threat to Deputy Padilla.

SHAFER V. PADILLA 11

However, the jury could conclude (based on Shafer’s

testimony) that Shafer did not say anything threatening to

Deputy Padilla, and that any threat perceived by Deputy

Padilla was not “immediate” or significant enough to justify

a leg sweep maneuver.

As to whether Shafer was actively resisting arrest or

attempting to evade arrest by flight, the jury’s verdict on

probable cause to arrest under California Penal Code section

148 makes clear that Shafer willfully resisted, obstructed, or

delayed Deputy Padilla during his execution of Shafer’s

arrest.

Viewing all of the facts in the light most favorable to the

jury’s verdict, there is sufficient evidence to support the

jury’s verdict that the force used by Deputy Padilla was

excessive. The evidence presented was far from “one-sided,”

Anderson, 477 U.S. at 252, and did not give rise to “but one

reasonable conclusion as to the verdict,” id. at 250.

B. Prong Two: Clearly Established Law

Deputy Padilla may nonetheless be entitled to a qualified

immunity defense if Shafer’s Fourth Amendment rights were

not clearly established at the time Deputy Padilla committed

the violation. White v. Pauly, 137 S. Ct. 548, 551 (2017) (per

curiam); Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). For

a right to be clearly established, case law must ordinarily

have been earlier developed in such a concrete and factually

defined context to make it obvious to all reasonable

government actors, in the defendant’s place, that what he is

doing violates federal law. See White, 137 S. Ct. at 551

(explaining that “existing precedent must have placed the

statutory or constitutional question beyond debate . . .

12 SHAFER V. PADILLA

[because] immunity protects all but the plainly incompetent

or those who knowingly violate the law” (internal quotation

marks and citation omitted)); Dunn v. Castro, 621 F.3d 1196,

1199–1200 (9th Cir. 2010).

We begin our inquiry into whether this constitutional

violation was clearly established by defining the law at issue

in a concrete, particularized manner. See White, 137 S. Ct. at

552; al-Kidd, 563 U.S. at 743 (noting the Supreme Court has

repeatedly warned lower courts “not to define clearly

established law at a high level of generality”). We consider

this question in light of the jury’s findings that Deputy Padilla

had probable cause to arrest Shafer for resisting, obstructing,

or delaying arrest; that Shafer’s protected speech was not a

substantial or motivating factor for Deputy Padilla’s actions;

that Deputy Padilla did not maliciously prosecute Shafer; and

that Deputy Padilla used excessive force against Shafer.

Defined at an appropriate level of specificity, the question at

hand is whether an officer violates clearly established law

when he progressively increases his use of force from verbal

commands, to an arm grab, and then a leg sweep maneuver,

when a misdemeanant refuses to comply with the officer’s

orders and resists, obstructs, or delays the officer in his lawful

performance of duties such that the officer has probable cause

to arrest him in a challenging environment. The answer is no.

We are mindful of the Supreme Court’s pronouncement

in White v. Pauly that, to satisfy this step in the qualified

immunity analysis, we generally must “identify a case where

an officer acting under similar circumstances as [Deputy

SHAFER V. PADILLA 13

Padilla] was held to have violated the Fourth Amendment.”3

137 S. Ct. at 552. We are aware of no such case. Shafer cites

four cases with comparable degrees of force used by officers,

but none of which involved a challenging environment or an

act of physical resistance or obstruction by the arrestee. See

Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003); Wall

v. Cty. of Orange, 364 F.3d 1107, 1111–12 (9th Cir. 2004);

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

Blankenhorn v. City of Orange, 485 F.3d 463, 478–79 (9th

Cir. 2007). Shafer also cites two cases where officers used

more force than Deputy Padilla used. See Bryan v.

MacPherson, 630 F.3d 805, 832–33 (9th Cir. 2010); Lolli v.

Cty. of Orange, 351 F.3d 410, 416 (9th Cir. 2003). Although

we do not require a case to be “on all fours,” Deorle v.

Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001), “[w]e

cannot conclude . . . in light of these existing precedents, that

‘every reasonable official would have understood . . . beyond

debate,’” Mattos, 661 F.3d at 448 (quoting al-Kidd, 563 U.S.

at 741), that Deputy Padilla’s conduct in these circumstances

constituted excessive force based on the cases cited by

Shafer. In these cases, where there is a “hazy border between

excessive and acceptable force,” Brosseau v. Haugen,

3

There is prior precedent establishing that, in a sufficiently “obvious”

case of constitutional misconduct, we do not require a precise factual

analogue in our judicial precedents. Brosseau v. Haugen, 543 U.S. 194,

199 (2004) (per curiam) (“[I]n an obvious case, [highly generalized]

standards can ‘clearly establish’ the answer, even without a body of

relevant case law.”); United States v. Lanier, 520 U.S. 259, 271 (1997)

(“[I]n [some] instances a general constitutional rule already identified in

the decisional law may apply with obvious clarity to the specific conduct

in question, even though the very action in question has not previously

been held unlawful.” (internal quotation marks, alteration, and citation

omitted)). However, “the bar for finding such obviousness is quite high,”

Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011), and, because Shafer

does not argue that this exception applies, we do not address it.

14 SHAFER V. PADILLA

543 U.S. 194, 201 (2004) (per curiam) (quoting Saucier v.

Katz, 533 U.S. 194, 206 (2001)), such that the officer

“reasonably misapprehends the law governing the

circumstances []he confronted,” qualified immunity protects

officers. Id. at 198.

Shafer’s primary argument on appeal is that Deputy

Padilla violated clearly established law, because he had no

basis for using any force whatsoever. We disagree. The jury

found that Deputy Padilla had probable cause to arrest Shafer

for violations of California Penal Code section 148 for

resisting, delaying, or obstructing an officer. This entitled

Deputy Padilla to use some degree of force. See Graham,

490 U.S. at 396 (“[T]he right to make an arrest . . .

necessarily carries with it the right to use some degree of

physical coercion . . . .”).

Finally, Shafer argues that it is Deputy Padilla’s burden

to demonstrate that he did not violate Shafer’s clearly

established constitutional right. Again, we disagree. It is the

plaintiff who “bears the burden of showing that the rights

allegedly violated were ‘clearly established.’” See, e.g., LSO,

Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000).

Because Shafer fails to identify sufficiently specific

constitutional precedents to alert Deputy Padilla that his

particular conduct was unlawful, Deputy Padilla is entitled to

qualified immunity.

SHAFER V. PADILLA 15

Since we reverse and vacate the jury verdict and damages

awards, the parties shall bear their own costs associated with

this appeal.

REVERSED, JURY VERDICT AND DAMAGES

AWARDS VACATED.