Petition for Writ of Certiorari — Officer Matthew Gregory, et al., Petitioners v. Elise Brown

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

U.S. Court of Appeals for the Ninth Circuit

Memorandum Opinion (February 7, 2023) ............. 1a

Opinion of Justice Nelson, Concurring in Part

and Dissenting in Part (February 7, 2023) .............. 6a

U.S. District Court, C.D. California

District Court Judgment (December 15, 2021) ..... 12a

Order Granting Motion for Good Faith

Settlement and Denying Stipulation to Stay

(November 17, 2021) ............................................... 14a

Order Granting in Part Defendants’ Motion for

Summary Judgment (October 14, 2021) ................ 18a

REHEARING ORDERS

Order Denying Petition for Rehearing

(March 17, 2023) ..................................................... 32a

App.1a

MEMORANDUM* OPINION

(FEBRUARY 7, 2023)

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________

ELISE BROWN, an individual,

Plaintiff-Appellant,

v.

COUNTY OF SAN BERNARDINO, a municipal

entity; CITY OF CHINO, a municipal entity;

MATTHEW GREGORY, Officer;

MADALYN BRILEY, Officer;

DOES, 3-10, inclusive,

Defendants-Appellees.

________________________

No. 21-56357

D.C. No. 5:20-cv-01116-MCS-SP

Appeal from the United States District Court

for the Central District of California

Mark C. Scarsi, District Judge, Presiding

Before: BERZON, R. NELSON, and BADE,

Circuit Judges. Partial Concurrence and Partial

Dissent by Judge R. NELSON.

* This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

App.2a

MEMORANDUM

Elise Brown alleges in this § 1983 action that City

of Chino police officers Madalyn Briley and Matthew

Gregory (collectively, “Defendants”), after they stopped

her car on suspicion of vehicle theft, subjected her to

excessive force and an unlawful arrest in violation of

her Fourth Amendment rights. She appeals the district

court’s grant of summary judgment in favor of Defendants on qualified immunity grounds. Reviewing de

novo, Nehad v. Browder, 929 F.3d 1125, 1132 (9th

Cir. 2019), we affirm in part and reverse in part.

1. When evaluating a Fourth Amendment claim

of excessive force, we ask “whether the officers’ actions

are ‘objectively reasonable’ in light of the facts and

circumstances confronting them,” keeping in mind

three non-exhaustive factors: “the severity of the

crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting

to evade arrest by flight.”1 Graham v. Connor, 490

U.S. 386, 396-97 (1989). “The most important factor

is whether the suspect posed an immediate threat to

the safety of the officers or others.” Thomas v. Dillard,

818 F.3d 864, 889 (9th Cir. 2016).

1 The first and third Graham factors are not disputed: we have

previously concluded that “the crime at issue (stolen vehicle or

plates) [is] arguably severe,” Green v. City & County of San

Francisco, 751 F.3d 1039, 1050 (9th Cir. 2014), and Brown was

not resisting arrest or attempting to evade arrest by flight.

Instead, she was completely compliant with the officers’ instructions.

App.3a

The officers initially acted reasonably by removing

Brown from her car and ascertaining whether she

was armed or posed a threat. However, after Brown

complied immediately with all instructions, the officers

confirmed she was not armed, and “there was no

indication at the scene that [she] posed an immediate

threat to the safety of the officers or others,” Green,

751 F.3d at 1050, a jury could find that it was not

reasonable for Defendants to believe that Brown—an

83-year-old, 5’2”, 117-pound, unarmed, completely

compliant woman—posed any immediate threat.2

Therefore, a jury could find that it was not reasonable

for Defendants to force Brown to her knees and

handcuff her. See id.

As to whether the law was clearly established,

“we need look no further than Graham’s holding that

force is only justified when there is a need for force.”

Blankenhorn v. City of Orange, 485 F.3d 463, 481

(9th Cir. 2007). When the Graham factors “do not

support a need for force, ‘any force used is constitutionally unreasonable.’” Green, 751 F.3d at 1049

(quoting Lolli v. County of Orange, 351 F.3d 410, 417

(9th Cir. 2003)). And, under clearly established law in

this Circuit, “the crime of vehicular theft . . . without

more, does not support a finding that [the suspect]

pose[s] a threat” justifying the use of force when the

suspect is outnumbered, unarmed, and compliant.3

2 Sergeant McArdle testified that he told Brown, “obviously,

you do not look like you were going to be a violent suspect.”

