Daniel Andrews v. City of Henderson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL ANDREWS, No. 20-17053

Plaintiff-Appellee,

D.C. No.

v. 2:18-cv-01625-

JCM-BNW

CITY OF HENDERSON; PHILLIP

WATFORD; KARL LIPPISCH,

Defendants-Appellants, OPINION

and

HENDERSON POLICE DEPARTMENT;

JOSEPH W. EBERT; R. ADAMS; K.

LAPEER; K. LIPPISCH,

Defendants.

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted August 9, 2021

San Francisco, California

Filed May 23, 2022

2 ANDREWS V. CITY OF HENDERSON

Before: Eugene E. Siler, * Morgan Christen, and

Danielle J. Forrest, Circuit Judges.

Opinion by Judge Forrest

SUMMARY **

Civil Rights

The panel affirmed the district court’s denial, on

summary judgment, of qualified immunity to two police

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

alleging defendants used excessive force, in violation of the

Fourth Amendment, when, without warning, they tackled

plaintiff to the ground, fracturing his hip.

Defendants believed they had probable cause to arrest

plaintiff for a series of armed robberies and forcibly tackled

him as he was leaving a Nevada state courthouse. The panel

held that the use of force was substantial. Although plaintiff

was suspected of a serious crime, viewing the evidence in

his favor, the detectives knew that he was not armed and was

not posing an immediate threat to anyone as he exited the

courthouse. Under these circumstances, a reasonable jury

could find that the degree of force used against plaintiff

violated his Fourth Amendment right against excessive

force, and the detectives were not entitled to summary

*

The Honorable Eugene E. Siler, United States Circuit Judge for the

U.S. Court of Appeals for the Sixth Circuit, 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.

ANDREWS V. CITY OF HENDERSON 3

judgment on the question of whether they committed a

constitutional violation.

The panel further held that Blankenhorn v. City of

Orange, 485 F.3d 463 (9th Cir. 2007) clearly established—

and thus put a prudent officer on notice—that an officer

violates the Fourth Amendment by tackling and piling on top

of a relatively calm, non-resisting suspect who posed little

threat of safety without any prior warning and without

attempting a less violent means of effecting an arrest.

The panel held that it lacked pendent appellate

jurisdiction over the district court’s denial of the City of

Henderson’s separate motion for summary judgment

because the issue of the City’s § 1983 municipal liability was

not inextricably intertwined with the detectives’ claim of

qualified immunity.

COUNSEL

Michael J. Oh (argued), Senior Assistant City Attorney;

Nicholas G. Vaskov, City Attorney; Office of the City

Attorney, Henderson, Nevada; for Defendants-Appellants.

Peter Goldstein (argued), Peter Goldstein Law Corp., Las

Vegas, Nevada, for Plaintiff-Appellee.

4 ANDREWS V. CITY OF HENDERSON

OPINION

FORREST, Circuit Judge:

Plaintiff Daniel Andrews exited a Nevada state

courthouse and, without warning, two plainclothes

detectives tackled him to the ground, fracturing his hip.

Andrews was not resisting, fleeing, or committing a crime.

Moreover, because he had just passed through the

courthouse’s security checkpoint, including a metal detector

and x-ray scanner, the detectives knew that Andrews was

unarmed. Andrews sued the detectives and the City of

Henderson (collectively, Defendants) under 42 U.S.C.

§ 1983 for excessive force in violation of the Fourth

Amendment. The detectives moved for summary judgment

arguing that they are protected by qualified immunity, and

the City moved for summary judgment arguing Andrews

could not establish municipal liability under any of the

theories that he advanced. The district court denied the

detectives’ motion and denied the City’s motion except as to

Andrews’s ratification theory. We affirm.

I. Background

A. Factual History 1

After a series of armed robberies at various businesses in

Henderson, Nevada, detectives with the Henderson Police

1

Because this case comes to us on review of the district court’s

ruling on Defendants’ motion for summary judgment, we view the facts

in the light most favorable to Andrews. Rice v. Morehouse, 989 F.3d

1112, 1120 (9th Cir. 2021). But “[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.’” Id. (quoting Scott v. County of San

Bernardino, 903 F.3d 943, 952 (9th Cir. 2018)).

