Tasha Williamson v. City of National City

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TASHA WILLIAMSON, an individual, No. 20-55966

Plaintiff-Appellee,

D.C. No.

v. 3:18-cv-02394-

WQH-JLB

CITY OF NATIONAL CITY; LUCKY

NGUYEN; JOHN MCGOUCH,

Defendants-Appellants. OPINION

Appeal from the United States District Court

for the Southern District of California

William Q. Hayes, District Judge, Presiding

Argued and Submitted June 10, 2021

Pasadena, California

Filed January 24, 2022

Before: Susan P. Graber, Consuelo M. Callahan, and

Danielle J. Forrest, Circuit Judges.

Opinion by Judge Forrest

2 WILLIAMSON V. CITY OF NATIONAL CITY

SUMMARY *

Civil Rights

The panel reversed the district court’s denial of

defendants’ summary judgment motion asserting qualified

immunity in an action brought pursuant to 42 U.S.C. § 1983

and state law alleging that police officers used excessive

force when they removed plaintiff from a city council

meeting where she and others were protesting.

The protest prevented the city council meeting from

continuing and police officers warned the protesters that they

had to leave the meeting room or they would be arrested. The

protesters refused to leave and passively resisted being

removed by going limp. Officers handcuffed the protesters

and carried or pulled them by their arms from the meeting

room. Plaintiff Tasha Williamson alleged that she suffered

wrist and shoulder injuries when she was forcibly removed.

The panel determined that it had jurisdiction over this

interlocutory appeal, noting that whether an officer’s

conduct violates the Fourth Amendment is a legal issue. The

panel next held that it had jurisdiction over the denial of

summary judgment on Williamson’s California’s Tom Bane

Civil Rights Act (the Bane Act) claim, under the doctrine of

pendent appellate jurisdiction because the rulings related to

that claim and Williamson’s Section 1983 claim were

inextricably intertwined.

*

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

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

WILLIAMSON V. CITY OF NATIONAL CITY 3

The panel concluded that the Officers did not violate

Williamson’s Fourth Amendment rights; therefore, there

was no need to address the clearly-established prong of the

qualified immunity analysis. Even viewing the evidence in

Williamson’s favor, the type and amount of force used by

the Officers in this case was minimal. The Officers did not

strike Williamson, throw her to the ground, or use any

compliance techniques or weapons for the purpose of

inflicting pain on her. Rather, they held her by her arms and

lifted her so they could pull her out of the meeting room after

she went limp and refused to leave on her own or cooperate

in being removed.

The panel further concluded that although National

City’s interest in forcibly removing Williamson from the city

council meeting was low, it was not nonexistent; the city was

not required to permit the organized lawlessness conducted

by the protestors. The panel concluded that the severity of

the officers’ intrusion and the weight of National City’s

interests were aligned; that is, the city’s interests were low,

and the Officers’ use of force was appropriately minimal.

The Officers were therefore entitled to qualified immunity.

Because the panel concluded that defendants did not violate

Williamson’s Fourth Amendment rights, it reversed the

district court’s decision denying summary judgment on

Williamson’s Bane Act claims.

4 WILLIAMSON V. CITY OF NATIONAL CITY

COUNSEL

Lee H. Roistacher (argued), Mitchell D. Dean, and

Heather E. Paradis, Dean Gazzo Roistacher LLP, Solana,

Beach, California, for Defendants-Appellants.

Douglas S. Gilliland (argued), The Gilliland Firm, San

Diego, California, for Plaintiff-Appellee.

OPINION

FORREST, Circuit Judge:

This excessive force case concerns how police officers

responded to a protest that Plaintiff Tasha Williamson and

others participated in during a National City, California, city

council meeting. The protest prevented the city council

meeting from continuing, and police officers warned the

protesters that they had to leave the meeting room or they

would be arrested. The protesters refused to leave and

passively resisted being removed by going limp. Officers

handcuffed the protesters and carried or pulled them by their

arms from the meeting room. Williamson sued under

42 U.S.C. § 1983, alleging that she suffered wrist and

shoulder injuries when she was forcibly removed. We

conclude that the officers did not use excessive force in

violation of the Fourth Amendment, and we reverse the

district court’s denial of the officers’ summary judgment

motion asserting qualified immunity.