3 The dissent asserts that there are differences in the degree of

force used in Green and the force used here. True, but beside

the point. We rely on Green as clearly established law only with

respect to whether the plaintiff posed an immediate threat

solely by virtue of having been suspected of having stolen a car,

App.4a

Id. at 1049-51. Therefore, the district court erred

when it concluded that Defendants were entitled to

qualified immunity as to the excessive force claim.

2. As to the unlawful arrest claim, even if Brown’s

detention rose to the level of an arrest, and even if

Defendants lacked probable cause to arrest her,

Defendants are entitled to qualified immunity because

they did not violate a clearly established right.

Whether an unlawful arrest violated clearly

established law depends on “whether it is reasonably

arguable that there was probable cause for arrest—

that is, whether reasonable officers could disagree as

to the legality of the arrest such that the arresting

officer is entitled to qualified immunity.” Sialoi v.

City of San Diego, 823 F.3d 1223, 1233 (9th Cir. 2016)

(quoting Rosenbaum v. Washoe County, 663 F.3d

1071, 1076 (9th Cir. 2011)). Brown relies solely on

Green to argue that Defendants’ conduct violated clearly established law. However, the analysis in Green is

not applicable here because that case involved an

unconfirmed, mistaken license plate match. 751 F.3d

at 1045-46. Green thus did not provide adequate

notice to the officers that Brown’s arrest, based on a

confirmed license plate match, violated a clearly

established constitutional right. The district court

did not err when it held that Defendants are entitled

to qualified immunity as to the unlawful arrest claim.

not with regard to whether the force used was reasonable or

whether the level of suspicion with regard to having stolen a

car was higher or lower. The facts indicating that the plaintiff

in Green did not present an immediate threat are materially the

same as the facts at issue here. See Green, 751 F.3d at 1048, 1050.

App.5a

AFFIRMED IN PART and REVERSED IN PART.4

4 The motion to dismiss the City of Chino from this appeal, Dkt.

22, is granted.

App.6a

OPINION OF JUSTICE NELSON,

CONCURRING IN PART AND

DISSENTING IN PART

(FEBRUARY 7, 2023)

NELSON, R., Circuit Judge, Concurring in Part and

Dissenting in Part:

I concur in the majority’s holding to affirm the

district court on Brown’s unlawful arrest claim. But I

dissent from the majority’s holding to reverse the district court on Brown’s excessive force claim. Assuming

without deciding that the defendants used excessive

force, the district court held that the unlawfulness of

the defendants’ conduct was not clearly established.

Brown v. County of San Bernardino, No. 5:20-cv-01116

MCS (SPx), 2021 WL 5935476, at *3-4 (C.D. Cal. Oct.

14, 2021). I would affirm the district court on that

basis.

To put this issue in context, the majority holds it

is clearly established that police who encounter an

unarmed grand theft auto suspect of small stature

are forbidden from instructing the suspect to kneel

for a few seconds and placing the suspect in handcuffs

for a couple minutes while they verify automobile

ownership and confirm nobody else is in the vehicle.

We have never so held. And the majority’s holding

today threatens to chill future police enforcement

and investigation in these serious cases. To be sure,

handcuffing a well-behaved, unarmed, 83-year-old

woman who complied with police direction may violate

standards of societal decorum. In hindsight, it seems

unnecessary. And grandmas around the country may

rightfully wag an experienced finger chastising the

police action here. But that is not the standard for

App.7a

establishing a violation of the United States Constitution. More importantly, we have never held that, in

these circumstances, instructing a grand theft auto

suspect to kneel for a few seconds and handcuffing

her for just three minutes while her ownership of the

vehicle was verified and the vehicle was cleared

constitutes excessive force under the Fourth Amendment.

To be clearly established, the question of whether

the defendants’ use of force was excessive must have

been placed “beyond debate” by existing precedent.

See Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)

(per curiam) (citation omitted). We can deny qualified

immunity only if “a reasonable officer would have

understood her conduct to be unlawful in that situation.” Torres v. City of Madera, 648 F.3d 1119, 1123

(9th Cir. 2011).

The majority holds that it was clearly established

that police cannot use any force against a person who

poses no threat. This mischaracterizes our precedent—

and does so in far too generalized terms. See Kisela,

138 S. Ct. at 1152 (“This Court has repeatedly told

courts—and the Ninth Circuit in particular—not to

define clearly established law at a high level of

generality.” (cleaned up)). The cases the majority

cites to support this holding, Blankenhorn v. City of

Orange, 485 F.3d 463, 481 (9th Cir. 2007) and Green

v. City & County of San Francisco, 751 F.3d 1039,

1049 (9th Cir. 2014), state that force is only justified

when there is a “need for force.” But whether a

person posed a threat is not the only factor in determining whether force was needed—we must also

consider “the severity of the crime at issue” and

“whether [the suspect] is actively resisting arrest or

App.8a

attempting to evade arrest by flight.” Graham v.

Connor, 490 U.S. 386, 396 (1989).

Here, as the majority points out, the “severity of

the crime at issue”—stealing a vehicle—is “arguably

severe.” See Green, 751 F.3d at 1050. But according

to the majority, Green clearly establishes that the

crime of vehicular theft alone does not support using

any force “when the suspect is outnumbered, unarmed,

and compliant.”

It is true that in Green, we found suspicion of a

stolen vehicle alone insufficient to make the force

used in that case constitutional, but we did not find

that any force would have been unjustified. See id.

(suggesting lower degrees of force the officers could

have employed). A jury might find that suspicion of a

stolen vehicle alone does not make the force used

here constitutional either. But the question before us

is whether it was clearly established that the force

used here was unconstitutional. And there are marked

differences between the force used in Green and the

force used here.1 So, while Green may clearly establish

that the degree of force used in that case cannot be

justified based on suspicion of a stolen vehicle alone,

1 It is not “beside the point” that Green involved a higher degree

of force than that used here. The majority claims that under

Green, the crime of vehicular theft alone does not justify using

any force. That is not what Green says. In Green, we merely

held that vehicular theft alone did not justify the force used

there, not that any force was unjustified. See Green, 751 F.3d at

1050. It is very much to the point to explain why the differences

in force between the two cases mean that Green does not clearly

establish that the crime of vehicular theft alone foreclosed the

lower degree of force used here.

App.9a

it does not clearly establish that the degree of force

employed here was unjustified on that basis.

The force employed in Green was far more

intrusive than the force used against Brown. In

Green, we determined the “degree of intrusion was

. . . severe” because the suspect

was ordered out of her vehicle by as many

as six officers, many of whom pointed hand­

guns and a shotgun directly at her. She was

forced to her knees and handcuffed, which

she had difficulty doing due to her knee

problems, and officers continued to train

weapons upon her while she was handcuffed

on the ground. She estimates that she was

in handcuffs for as many as ten minutes

and states in deposition that the experience

has caused her lasting psychological impact.

Id. at 1049. At least three of these key facts differ

here. First, there is no evidence that Brown had knee

problems or any other difficulty kneeling. Second,

the defendants did not train their firearms on Brown

while she was handcuffed; they briefly held their

firearms at a “low ready” position and then merely

kept their firearms unholstered. In Green, we approved

this very firearm position as mitigating the degree of

intrusion. Id. at 1050 (stating that the officers “could

have held their weapons at a ‘low ready’ position

rather than pointing them directly at [the suspect].”).

It is hard to explain how officers who followed the

direction in Green on this issue can now be found to

have clearly violated our direction in Green. Third,

while the suspect in Green was handcuffed for up to

ten minutes, Brown was in handcuffs for no more

than three. Indeed, she was released as soon as the

App.10a

officers verified Brown owned the vehicle and confirmed

nobody else was inside.

The majority also claims Green clearly establishes

that when the government interests “do not support

a need for force, ‘any force used is constitutionally

unreasonable.’” See id. at 1049 (quoting Lolli v.

County of Orange, 351 F.3d 410, 417 (9th Cir. 2003)).

Here, too, Green does not clearly establish that the

government interests do not support a need for force

because the interests here are different.