ANDREWS V. CITY OF HENDERSON 5

Department (HPD) began surveilling a woman suspected of

assisting a man with a recent robbery. On January 3, 2017,

the woman left a gas station in a car driven by an unidentified

man, and several plainclothes detectives followed behind.

The detectives learned from the lead detective on the case

that the driver was Andrews and that they had probable cause

to arrest him for the armed robberies. The detectives

followed the pair to the Henderson Justice Facility parking

lot and watched as they exited the vehicle.

The detectives observed Andrews and the woman walk

into the Henderson Municipal Courthouse. To enter the

courthouse, the pair had to pass through a security

checkpoint that included a metal detector and x-ray scanner.

One detective followed Andrews and the woman into the

courthouse and tracked their location. The other detectives

waited outside so they could arrest Andrews after he exited

the courthouse because they knew he would be unarmed at

that point, having passed through the courthouse’s metal

detectors. All of the detectives were in plain clothes.

Twenty minutes after entering the courthouse, Andrews

and the woman reemerged, and Detectives Phillip Watford

and Karl Lippisch walked slowly toward them without

identifying themselves. When Detective Watford was

approximately a foot away from Andrews, he lunged and

tackled him to the ground. Detective Lippisch also jumped

toward Andrews and Detective Watford and landed on top

of them as they fell. Detective Lippisch kept his weight on

Detective Watford’s back as Detective Watford handcuffed

Andrews’s arms behind his back. The detectives’ takedown

6 ANDREWS V. CITY OF HENDERSON

resulted in an acetabular 2 fracture of Andrews’s hip, which

required two surgeries.

After the arrest, Detective Watford prepared a “use of

force” report detailing the event. Several of Detective

Watford’s supervisors reviewed the report and video footage

of the arrest and determined that the use of force did not

violate HPD policy or warrant further action.

B. Procedural History

Andrews sued Detectives Watford and Lippisch and the

City under 42 U.S.C. § 1983, asserting a Fourth Amendment

excessive-force claim against the detectives and a

municipal-liability claim against the City. Andrews alleged

three theories of municipal liability: (1) failure to train;

(2) unconstitutional custom, practice, or policy; and

(3) ratification. The Defendants moved for summary

judgment, the detectives arguing that they were entitled to

qualified immunity and the City arguing that it did not fail to

train its officers on the proper use of force or have a policy

or custom allowing officers to use excessive force. The City

also contended that Andrews did not identify an individual

with final policy-making authority who ratified the

detectives’ allegedly unconstitutional conduct.

The district court denied the detectives’ motion for

summary judgment raising qualified immunity. It concluded

that there was a genuine factual dispute regarding whether

the detectives used objectively reasonable force against

Andrews. It also determined that the law in this circuit,

including Blankenhorn v. City of Orange, 485 F.3d 463, 477,

2

An acetabular fracture is caused by a high-energy impact to the

bone.

ANDREWS V. CITY OF HENDERSON 7

481 (9th Cir. 2007), “clearly established” that “force is only

justified when there is a need for force” and that it is

excessive to “gang tackle” a person “who was suspected of

a minor crime, posed no apparent threat to officer safety, and

could be found not to have resisted arrest.” Viewing the facts

in the light most favorable to Andrews, the district court

found that the detectives knew Andrews was unarmed and

was not resisting arrest, attempting to flee, or committing a

crime when they arrested him. Thus, the district court

concluded that “there was simply no clear need for force.”

The district court granted in part and denied in part the

City’s motion for summary judgment. It rejected Andrews’s

longstanding-policy-or-practice and failure-to-train theories,

concluding that he failed to present any supporting evidence.

But it denied summary judgment on Andrews’s ratification

theory, concluding that the detectives’ contradicting

versions of events, “in addition to the fact that the

[detectives] were not disciplined, raises a genuine dispute as

to whether their decision to use excessive force was

ratified.” 3 Defendants timely appealed.

II. Discussion

A. Qualified Immunity

Qualified immunity shields government officials from

civil damages unless an official “violate[s] a clearly

established constitutional right.” Monzon v. City of

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

3

Although the City argued that Andrews failed to “put forth

evidence indicating that [the detectives’] superiors are final

policymakers,” the district court declined to address this point because

the City raised it in reply, which denied Andrews “an adequate

opportunity to respond.”