WILLIAMSON V. CITY OF NATIONAL CITY 5

I. BACKGROUND 1

A. The protest

In July 2018, protestors, including Williamson,

performed a “die-in” at a city council meeting in National

City, related to the death of Earl McNeil, a black man who

died in police custody. 2 At a predetermined time, the

protestors disrupted the meeting by chanting, and several of

them made their way toward the public speaking podium and

city council members. After showing the city council

members their “bloody hands,” six protesters lay down on

the ground near the podium, keeping their red-painted hands

raised and chanting “I am Earl McNeil,” and “you have

blood on your hands.” Several other people associated with

the protest remained in the audience showing painted red

hands, chanting, and video-recording the demonstration. The

mayor called for order, but the protesters refused to stop their

demonstration, and the council meeting was adjourned.

A few minutes after the protest began, National City

police officers informed the protesters that they would be

arrested if they did not leave the podium area. When the six

protesters ignored repeated requests to leave, the officers

1

Given the procedural posture of this case, we present the facts in

the light most favorable to Williamson. Ames v. King County, 846 F.3d

340, 347 (9th Cir. 2017). However, “[w]e do not credit a party’s version

of events that the record, such as an unchallenged video recording of the

incident, ‘quite clearly contradicts.’” Rice v. Morehouse, 989 F.3d 1112,

1120 (9th Cir. 2021) (quoting Scott v. County of San Bernardino, 903

F.3d 943, 952 (9th Cir. 2018)); see also Scott v. Harris, 550 U.S. 372,

380–81 (2007).

McNeil’s death was ruled a homicide by the medical examiner. See

2

DA Releases Video of Earl McNeil’s Detention by National City Police,

NBC News San Diego, Sept. 22, 2018.

6 WILLIAMSON V. CITY OF NATIONAL CITY

began arresting them. The protesters had previously agreed

that, if arrested, they would act as dead weight and refuse to

cooperate with being removed. The six protestors followed

through with this agreement, and officers pulled or carried

each of them out.

B. Williamson’s arrest

Officers Lucky Nguyen and John McGough 3 (the

Officers), handcuffed Williamson with her wrists behind her

back and brought her to a seated position. But as they lifted

her toward a standing position, they lost their grip on her and

she rolled back to the ground on her stomach. The Officers

then repositioned Williamson onto her back and again tried

lifting her. Officer Nguyen held Williamson under her left

arm, and Officer McGough held her under her right arm. As

they lifted her up, Williamson initially placed her feet under

her, but she did not support her own weight. The Officers

struggled to lift Williamson and pulled her backward by her

arms and wrists while she was in nearly a seated position.

Williamson was loudly chanting before the Officers started

removing her from the room. During the approximately

12 seconds that she was being pulled from the room,

Williamson screamed continually. As the Officers and

Williamson approached the exit door, Officer McGough

released Williamson’s upper right arm, and Officer Nguyen

dragged her through the doorway alone, by her left wrist and

forearm.

In the hallway outside the meeting room, Williamson

told the Officers that they had hurt her shoulder, and they

3

Officer McGough’s name is spelled inconsistently throughout the

record and the district court’s decision. This opinion uses the spelling

from Officer McGough’s declaration.

WILLIAMSON V. CITY OF NATIONAL CITY 7

called an ambulance. The Officers also double-cuffed

Williamson to lessen the tension on her arms and make her

more comfortable, but she complained that they were “still

pulling” her arms in doing so. Paramedics arrived, evaluated

Williamson, and offered to take her to the hospital, but she

refused to go with them. The Officers then arrested

Williamson and took her to a detention facility. After she

was released the next morning, Williamson drove herself to

the hospital. She suffered a sprained wrist, mild swelling,

and a torn rotator cuff. 4

C. Summary judgment proceedings

Williamson sued the Officers under 42 U.S.C. § 1983

and California’s Tom Bane Civil Rights Act (the Bane Act),

Cal. Civ. Code § 52.1, alleging that they used excessive

force against her in violation of the Fourth Amendment.

Specifically, she claimed that it was excessive for them to

“pull[] the full weight of her body by her hyperextended

arms.” The Officers moved for summary judgment based on

qualified immunity. The district court denied the Officers’

motion concluding—in pertinent part—that Williamson

“present[ed] a genuine issue of material fact as to the

excessive force claim regarding [the Officers’] pulling of

[Williamson]’s arms and hands such that a reasonable jury

could find excessive force in violation of 42 U.S.C. § 1983.”

Considering whether existing law clearly established a

constitutional violation, the district court held that “[i]t was

clearly established at the time of the incident that Defendant

4

The parties dispute whether the torn rotator cuff resulted from this

incident or from a prior arrest that is the subject of a different lawsuit.

Because this case is on appeal from a denial of summary judgment, we

lack jurisdiction to resolve factual disputes and must accept

Williamson’s version of events. See Isayeva v. Sacramento Sheriff’s

Dep’t, 872 F.3d 938, 945 (9th Cir. 2017).

