Rogelio Reyes v. City of Santa Ana

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 22 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGELIO REYES, No. 19-56144

Plaintiff-Appellant, D.C. No.

8:18-cv-01537-DOC-ADS

v.

CITY OF SANTA ANA; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted October 7, 2020

Pasadena, California

Before: M. SMITH and OWENS, Circuit Judges, and CARDONE, ** District Judge.

Appellant asks this court to reverse the district court’s entry of summary

judgment which disposed of his case. Appellant also requests that this court reverse

the district court’s denial of leave to amend his claim against Appellee City of Santa

Ana pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), which was

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

**

The Honorable Kathleen Cardone, United States District Judge for the

Western District of Texas, sitting by designation.

dismissed before the summary judgment stage. The parties are familiar with the

facts, so we do not recite them here, except as necessary to provide context to our

ruling. We have jurisdiction under 28 U.S.C. § 1291.

1. Initially, Appellant pleaded a Fourth Amendment illegal arrest claim against

Appellees Anh Tu Phan, Daniel Carrillo, David Guzman, Jonathon Perez, Justin

Collins, Kameron Henderson, Kenneth Gray, and Matthew Wharton (the Officers).

The district judge found that the Officers had qualified immunity from Appellant’s

unlawful arrest claim because their conduct in detaining him did not violate clearly

established law, and granted summary judgment for that reason. On appeal,

Appellant argues that the Officers lack qualified immunity from his unreasonable

arrest claim because they violated clearly established law in detaining him.

We start our analysis by setting out the relevant facts. On January 12, 2018,

the Officers investigated a Sprint cell phone store robbery in Santa Ana, California.

In so doing, the Officers identified Appellant as a suspect, then traveled to his

apartment. After the Officers arrived at Appellant’s home, they assembled near the

front door, which is fronted by an open and unobstructed outdoor walkway that the

public uses to pass through Appellant’s apartment complex. When the Officers were

ready to apprehend Appellant, one Officer knocked on Appellant’s front door. After

no one answered, the same Officer knocked again, and Appellant opened the door

shortly thereafter. The Officers asked Appellant to put his hands up and exit the

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residence. Appellant complied with both requests and stepped into his doorway. As

Appellant passed over the threshold of his apartment, one of the Officers grasped

Appellant’s hand, turned him around, clasped his hands behind his back, pulled him

out of the doorway, and handcuffed him.

The parties agree that, under the above facts, the Officers executed a doorway

exception arrest authorized by United States v. Vaneaton, 49 F.3d 1423 (9th Cir.

1995). But Appellant maintains that Vaneaton’s doorway exception was abrogated

by the limitations on police access to home curtilage set out in Florida v. Jardines,

569 U.S. 1 (2013). This reasoning fails. There is tension between Jardines and

Vaneaton. See United States v. Lundin, 817 F.3d 1151, 1160–61 (9th Cir. 2016).

However, these cases are distinguishable, as Jardines addressed police intrusions on

home curtilage, while Vaneaton involved officers making an arrest while standing

in motel common space that was open to the public. Id. Because Jardines and

Vaneaton are not “clearly irreconcilable,” the latter remains good law. See Miller v.

Gammie, 335 F.3d 889, 893 (9th Cir. 2003). As such, the Officers did not violate

clearly established law of which a reasonable person would have been aware by

arresting Appellant in his doorway. See Martinez v. City of Clovis, 943 F.3d 1260,

1270 (9th Cir. 2019).

In the alternative, Appellant argues that the Officers’ conduct in arresting him

was at odds with United States v. Johnson, 626 F.2d 753 (9th Cir. 1980). We view

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Johnson as standing for the principle that police officers violate the Fourth

Amendment when, in making an arrest, they use deception to convince a suspect to

open a door to his home. See 626 F.2d at 757 (“Johnson opened the door of his

dwelling after the agents misrepresented their identities; thus, Johnson’s initial

exposure to the view and the physical control of the agents was not consensual on

his part.”). Johnson also explains that police officers violate the Fourth Amendment

when they show their weapons to secure consent to enter a suspect’s residence. See

id. (“Johnson’s invitation to the agents to enter after the door was opened was hardly

voluntary in light of the coercive effect of the weapons brandished by the agents.”).

Neither happened here. Appellant observed one or more of the Officers through his

peephole after an Officer knocked on his door, and the Officers did not pretend to

be anyone else. Also, Appellant did not actually see any firearms before opening

his door, or invite the Officers into his apartment. For these reasons, Johnson is

inapposite to Appellant’s case.