8 ANDREWS V. CITY OF HENDERSON

determining whether a police officer is entitled to qualified

immunity, courts ask two questions: (1) whether “the

officer’s conduct violated a constitutional right[,]” and

(2) “whether the right was clearly established in light of the

specific context of the case.” Rice v. Morehouse, 989 F.3d

1112, 1120 (9th Cir. 2021) (quoting Tuuamalemalo v.

Greene, 946 F.3d 471, 476 (9th Cir. 2019)).

Under the collateral order doctrine, we have jurisdiction

over interlocutory appeals from denials of qualified

immunity. Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d

938, 944–45 (9th Cir. 2017); see 28 U.S.C. § 1291. We have

the authority to review such denials “because [q]ualified

immunity is immunity from suit, not just a defense to

liability,” and “[t]he immunity is effectively lost if a case is

erroneously permitted to go to trial.” Isayeva, 872 F.3d at

944–45 (internal quotation marks and citations omitted). But

our jurisdictional power is limited to legal issues, not factual

disputes. Williamson v. City of Nat’l City, 23 F.4th 1146,

1151 (9th Cir. 2022). In other words, “[a] public official may

not immediately appeal a fact-related dispute about the

pretrial record, namely, whether or not the evidence in the

pretrial record was sufficient to show a genuine issue of fact

for trial.” Estate of Anderson v. Marsh, 985 F.3d 726, 731

(9th Cir. 2021) (quoting Foster v. City of Indio, 908 F.3d

1204, 1210 (9th Cir. 2018)) (internal quotation marks

omitted). But we can decide whether “taking the facts in the

light most favorable to the non-moving party, the defendants

are entitled to qualified immunity.” Isayeva, 872 F.3d at 945.

And in making this determination, we exercise de novo

review. Hines v. Youseff, 914 F.3d 1218, 1227 (9th Cir.

2019).

ANDREWS V. CITY OF HENDERSON 9

1. Fourth Amendment violation

The central question in determining whether law

enforcement officers violated the Fourth Amendment by

using excessive force is “whether the officers’ actions are

objectively reasonable in light of the facts and circumstances

confronting them.” Williamson, 23 F.4th at 1151 (internal

quotation marks and citation omitted); see also Lombardo v.

City of St. Louis, 141 S. Ct. 2239, 2242 (2021). “All

determinations of unreasonable force ‘must embody

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.’” Scott v.

Henrich, 39 F.3d 912, 914 (9th Cir. 1994) (quoting Graham

v. Connor, 490 U.S. 386, 396–97 (1989)).

“Neither tackling nor punching a suspect to make an

arrest necessarily constitutes excessive force.” Blankenhorn,

485 F.3d at 477 (quoting Graham, 390 U.S. at 396)

(emphasis added). Instead, whether a constitutional violation

occurred depends on “(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.” Rice, 989 F.3d

at 1121 (quoting Lowry v. City of San Diego, 858 F.3d 1248,

1256 (9th Cir. 2017) (en banc)) (internal quotation marks

omitted). We address each of these considerations in turn.

a. Type and amount of force

“We consider the ‘specific factual circumstances’ of the

case in classifying the force used.” Williamson, 23 F.4th at

1151–52 (quoting Lowry, 858 F.3d at 1256). Relevant to our

10 ANDREWS V. CITY OF HENDERSON

analysis are the “nature and degree of physical contact” and

“the risk of harm and the actual harm experienced.” Id.

at 1152 (internal quotation marks and citations omitted).

“The presence of non-minor physical injuries . . . is certainly

relevant in evaluating the degree of the Fourth Amendment

intrusion.” Bryan v. MacPherson, 630 F.3d 805, 824–25 (9th

Cir. 2010).

A physical tackle that results in severe injury may

constitute a significant use of force. In Rice, for example, we

held that an officer’s takedown maneuver that resulted in the

suspect falling face-first onto the pavement was a

“substantial” and “aggressive” use of force where the

suspect suffered “‘extreme pain’ immediately following his

arrest and long-term physical pain for which he received

medical treatment.” 989 F.3d at 1121 (quoting Santos v.