8 WILLIAMSON V. CITY OF NATIONAL CITY

Nguyen’s and Defendant McGou[g]h’s use of force must be

reasonable under the circumstances.”

II. DISCUSSION

We typically lack jurisdiction to hear interlocutory

appeals from denials of summary judgment, but an exception

exists for denials premised on qualified immunity. Isayeva,

872 F.3d at 944–45; see 28 U.S.C. § 1291. However, this

exception is limited to legal issues, not factual disputes;

whether an officer’s conduct violated the Fourth

Amendment is a legal issue. See Plumhoff v. Rickard,

572 U.S. 765, 773 (2014). We have jurisdiction over the

denial of summary judgment on Williamson’s Bane Act

claims under the doctrine of pendent appellate jurisdiction

because the rulings related to that claim and Williamson’s

Section 1983 claim are inextricably intertwined. See Huskey

v. City of San Jose, 204 F.3d 893, 903–04 (9th Cir. 2000).

We review de novo “a district court’s denial of summary

judgment on qualified immunity grounds.” Roybal v.

Toppenish Sch. Dist., 871 F.3d 927, 931 (9th Cir. 2017).

A. Section 1983 claims

The Fourth Amendment protects against unreasonable

seizures. Torres v. Madrid, 141 S. Ct. 989, 995 (2021). An

arrest is the “quintessential seizure of the person.” Id.

(internal quotation marks and citation omitted). Qualified

immunity shields a police officer from liability for civil

damages under Section 1983 “unless the officer[] violated a

clearly established constitutional right.” Monzon v. City of

Murrieta, 978 F.3d 1150, 1156 (9th Cir. 2020). Thus, the

qualified-immunity analysis involves two prongs:

(1) whether the officer’s conduct violated a constitutional

right, and (2) whether that right “was clearly established at

the time of the events at issue.” Id. Here, we conclude that

WILLIAMSON V. CITY OF NATIONAL CITY 9

the Officers did not violate Williamson’s Fourth

Amendment rights; therefore, we have no need to address

the clearly-established prong of the analysis.

“In evaluating a Fourth Amendment claim of excessive

force, we ask ‘whether the officers’ actions [wer]e

“objectively reasonable” in light of the facts and

circumstances confronting them.’” Rice, 989 F.3d at 1121

(quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). To

determine whether an officer’s actions were objectively

reasonable, we consider: “(1) the severity of the intrusion on

the individual’s Fourth Amendment rights by evaluating the

type and amount of force inflicted, (2) the government’s

interest in the use of force, and (3) the balance between the

gravity of the intrusion on the individual and the

government’s need for that intrusion.” Id. (quoting Lowry v.

City of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017) (en

banc)) (internal quotation marks omitted). “We must judge

the reasonableness of a particular use of force ‘from the

perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.’” Id. (quoting Graham,

490 U.S. at 396). It is also well-established that police

officers “are not required to use the least intrusive degree of

force possible.” Lowry, 858 F.3d at 1259 (internal quotations

and citation omitted).

1. Type and amount of force

We consider the “specific factual circumstances” of the

case in classifying the force used. Id. at 1256. The nature and

degree of physical contact are relevant to this analysis,

Forrester v. City of San Diego, 25 F.3d 804, 807 (9th Cir.

1994), as are the “risk of harm and the actual harm

experienced,” Nelson v. City of Davis, 685 F.3d 867, 879

(9th Cir. 2012). For example, in Forrester we held that

police officers did not act unreasonably in using “pain

10 WILLIAMSON V. CITY OF NATIONAL CITY

compliance techniques” against protesters because this use

of force was “less significant than most . . . [where] police

did not threaten or use deadly force and did not deliver

physical blows or cuts.” 25 F.3d at 807. Instead, the officers

used “physical pressure . . . on the demonstrators’ limbs in

increasing degrees, resulting in pain.” Id.; see also Johnson

v. County of Los Angeles, 340 F.3d 787, 793 (9th Cir. 2003)

(describing “hard pulling and twisting” used to remove a

fleeing armed robbery suspect from a car as a “minimal

intrusion” under the circumstances). Similarly, in Felarca v

Birgeneau, 891 F.3d 809, 817 (9th Cir. 2018), we held that

police officers’ baton strikes and jabs against a mass of

student protestors who blocked police from accessing tents

erected on campus in violation of university policy was a

minimal use of force under the circumstances. On the other

hand, in Nelson we held that shooting someone in the face

with a pepperball when trying to break up a party was a

“significant” intrusion where “officers were advised not to

shoot pepperballs indiscriminately or at individuals that

were not posing a threat,” “[t]he possibility of serious injury

was apparent to the officers at the time of the shooting,” and

the pepperball caused “significant damage to [plaintiff’s]

eye.” 685 F.3d at 878–79.