We assess the government interests by considering:

“(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 he is actively

resisting arrest or attempting to evade arrest by

flight.” Id. (quoting Chew v. Gates, 27 F.3d 1432,

1440 (9th Cir. 1994)). Green does not clearly establish

that the government interests do not support a need

for force here because the first factor—the severity of

the crime at issue—is meaningfully different.

In Green, the officers conducted a high-risk stop

based on an unconfirmed ALPR hit, meaning the

license plate number on the suspect’s vehicle was not

actually listed in the stolen vehicle database. Id. at

1042-43. Here, by contrast, the defendants conducted

a high-risk stop based on a confirmed ALPR hit—the

license plate number on Brown’s vehicle was confirmed

to have been reported as stolen after the on-duty

dispatcher ran the plate number through the California

Law Enforcement Telecommunications System and

contacted the San Bernardino County Sheriff’s Department. Further, unlike the suspect in Green who was

stopped driving “on Mission Street in San Francisco,”

id. at 1042, Brown was stopped outside a prison, which

App.11a

the district court found is “a place known for stolen

vehicles, weapons, and contraband.” Brown, 2021 WL

5935476, at *3 (internal quotations and citation omit­

ted).

The differences between Green and the facts

here matter because “[u]se of excessive force is an

area of the law ‘in which the result depends very much

on the facts of each case,’ and thus police officers are

entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.”

Kisela, 138 S. Ct. at 1153 (quoting Mullenix v. Luna,

577 U.S. 7, 13 (2015) (per curiam)). These differences

might not make the defendants’ conduct here constitutional. This was a frightening experience for Brown.

And the defendants may not have used perfect judgment in handcuffing her and instructing her to kneel.

But what happened here is different from what

happened in Green. These differences mean that Green

does not “squarely govern[]” the specific facts here, so

Green did not clearly establish that the defendants’

use of force against Brown was unlawful. See id.

Qualified immunity “protects all but the plainly

incompetent or those who knowingly violate the law.”

Id. at 1152 (quoting White v. Pauly, 580 U.S. 73, 79

(2017) (per curiam)). Regardless of whether the defendants used excessive force, that does not describe the

defendants’ conduct here. I respectfully dissent.

App.12a

DISTRICT COURT JUDGMENT

(DECEMBER 15, 2021)

UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA

________________________

ELISE BROWN, an individual,

Plaintiff,

v.

COUNTY OF SAN BERNARDINO, a municipal

entity, CITY OF CHINO, a municipal entity, and

DOES 1-10, Inclusive,

Defendants.

________________________

Case No.: 5:20-cv-01116-JGB-SP

Before: Mark C. SCARSI,

United States District Judge.

JUDGMENT

The Motion for Summary Judgment/Partial Summary Judgment filed by Defendant Officers Matthew

Gregory and Madalyn Briley came on for hearing on

August 2, 2021. On October 14, 2021, this Court

granted Defendant Officer Matthew Gregory and

Defendant Officer Madalyn Briley’s Motion for Summary Judgment as to Plaintiff Elise Brown’s First,

Second, Third, and Fourth Claims for Relief on the

grounds that the Defendant Officers are entitled to

qualified immunity. (ECF No. 114.)

App.13a

Defendant County of San Bernardino’s Motion

for Determination of Good Faith Settlement of Plaintiff

Elise Brown’s claims against the County came on for

hearing on November 15, 2021. On November 17,

2021, this Court granted the County’s motion. (ECF

No. 129.)

IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED as follows:

The Court orders that judgment be entered in

favor of Defendant Officer Matthew Gregory and

Defendant Officer Madalyn Briley and against Plaintiff

Elise Brown.

IT IS SO ORDERED.

/s/ Mark C. Scarsi

United States District Judge

DATED: December 15, 2021

App.14a

ORDER GRANTING MOTION FOR GOOD

FAITH SETTLEMENT AND DENYING

STIPULATION TO STAY

(NOVEMBER 17, 2021)

UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

________________________

ELISE BROWN

v.

COUNTY OF SAN BERNARDINO

________________________

Case No.: 5:20-cv-01116-MCS-SP

Before: Mark C. SCARSI,

United States District Judge.