Gates, 287 F.3d 846, 853 (9th Cir. 2002)). Likewise, in

Santos, we held that an officer’s use of force was “quite

severe” where the suspect taken to the ground “suffered a

broken vertebra which caused him both pain and

immobility.” 287 F.3d at 853–54; see also Blankenhorn,

485 F.3d at 479 (finding that officers acted unreasonably in

“gang-tackling” a plaintiff); Meredith v. Erath, 342 F.3d

1057, 1061 (9th Cir. 2003) (finding that grabbing a suspect

by the arms, forcibly throwing her to the ground, and

twisting her arms could constitute excessive force). In

contrast, in Jackson v. City of Bremerton, 268 F.3d 646, 650,

652 (9th Cir. 2001), we found that a broken finger during a

routine arrest was a “minimal” intrusion.

In this case, the detectives forcibly tackled Andrews to

the ground with enough force to fracture his hip. The injury

resulted in “excruciating pain” and required two surgeries.

Under these circumstances, we conclude that this use of

force by the detectives was “substantial” and, therefore,

ANDREWS V. CITY OF HENDERSON 11

“must be justified by the need for the specific level of force

employed.” Rice, 989 F.3d at 1121 (quoting Santos, 287 F.3d

at 855 and Bryan, 630 F.3d at 825).

b. Governmental interest

We evaluate the government’s interest in using force by

considering three primary factors: “(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.” Williamson, 23 F.4th at 1153

(internal quotation marks and citation omitted). “[T]he ‘most

important’ is the second factor—whether the suspect posed

an immediate threat to others.” Id. These factors are not

exclusive, however, and must be considered under the

totality of the circumstances, including whether “less

intrusive alternatives” were available to the officers and

whether the officers gave “proper warnings” before using

force. Rice, 989 F.3d at 1122.; see Bryan, 630 F.3d at 831

(“[W]hile by no means dispositive, that [the officer] did not

provide a warning before deploying the [taser] and

apparently did not consider less intrusive means of effecting

[plaintiff’s] arrest factor significantly into our Graham

analysis.”).

Applying these factors, we conclude that the

government’s interest in using substantial force was minimal

here. Armed robbery is a serious crime that poses an obvious

risk of violence, and this factor suggests that the government

may have an interest in using force to effect an arrest. See

S.R. Nehad v. Browder, 929 F.3d 1125, 1136 (9th Cir. 2019),

cert. denied sub nom. Browder v. Nehad, 141 S. Ct. 235

(2020). But we must consider this fact in the full context that

the officers faced, including that Andrews was not engaged

in any violent or nonviolent criminal conduct when he was

12 ANDREWS V. CITY OF HENDERSON

tackled without warning by the detectives. Moreover, taking

the evidence in the light most favorable to Andrews, the

detectives knew that he was not armed when they tackled

him as he exited the courthouse. That is why the officers

chose to act when they did. Thus, the risk of violence

attributable to Andrews’s suspected crimes was mitigated by

the specific circumstances in which the officers chose to act.

Nor does the evidence show that Andrews otherwise

posed a threat to the officers or members of the public. He

was not exhibiting any aggressive behavior, and there were

no bystanders within his close proximity when he exited the

courthouse. And because Andrews did not know the

detectives’ identities before they tackled him, there is no

dispute that he was not resisting arrest or attempting to flee.

Additionally, the detectives do not challenge the district

court’s finding that they failed to present “undisputed facts

to suggest that tackling [Andrews] was the only option

available to them.” See Young v. County of Los Angeles,

655 F.3d 1156, 1166 (9th Cir. 2011) (“That [the defendant

employed intermediate force] given the availability of other,

less intrusive measures makes clear just how limited was the

government’s interest in the use of significant force.”);

Bryan, 630 F.3d at 831. They also do not dispute that they

gave Andrews no warning before they tackled him. See

Glenn v. Washington County, 673 F.3d 864, 876 (9th Cir.

2011) (“[W]arnings should be given, when feasible, if the

use of force may result in serious injury.” (internal quotation

marks and citation omitted)). Given this broader context, the

nature of Andrews’s suspected crime does not establish a

strong governmental interest in using significant physical

force against him.