Even viewing the evidence in Williamson’s favor, the

type and amount of force used by the Officers in this case

was minimal. The Officers did not strike Williamson, throw

her to the ground, or use any compliance techniques or

weapons for the purpose of inflicting pain on her. Rather,

they held her by her arms and lifted her so they could pull

her out of the meeting room after she went limp and refused

to leave on her own or cooperate in being removed.

Moreover, the inherent risk of two officers pulling

someone who has gone limp and refuses to move by her own

WILLIAMSON V. CITY OF NATIONAL CITY 11

power is not significant. It cannot reasonably be disputed

that the force the Officers used in this case was less

significant than “yanking, pulling, jerking, and twisting” a

person whose legs are pinned underneath a car seat—which

we have deemed a minimal intrusion. Johnson, 340 F.3d

at 792–93. Indeed, the officers’ removing Williamson in the

manner that they did also was a lesser degree of force than

what was used in Forrester and Felarca, where officers used

techniques and weapons to intentionally inflict physical pain

on the protesters. In fact, the protesters in Forrester even

argued that “dragging and carrying” them would have been

a more reasonable use of force than the pain compliance

techniques that the officers used. 25 F.3d at 807.

Finally, Williamson’s injuries—a sprained wrist, mild

swelling, and a torn rotator cuff—though not trivial, are

roughly equivalent to those in Forrester (bruises, pinched

nerve, broken wrist) and much less severe than those in

Johnson (rendered a paraplegic). And in both of those cases,

we concluded that the intrusion at issue was minimal despite

the injuries that occurred. We conclude the same here.

In reaching a contrary conclusion, the district court

focused exclusively on Williamson’s injuries. But that is not

the only factor relevant to this analysis; the type and amount

of force used and the risk of harm it created must also be

considered. See Nelson, 685 F.3d at 879. Consideration of

both the actual harm and the risk of harm is important as the

Fourth Amendment is concerned with reasonableness. Id.

at 878. There can be situations in which the risk of harm

presented is objectively less significant than the actual harm

that results. And if a person reacts more adversely to a use

of force than would be expected objectively, that does not

itself establish that “a reasonable officer on the scene” failed

12 WILLIAMSON V. CITY OF NATIONAL CITY

to appreciate the risks presented and act accordingly. Rice,

989 F.3d at 1121 (citation omitted).

For these reasons, we conclude that the totality of

circumstances in this case establishes that the type and

amount of force that the Officers used was minimal.

2. Governmental interest

Next, we “evaluate the state’s interests at stake by

considering ‘(1) how severe the crime at issue was,

(2) whether the suspect posed an immediate threat to the

safety of the officers or others, and (3) whether the suspect

was actively resisting arrest or attempting to evade arrest by

flight.’” Rice, 989 F.3d at 1121 (quoting Mattos v. Agarano,

661 F.3d 433, 443 (9th Cir. 2011) (en banc)). “Among these

considerations, the ‘most important’ is the second factor—

whether the suspect posed an immediate threat to others.” Id.

(quoting Isayeva, 872 F.3d at 947). “These factors are non-

exhaustive, and we examine the totality of the

circumstances, including the availability of less intrusive

alternatives to the force employed and whether proper

warnings were given.” Id. at 1121–22 (internal citation

omitted). Where an arrestee’s conduct risks the lives or

safety of innocent bystanders, the court also considers her

relative culpability under the second factor. See Scott,

550 U.S. at 384.

It is undisputed that Williamson’s crime was minor, that

she posed no threat to anyone, and that she was not actively

resisting arrest. Nonetheless, the Officers argue that they had

a legitimate interest in removing and arresting her,

particularly where proper warnings were given before they

used any physical force. They also argue that we should

consider Williamson’s “relative culpability” in refusing to

get up. Williamson counters that the governmental interest

WILLIAMSON V. CITY OF NATIONAL CITY 13

was “about as low as it gets,” even considering her relative

culpability.

We conclude that National City’s interest in forcibly

removing Williamson from the city council meeting was

low, but it was not nonexistent. Williamson’s nonviolent

disruption of the city council meeting was a minor offense.

And where Williamson’s actions did not pose any physical

danger to others, we do not consider her relative culpability.

See id. But even if the city’s interest was low given the lack

of exigency posed by threat of harm or other factors, this

does not mean that the city was “required to permit the

‘organized lawlessness’ conducted by the protestors.”