Proceedings

(In Chambers) Order Granting Motion for Good

Faith Settlement (ECF No. 113) and Denying

Stipulation to Stay (ECF No. 125)

Defendant County of San Bernardino (“County”)

moves for an order determining that Plaintiff Elise

Brown and Defendant County entered a settlement

in good faith within the meaning of California Code

of Civil Procedure section 877. (Mot., ECF No. 113.)

Although Defendant Officers Gregory and Briley did

not stipulate to good faith of the settlement, they did

App.15a

not oppose. (Id. at 7.)1 The Court heard the motion

on November 15, 2021.2

To facilitate early and complete settlement in

multi-party litigation, a federal court may determine

that the settlement of a state-law claim was made in

good faith under California Code of Civil Procedure

sections 877 and 877.6. See Mason & Dixon Intermodal,

Inc. v. Lapmaster LLC, 632 F.3d 1056, 1060 (9th Cir.

2011) (affirming district court’s application of Cal.

Civ. Proc. Code § 877, which constitutes substantive

state law); In re Heritage Bond Litig., 546 F.3d 667,

680 (9th Cir. 2008) (discussing purpose of Cal. Civ.

Proc. Code § 877.6). To determine whether a settlement

was made in good faith, courts weigh the following

factors: (1) “a rough approximation of plaintiffs’ total

recovery and the settlor’s proportionate liability”; (2)

“the amount paid in settlement”; (3) “the allocation of

settlement proceeds among plaintiffs”; (4) “a recognition

that a settlor should pay less in settlement than he

would if he were found liable after a trial”; (5) “the

financial conditions and insurance policy limits of

settling defendants”; and (6) “the existence of collusion,

fraud, or tortious conduct aimed to injure the interests

of nonsettling defendants.” Tech-Bilt, Inc. v. WoodwardClyde & Assocs., 38 Cal. 3d 488, 499 (1985). If the

settling parties make a prima facie showing of good

faith, the burden of proof shifts to the party contesting

the settlement to demonstrate that “the settlement is

1 The Officers were dismissed from the case on qualified immunity

grounds two days after this motion was filed. (See ECF Nos. 11314.)

2 No counsel appeared to argue the motion. The Court admonishes

the parties for failure to comply with Local Rule 7-14.

App.16a

so far ‘out of the ballpark’ in relation to these factors

as to be inconsistent with the equitable objectives of

the statute.” Id. at 499-500; accord City of Grand

Terrace v. Superior Ct., 192 Cal. App. 3d 1251, 1261

(1987).

The Tech-Bilt factors weigh in favor of a determination of good faith settlement. After arms-length

negotiations between the parties before a federal

panel mediator and continued informal settlement

discussions, the County agreed to settle all claims

against the County arising from the July 7, 2019

incident for a payment of $10,000 to Plaintiff. (Mot.

7, 11.) Accepting for the purpose of this motion the

County’s unopposed legal argument concerning its

approximate proportionate liability and the estimated

amount of Plaintiff’s damages, (id. at 9-11), the settle­

ment amount is within the reasonable range of the

County’s share of liability. Additionally, there is no

suggestion that the settlement amount must include

attorney’s fees for Plaintiff because her only claim

against the County is negligence. Finally, there is no

evidence of collusion, fraud, or tortious conduct. Weigh­

ing these factors, the Court concludes that Plaintiff

and the County entered their settlement in good faith

pursuant to California Code of Civil Procedure sections

877.6.

The motion is granted. This determination bars

any other joint tortfeasor or co-obligor from any further

claims against the County for equitable comparative

contribution, or partial or comparative indemnity,

based on comparative negligence or comparative fault.

Cal. Civ. Proc. Code § 877.6(c).

All of Plaintiff’s claims have been resolved through

settlement, dismissal, or summary judgment. Accord-

App.17a

ingly, the stipulation to stay the case pending appeal

(ECF No. 125) is denied as unnecessary. The parties

shall confer and file a proposed judgment within 14

days.

IT IS SO ORDERED.

App.18a

ORDER GRANTING IN PART DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

(OCTOBER 14, 2021)

UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA

________________________

ELISE BROWN, an individual,

Plaintiff,

v.

COUNTY OF SAN BERNARDINO, ET AL.,

Defendants.