In arguing to the contrary, the detectives assert that they

had a strong interest in using force because Andrews was

ANDREWS V. CITY OF HENDERSON 13

suspected of committing multiple armed robberies and,

therefore, posed “legitimate, significant risks” to the safety

of others outside the courthouse. We do not suggest that the

severity of the suspected crime has no bearing on whether a

suspect poses a threat to officers or the public—of course it

does. See Browder, 929 F.3d at 1136; Monzon, 978 F.3d

at 1157. But the serious nature of a suspected crime does not

necessarily give rise to a strong governmental interest in the

use of significant physical force. See Browder, 929 F.3d

at 1136.

Our precedent requires that we focus on the immediate

threat of harm. That is, we consider the “danger a suspect

poses at the time force is applied.” Id. (emphasis added); see

id. (“Even if [the suspect] had made felonious threats or

committed a serious crime prior to [the officer’s] arrival, he

was indisputably not engaged in any such conduct when [the

officer] arrived, let alone when [the officer] fired his

weapon.”); Smith v. City of Hemet, 394 F.3d 689, 703 (9th

Cir. 2005) (holding that the suspected domestic violence

crime provided minimal justification for the officers’ use of

force where the suspect “was standing on his porch alone and

separated from his wife” and “had no guns or weapons in his

possession”).

Thus, as we have explained, although Andrews was

suspected of a serious crime, viewing the evidence in his

favor, the detectives knew that he was not armed and was

not posing an immediate threat to anyone as he exited the

courthouse. Accordingly, because any immediate threat to

safety was minimal, “the nature of the crime at issue

provides little, if any, basis for the officers’ use of physical

force.” Smith, 394 F.3d at 703.

14 ANDREWS V. CITY OF HENDERSON

c. Balance of interests

Finally, we weigh whether the detectives’ “degree of

force used was warranted by the governmental interests at

stake,” Deorle v. Rutherford, 272 F.3d 1272, 1282 (9th Cir.

2001), and we conclude that it is not. The detectives’ interest

in using significant force against Andrews is undermined by

their knowledge that he was unarmed; his lack of any

aggressive, threatening, or evasive behavior; and the

detectives’ failure to provide any prior warning or consider

less intrusive alternatives before forcibly tackling him to the

ground. Under these circumstances, a reasonable jury could

find that the degree of force used against Andrews violated

his Fourth Amendment right against excessive force, and the

detectives are not entitled to summary judgment on the

question of whether they committed a constitutional

violation. See Rice, 989 F.3d at 1124.

2. Clearly Established Right

Even if a government official violates a constitutional

right, the official is entitled to qualified immunity unless the

violated right was clearly established at the time of the

incident. Id. at 1120. A constitutional right is clearly

established if it is “sufficiently clear that every reasonable

official would have understood that what he is doing violates

that right.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7

(2021) (per curiam) (quoting Mullenix v. Luna, 577 U.S. 7,

11 (2015)).

The Supreme Court has increasingly reiterated that to

meet this standard a right “must be defined with specificity”

rather than “at a high level of generality.” City of Escondido

v. Emmons, 139 S. Ct. 500, 503 (2019) (per curiam) (citation

omitted); see City of Tahlequah v. Bond, 142 S. Ct. 9, 11

(2021). “Such specificity is ‘especially important in the

ANDREWS V. CITY OF HENDERSON 15

Fourth Amendment context,’ where it is ‘sometimes difficult

for an officer to determine how the relevant legal doctrine,

here excessive force, will apply to the factual situation the

officer confronts.’” Bond, 142 S. Ct. at 11–12 (quoting

Mullenix, 577 U.S. at 12). Thus, “[a]lthough this Court’s

case law does not require a case directly on point for a right

to be clearly established, existing precedent must have

placed the statutory or constitutional question beyond

debate.” Rivas-Villegas, 142 S. Ct. at 7–8 (quoting White v.

Pauly, 137 S. Ct. 548, 551 (2017)) (internal quotation marks

omitted).