Felarca, 891 F.3d at 818. “Even passive resistance may

support the use of some degree of governmental force if

necessary to attain compliance . . . depend[ing] on the

factual circumstances underlying that resistance.” Nelson,

685 F.3d at 881 (quoting Bryan v. MacPherson, 630 F.3d

805, 830 (9th Cir. 2010)) (internal quotation marks omitted).

Moreover, the risk posed by the protesters was not zero.

While the six who laid down near the podium were docile

and merely refused to leave the area when directed, other

protesters (or people sympathetic to the protesters’

demonstration) who remained in the audience area were

yelling at the officers and at times trying to push into the

podium area. This is not the same strain of risk posed by the

crowds in Forrester and Felarca, but it is nonetheless

relevant in assessing the totality of circumstances that the

officers faced when they decided to remove the protesters

participating in the demonstration rather than allow the

demonstration to continue.

It goes without saying that citizens have a right to

express their disagreement and dissatisfaction with

government at all levels. But they do not have a right to

14 WILLIAMSON V. CITY OF NATIONAL CITY

prevent duly installed government from performing its

lawful functions. See Felarca, 891 F.3d at 818. To conclude

otherwise would undermine the very idea of ordered society.

See id. Officers repeatedly warned the protesters that they

had to leave the front of the meeting room or they would be

arrested, and they refused to comply. Their demonstration

disrupted the city council meeting, which was adjourned “for

order to be restored.” National City’s choice was to allow the

protesters to remain in the city council’s meeting room until

they chose to leave on their own—which the constitution

does not require—or to forcibly remove them. Williamson

has not identified any less intrusive means available to the

Officers for restoring order in the city council room so that

the city’s legitimate business could proceed. Other means of

physically removing her when she refused to leave or

cooperate with being moved, such as using more officers to

carry her or pulling her by her legs instead of her arms,

would not have involved an appreciably smaller risk of

causing pain or injury. In sum, we conclude that, as in

Forrester, National City had a legitimate interest in

“dispersing and removing lawbreakers,” but the extent of its

interest was low because it was not facing a voluminous

crowd acting with a “concerted effort to invade private

property, obstruct business, and hinder law enforcement,” as

was the case in Forrester. 25 F.3d at 807; see also Felarca,

891 F.3d at 818; Nelson, 685 F.3d at 880 (“Although the

officers plainly had an interest in clearing the apartment

complex . . . , the desire to do so quickly, in the absence of

any actual exigency, cannot legitimize the application of

force when it is not otherwise justified.”).

3. Balance of interests

Finally, we must weigh the Officers’ intrusion onto

Williamson’s Fourth Amendment rights through their use of

WILLIAMSON V. CITY OF NATIONAL CITY 15

physical force against National City’s interests in responding

to illegal conduct and restoring order in the city council

meeting room. We conclude that the severity of the Officers’

intrusion and the weight of National City’s interests are

aligned; that is, the city’s interests were low, and the

Officers’ use of force was appropriately minimal.

Williamson testified that she and the other protesters had

decided in advance that they would not willingly leave the

meeting room. The very purpose of their protest was to

disrupt the city council meeting and interfere with the city

conducting its business. Thus, they created a situation in

which the city had to either succumb to the disruption or use

some amount of force to remove the protesters from the

meeting room. The city chose the latter, and the “undisputed

evidence shows that the officers used only the force

reasonably necessary to remove [Williamson] from the

meeting.” Acosta v. City of Costa Mesa, 718 F.3d 800, 826

(9th Cir. 2013) (per curiam).

Williamson could have avoided or reduced the pain and

injury she alleges she suffered from the Officers’ conduct by

cooperating with them and leaving the room under her own

power. She did not. But her choice does not render the

Officers’ conduct unreasonable. To conclude otherwise

would be to discount entirely the City’s legitimate interests

in maintaining order and ensuring that the public’s business

is not circumvented by people engaging in disruptive, albeit

nonviolent, conduct.

Because we conclude that the Officers did not use

excessive force in violation of Williamson’s Fourth

Amendment rights, they are entitled to qualified immunity

as a matter of law.

16 WILLIAMSON V. CITY OF NATIONAL CITY

B. California Bane Act claims

California’s Bane Act requires proof of an underlying

constitutional violation. Reese v. County of Sacramento,

888 F.3d 1030, 1044 (9th Cir. 2018) (“[T]he elements of the

excessive force claim under [the Bane Act] are the same as

under § 1983[.]” (quoting Chaudhry v. City of Los Angeles,

751 F.3d 1096, 1105 (9th Cir. 2014))). Because we conclude

that the Officers did not violate Williamson’s Fourth

Amendment rights, we reverse the district court’s decision

denying summary judgment on Williamson’s Bane Act

claims as well.

REVERSED.