The Officers did not violate any clearly established law by arresting Appellant

as he passed through his doorway, and Johnson is irrelevant to this case. Therefore,

the Officers have qualified immunity from Appellant’s Fourth Amendment illegal

arrest claim. We accordingly AFFIRM summary judgment on that claim.

2. Appellant also pleaded a California false arrest claim against the Officers. In

response, the Officers claimed California Penal Code § 847(b)(1) immunity. The

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district judge granted summary judgment on Appellant’s California false arrest claim

because the Officers had probable cause to detain Appellant and qualified immunity

from Appellant’s Fourth Amendment unlawful arrest claim. However, “probable

cause is necessary but not by itself sufficient to establish an arrest’s lawfulness.”

George v. City of Long Beach, 973 F.2d 706, 710 (9th Cir. 1992). And California

Penal Code § 847(b)(1) does not incorporate federal qualified immunity concepts.

See Cornell v. City & Cnty. of S.F., 225 Cal. Rptr. 3d 356, 374 (Cal. Ct. App. 2017).

Because the district judge misapplied California law and there are genuine issues of

material fact regarding whether the Officers violated Appellant’s constitutional

rights when they arrested him, we REVERSE summary judgment on the California

false arrest claim and REMAND.

3. Beyond the above claims, Appellant pursued a Fourth Amendment excessive

force claim based on the Officers putting him in tight handcuffs. Tight handcuffing

can constitute a Fourth Amendment violation. See Wall v. Cnty. of Orange, 364 F.3d

1107, 1112 (9th Cir. 2004); LaLonde v. Cnty. of Riverside, 204 F.3d 947, 960 (9th

Cir. 2000); Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993); Hansen v.

Black, 885 F.2d 642, 645 (9th Cir. 1989). But, in these cases, the plaintiff suffered

more than nominal injuries from their handcuffs, or complained to police about tight

handcuffs, only to have their requests for loosening ignored. Summary judgment on

a tight handcuffing Fourth Amendment excessive force claim is merited if a plaintiff

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does not seek medical help or offer supporting documentary evidence. See Arpin v.

Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001).

In support of his tight handcuffing Fourth Amendment excessive force claim,

Appellant alleged that he sustained a “little bruise” that did not result in black skin

discoloration, indentations that lasted until the end of the day he was released from

jail, and about two days of soreness. These are nominal injuries for which Appellant

did not seek medical treatment. Cf. Wall, 364 F.3d at 1112 (plaintiff suffered a nerve

injury in his wrist); Palmer, 9 F.3d at 1436 (plaintiff had bruises that lasted for

weeks). Also, when Appellant protested that his handcuffs were tight and asked for

loosening, Appellee Henderson complied with this request. Since Appellant offers

no other evidence, we AFFIRM summary judgment on his tight handcuffing Fourth

Amendment excessive force claim.

4. Appellant supplemented the above allegations with a California battery claim.

See So v. Shin, 151 Cal. Rptr. 3d 257, 269 (Cal. Ct. App. 2013) (California battery

requires, among other things, that a “defendant touched plaintiff, or caused plaintiff

to be touched, with the intent to harm or offend plaintiff.”). But the reasonableness

standard applied to state law battery by a peace officer matches the reasonableness

standard used for Fourth Amendment excessive force claims. See Yount v. City of

Sacramento, 76 Cal. Rptr. 3d 787, 802 (2008) (California battery claims, like § 1983

claims, require evidence that the officer used unreasonable force). Since Appellant

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failed to prove that his handcuffing violated the Fourth Amendment’s proscription

on excessive force, we AFFIRM summary judgment on his California battery claim.

5. Appellant grounded a second Fourth Amendment excessive force claim in the

Officers aiming their guns at him as he opened his door. Pointing guns at a suspect

can be excessive force. See Espinosa v. City & Cnty. of S.F., 598 F.3d 528, 537 (9th

Cir. 2010); Tekle v. United States, 511 F.3d 839, 845–46 (9th Cir. 2007); Robinson

v. Solano Cnty., 278 F.3d 1007, 1015 (9th Cir. 2002) (en banc). Appellant pleaded

this gun pointing Fourth Amendment excessive force claim in his original and

amended complaints, and Appellees moved for summary judgment on it. Yet, the

district judge did not address gun pointing in granting Appellees summary judgment

on excessive force. The district judge then entered a final judgment on the merits,

which improperly terminated Appellant’s gun pointing Fourth Amendment

excessive force claim without consideration. “In general, an appellate court does

not decide issues that the trial court did not decide.” Planned Parenthood of Greater

Wash. and N. Idaho v. U.S. Dep’t of Health & Human Servs., 946 F.3d 1100, 1110

(9th Cir. 2020). As such, we REVERSE and REMAND to the district court to

decide in the first instance whether Appellant’s gun pointing Fourth Amendment

excessive force claim survives summary judgment.