In Blankenhorn, we analyzed whether a three-officer

“gang tackle” 4 of a person suspected of misdemeanor

trespass at a shopping mall amounted to excessive force

under the Fourth Amendment. 485 F.3d at 467–70. In that

case, when the suspect refused an officer’s orders to kneel

and be handcuffed, several officers “immediately . . . jumped

on [him]” and tackled him to the ground while punching him

several times in the face and body. Id. at 469–70.

In concluding that a rational jury could find that the

officers’ use of force was objectively unreasonable, we

found it significant that the severity of the suspected offense

was minimal and the officers’ “only bases for suspecting that

[the plaintiff] was interfering with mall business were his

presence at the mall, his previous banishment, his known

gang association, and the attention by security.” Id. at 478.

We also concluded that the suspect “did not pose a serious

threat to the officers’ or others’ safety” where the officers

stood around with their arms folded and did not prevent mall

4

Blankenhorn does not define “gang tackle,” but it is clear that this

term refers to an incident where more than one officer uses bodily force

to bring an individual “to the ground.” 485 F.3d at 478.

16 ANDREWS V. CITY OF HENDERSON

patrons from entering the area. Id. Finally, although the

suspect verbally refused to comply with one officer’s

direction that he kneel down, we held that a reasonable jury

could conclude that the officers’ use of force was

unreasonable because they did not employ a lesser means of

force before immediately tackling the plaintiff, and the

plaintiff did not resist a lesser means of force before he was

tackled. Id. at 478–79.

We hold that Blankenhorn clearly established—and thus

“put a prudent officer on notice”—that an officer violates the

Fourth Amendment by tackling and piling on top of a

“relatively calm,” non-resisting suspect who posed little

threat of safety without any prior warning and without

attempting a less violent means of effecting an arrest.

485 F.3d at 478, 481. As discussed above, these are the basic

facts of this case when viewed in the light most favorable to

Andrews. He was not fleeing, resisting arrest, or actively

committing a crime, and the detectives knew that he was

unarmed and specifically planned their tackle for that

moment because of that knowledge. Accordingly, after

Blankenhorn, it was “beyond debate” that their actions were

objectively unreasonable under the circumstances. White,

137 S. Ct. at 551.

The only relevant distinction between this case and

Blankenhorn is the nature of the suspected crimes—trespass

versus armed robbery. The detectives claim that this

distinction warrants reversal because Blankenhorn is only

factually similar when analyzed at an inappropriately “high

level of generality.” Rivas-Villegas, 142 S. Ct. at 8. We

reject this assertion. In both cases, the suspects posed no

immediate threat to the officers or public safety when they

were arrested. And other than the nature of the suspected

crime, the facts of this case are either analogous to or more

ANDREWS V. CITY OF HENDERSON 17

favorable to Andrews than the facts in Blankenhorn. For

example, the suspect in Blankenhorn was “rude,

uncooperative, and verbally abusive” before his arrest.

485 F.3d at 469. But here, Andrews had no interaction with

the detectives before they tackled him so they had no sense

of whether he would be cooperative or not. Accordingly, we

hold that Blankenhorn involved sufficiently similar facts to

“move [this] case beyond the otherwise hazy borders

between excessive and acceptable force.” Rivas-Villegas,

142 S. Ct. at 9.

This conclusion is further buttressed by our precedent

clearly establishing that a suspect’s previous violent conduct

does not justify non-trivial force where the suspect poses no

immediate safety threat. See, e.g., Smith, 394 F.3d at 702. In

Smith, for example, a woman called the police to report

domestic abuse by her husband and informed them “that [he]

did not have a gun” and “there were no weapons in the

house.” Id. at 693. While arresting the husband, the officers

pepper sprayed him, threw him to the ground, and ordered a

dog to attack him. Id. at 694. In holding that the officers used

excessive force, we explained that the severity of the

husband’s crime provided “little” justification for the

officers’ use of substantial force because “[the husband] was

standing on his porch alone and separated from his wife,”

and because “[he] had no guns or other weapons in his

possession and there were none in the house.” Id. at 702–03.

There, as in this case, we held that the government’s interest

in using significant force was low as there was no “basis for

believing that [the husband] was armed or that he posed an

immediate threat to anyone’s safety.” Id. at 702.

We have held this general principle to be true even in

cases where the officers did know that a suspect was armed.