________________________

Case No.: 5:20-cv-01116 MCS (SPx)

Before: Mark C. SCARSI,

United States District Judge.

ORDER GRANTING IN PART DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT [94]

Defendants Officer Matthew Gregory (“Officer

Gregory”) and Officer Madalyn Briley (“Officer Briley”)

(collectively, “Defendants”) move for summary judgment

on all causes of action against them or, alternatively,

partial summary judgment. Mot. for Summ. J., ECF

No. 94. Plaintiff Elise Brown (“Plaintiff”) filed an

Opposition and Defendants filed a Reply.1 Opp’n, ECF

1 Defendants also submitted objections to evidence. ECF No. 105.

Some objected-to evidence is unnecessary to the resolution of

App.19a

No. 101; Reply, ECF No. 103. The Court heard oral

argument on August 9, 2021. ECF No. 106. For the

following reasons, the Court GRANTS in part Defendants’ Motion for Summary Judgment.

I.

Background

Plaintiff Elise Brown (“Plaintiff”) owns two

vehicles. One vehicle is a cream-colored 2001 Olds­

mobile Aurora and the other vehicle is a dark blue 1991

Oldsmobile Touring Sedan. Pl.’s Additional Material

Facts and Supporting Evidence (“Pl.’s AMFSU”) ¶ 1,

ECF No. 101-2. Plaintiff reported the cream-colored

vehicle as stolen. See id. On July 7, 2019, Plaintiff

was driving the dark blue vehicle near a state prison

when an automated license plate reader (“ALPR”)

read the vehicle’s license plate and found that it

correlated with a reported stolen vehicle. Def.s’ Statement of Uncontroverted Facts and Conclusions of Law

(“Def.s’ SUFCL”) ¶¶ 2, 3, 9. A public safety dispatcher

confirmed the ALPR hit in the California Law Enforcement Telecommunications System and then with the

San Bernardino County Sheriff’s Department because

that department was the “originating agency that

entered the report.” Id. ¶¶ 4-7. The public safety dis­

patcher then communicated this information to the

on-air dispatcher, who in turn communicated this

information to the police officers. Id. ¶¶ 7, 8; Decl. of

Monique Gramillo ISO Mot. for Summ. J. (“Gramillo

Decl.”) ¶¶ 5-10; ECF No. 94-3.

the Motion, and some supports facts not in dispute. As such, the

Court need not resolve many of the objections at this time. To

the extent the Court relies on objected-to evidence in this Order,

the relevant objections are OVERRULED. See Burch v. Regents

of Univ. of Cal., 433 F. Supp. 2d 1110, 1119(E.D. Cal. 2006).

App.20a

Upon receiving the report about the stolen vehicle,

Sergeant McArdle, who is not a defendant, initiated

a high-risk stop of Plaintiff’s vehicle. Def.s’ SUFCL

¶¶ 9, 120. Neither Officer Gregory nor Officer Briley

initiated the high-risk stop, but they did assist with

it. Id. ¶¶ 13, 120. Plaintiff immediately pulled over

and never attempted to flee the police throughout the

entire interaction. Pl.’s AMFSU ¶ 5. During the week

of the incident, Officer Briley was a “trainee” in the

Chino Police Department (“CPD”) Field Training

Officer (“FTO”) Program and Officer Gregory was her

FTO Officer. Decl. of Officer Briley ISO Mot. for Summ.

J. (“Briley Decl.”) ¶¶ 6, 8, ECF No. 94-4. Neither

defendant could see “who was in the vehicle because

of its dark tinted windows.” Def.s’ SUFCL ¶ 94. However, Sergeant McArdle broadcasted over the radio

that “it looked like” only one person occupied the

vehicle. Dep. Tr. of Sergeant McArdle, Ex. I to Diggs

Decl. (“McArdle Dep. Tr.”), 30:6-30:14, ECF No. 1011. Officer Gregory heard this broadcast. Dep. Tr. of

Officer Gregory, Ex. H to Diggs Decl. (“Gregory Dep.

Tr.”), 29:7-29:14, ECF No. 101-1.

Defendants stayed “behind their vehicle doors

with firearms drawn in accordance with their training

and standard police practices.” Def.s’ SUFCL ¶ 15.