6. The above reversal affects Appellant’s California assault and Civil Code

§ 52.1 claims. The district judge entered summary judgment on these state law

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claims because Appellant did not prevail on his Fourth Amendment excessive force

claim. However, the district judge never ruled on Appellant’s gun pointing Fourth

Amendment excessive force claim. This omission is key as California assault

concerns invasions of the right to be free from fear of personal harm, which could

be caused by pointing a gun in a threatening manner. See Plotnik v. Meihaus, 146

Cal. Rptr. 3d 585, 597 (Cal. Ct. App. 2012). California Civil Code § 52.1 addresses

violations of civil rights through intimidation or threats, which may include pointing

a gun at another person. See Reese v. Cnty. Of Sacramento, 888 F.3d 1030, 1040–

41 (9th Cir. 2018). Section 1983 qualified immunity is not dispositive of Civil Code

§ 52.1 claims. See id. Therefore, we REVERSE summary judgment on Appellant’s

California assault and Civil Code § 52.1 claims and REMAND.

7. Appellant also brought a Fourth Amendment illegal search of property claim

against the Officers on grounds that he was forced to consent to a post-arrest search

of his apartment. The fact that the Officers pointed guns at Appellant as he opened

his door does not invalidate Appellant’s later consent to the search of his home,

which was given to one Officer during an interaction that did not involve drawn

weapons. See United States v. Alfonso, 759 F.2d 728, 741 (9th Cir. 1985). Also, the

Officers did not tell Appellant that they would secure a search warrant absent his

consent. Under these circumstances, Appellant freely and voluntarily consented to

the Officers’ search of his residence. See United States v. Johnson, 875 F.3d 1265,

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1276–77 (9th Cir. 2017). Hence, we AFFIRM summary judgment on Appellant’s

Fourth Amendment unlawful search of property claim.

8. The district judge found that Appellant’s Fourth Amendment illegal property

search and California trespassing claims were entwined to the point where his ruling

on the former disposed of the latter. California trespassing requires “lack of

permission for the entry or acts in excess of permission” that was obtained from an

occupant. Ralphs Grocery Co. v. Victory Consultants, Inc., 225 Cal. Rptr. 3d 305,

317 (Cal. Ct. App. 2017). Appellant readily consented to the Officers’ search of his

apartment during an interaction with one Officer who did not brandish any weapons

or mention securing a search warrant. Since Appellant voluntarily gave the Officers

permission to enter and search his residence, we AFFIRM the district court’s entry

of summary judgment on his California trespassing claim.

9. Appellant also challenges the district court’s denial of leave to amend his

Monell claim against Appellee City of Santa Ana. A one-off incident cannot be the

basis of a Monell claim. See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996)

(“Liability for improper custom may not be predicated on isolated or sporadic

incidents.”). But a Monell claim filed by way of 42 U.S.C. § 1983 will withstand a

motion to dismiss “even if the claim is based on nothing more than a bare allegation

that the individual officers’ conduct conformed to official policy, custom, or

practice.” Lee v. City of L.A., 250 F.3d 668, 682–83 (9th Cir. 2001) (internal

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quotation marks and citation omitted).

In deposition testimony, Appellee Henderson advised that Santa Ana Police

Department officers routinely arrest individuals by employing the same procedure

used to detain Reyes. Appellee Henderson stated that he was trained to “pull up in

front of the house, . . . set up a perimeter, and call everybody out from the house.”

Also, when asked if the Santa Ana Police Department trains its officers to order

people out of homes at gunpoint, Appellee Carrillo responded as follows: “So yes, I

do believe that what we did at that time was the right thing to do to keep everybody

safe.” Under this court’s law on Monell pleading standards, Appellant should have

been afforded the opportunity to remedy any pleading defects specific to that claim

through amendment. See Ariz. Students’ Assn. v. Ariz. Bd. of Regents, 824 F.3d 858,

871 (9th Cir. 2016) (“Dismissal of a complaint without leave to amend is only proper

when, upon de novo review, it is clear that the complaint could not be saved by any

amendment.”). As a result, we REVERSE the district court’s denial of Appellant’s

request for leave to amend his Monell claim and REMAND.

For the foregoing reasons, summary judgment for Appellees is AFFIRMED

in part and REVERSED in part, and the denial of leave to amend is REVERSED.

We REMAND this case for further proceedings consistent with this memorandum.

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