See George v. Morris, 736 F.3d 829, 839 (9th Cir. 2013)

18 ANDREWS V. CITY OF HENDERSON

(finding that officers used excessive force against a

knowingly armed domestic violence suspect where his wife

“was unscathed and not in jeopardy when deputies arrived,”

and the man was “not in the vicinity” but “on the couple’s

rear patio.”); Glenn, 673 F.3d at 873 (finding that the

officer’s use of a bean bag gun against a suicidal suspect

brandishing a knife was excessive where he was not

threatening anyone but himself); Harris v. Roderick,

126 F.3d 1189, 1203 (9th Cir. 1997) (finding that deadly

force against an armed suspect who had engaged in a shoot-

out the previous day was not justified where he was running

back inside the cabin where he resided and made no

threatening movements). Thus, in addition to Blankenhorn,

we find this precedent provided the detectives with ample

notice that their surprise takedown violated Andrews’s

Fourth Amendment rights. See Rivas-Villegas, 142 S. Ct.

at 9.

In sum, it was clearly established before the events of

this case that the Fourth Amendment prohibits multiple

officers from physically tackling a “relatively calm” suspect

without providing any warning where the suspect is not

posing an immediate danger to anyone, resisting arrest, or

trying to flee unless the officers first attempt a less intrusive

means of arrest. Blankenhorn, 485 F.3d at 481.

For all these reasons, we affirm the district court’s denial

of qualified immunity at summary judgment.

B. Pendent Jurisdiction

Although this case comes before us on interlocutory

appeal, the City requests that we exercise pendant

jurisdiction over the district court’s denial of its separate

motion for summary judgment on Andrews’s ratification

theory. “A municipality is not entitled to assert the defense

ANDREWS V. CITY OF HENDERSON 19

of qualified immunity.” Hernandez v. City of San Jose,

897 F.3d 1125, 1139 (9th Cir. 2018) (quoting Huskey v. City

of San Jose, 204 F.3d 893, 902 (9th Cir. 2000)). “Thus the

rule . . . that individual defendants can appeal from the denial

of a motion for a summary judgment to obtain review of the

merits of their qualified immunity defense does not empower

a federal court to consider the denial of a municipality’s

motion for a summary judgment in a § 1983 action.” Huskey,

204 F.3d at 902.

Nevertheless, a court may exercise pendent jurisdiction

and “review an otherwise non-appealable ruling when it is

‘inextricably intertwined’ with . . . the order properly before

[the court].” Doe v. Regents of Univ. of Cal., 891 F.3d 1147,

1154 (9th Cir. 2018) (quoting Meredith v. Oregon, 321 F.3d

807, 812–13 (9th Cir. 2003)). This standard is met only when

the issues are “(a) . . . so intertwined that [the Court] must

decide the pendent issue in order to review the claims

properly raised on interlocutory appeal, or (b) resolution of

the issue properly raised on interlocutory appeal necessarily

resolves the pendent issue.” Hernandez, 897 F.3d at 1139–

40. We interpret this standard “narrowly” and apply it only

in “extremely limited” circumstances. Id. at 1139 (quoting

Puente Ariz. v. Arpaio, 821 F.3d 1098, 1109 (9th Cir. 2016)).

We conclude that the City’s § 1983 municipal liability is

not inextricably intertwined with the detectives’ claim of

qualified immunity. The detectives’ qualified immunity

defense turns on whether they violated clearly established

federal law, but the City’s liability turns on whether an

“official with final policy-making authority ratified a

subordinate’s unconstitutional decision or action and the

basis for it.” Gillette v. Delmore, 979 F.2d 1342, 1346–47

(9th Cir. 1992). We need not decide the ratification issue in

order to resolve whether the detectives are entitled to

20 ANDREWS V. CITY OF HENDERSON

qualified immunity. See Hernandez, 897 F.3d at 1139–40.

Nor does our qualified immunity decision “necessarily

resolve[]” whether the City ratified the detectives’

unconstitutional use of force. See id.; Swint v. Chambers

County Comm’n, 514 U.S. 35, 50–51 (1995). Accordingly,

we lack pendent appellate jurisdiction over the denial of the

City’s motion for summary judgment on Andrews’s

ratification theory.

AFFIRMED.