They also both pointed their firearms “in the direction

of the stopped vehicle” while waiting for additional

units to arrive. Id. ¶¶ 17-18. Once additional units

arrived, Officer Briley used the PA system to command

Plaintiff to exit the vehicle. Id. at ¶ 20. Officer Briley

commanded Plaintiff “to turn off the vehicle; to throw

the keys outside of the window; to stick both hands

outside of the window; to open the car door from the

outside of the vehicle with her left hand; and to step

App.21a

outside of the vehicle facing away with her hands

up.” Id. ¶ 25. Officer Briley further instructed Plaintiff

to “ . . . lift the collar of her shirt with her right hand

to reveal her waistband[] and to turn around in a

circle to reveal her entire waistband area.” Id. ¶ 26.

Next, “Officer Briley instructed Plaintiff to walk back

towards the sound of her voice.” Id. ¶ 28. Officer

Briley pointed her firearm at Plaintiff and placed

“her finger on the frame of the firearm, outside of the

trigger guard.” Id. ¶ 31. While Officer Briley gave these

commands, Officer Gregory kept his firearm at a

“low-ready position” and “not pointed at Plaintiff.”2

Id. ¶ 47. Once Plaintiff was close to Officer Briley,

Officer Briley placed her firearm in her holster and

grabbed her handcuffs. Id. ¶ 32. Officer Gregory then

started giving commands to Plaintiff. Id. Though Offi­

cer Gregory considered not ordering Plaintiff to get

to her knees, he ultimately decided to order Plaintiff

to get on her knees while Officer Briley handcuffed

her.3 Id. ¶¶ 32, 33; Body Worn Camera Video of

Officer Briley, Ex. A to Diggs Decl. (“Briley BWC

Part 1”), at 12:10-12:18, ECF No. 101-1. Officer Gregory

later stated Plaintiff still could have been “safely []

taken into custody” if she was only standing and not

2 Officer Scott, a non-defendant, also appears to have displayed

a weapon while Officer Briley gave commands to Plaintiff. Body

Worn Camera Video Part 1 of Sergeant McArdle, Ex. C to Diggs

Decl. (“McArdle BWC Part 1”), at 4:21, ECF No. 101-1.

3 Plaintiff also alleges that even after she had handcuffs on,

Officer Scott continued to aim his weapon at her while a police

officer walked her back to the police vehicles. Pl.’s AMSFU ¶ 16.

However, the cited evidence for this allegation does not support

this proposition and does not involve Defendants. See Dep. Tr.

of Elise Brown, Ex. F. to Diggs Decl. (“Brown Dep. Tr.”), 59:1560:21, ECF No. 101-1.

App.22a

on her knees. Dep. Tr. of Officer Gregory, Ex. H. to

Diggs Decl. (“Gregory Dep. Tr.”), 86:24-87:4, ECF No.

101-1.

Plaintiff was on her knees for less than twenty

seconds. Id. ¶¶ 71, 72. Officer Briley had Plaintiff in

her custody for “approximately thirty-eight seconds”

until Officer Briley “released Plaintiff into the custody

of Officer Barber.” Id. ¶ 83. Plaintiff was in handcuffs

for “approximately three minutes” before Officer Barber

released her from handcuffs. Def.’s SUFCL ¶¶ 84-87.

Other police officers then took Plaintiff back to the

parked police vehicles but no police officer ever

placed Plaintiff in a police vehicle. Def.s’ SUFCL

¶ 37. There were at least seven police officers present

at the scene during this incident. Pl.’s AMFSU ¶ 9.

Though Officers Briley and Gregory assumed Plaintiff

was in her fifties or sixties, Plaintiff disputes that

they had this assumption because Sergeant McArdle,

standing in close proximity to Defendants while

Plaintiff got out of her car, stated Plaintiff was an

“old female.” See Def.s’ SUFCL ¶¶ 36, 57; but see

McArdle BWC Part 1 at 5:33.

Throughout this incident, Plaintiff complied with

all of Officer Briley’s commands and “did not appear

to . . . have any mobility or comprehension issues.”

Def.s’ SUFCL ¶ 29. Other police officers at the scene

discovered that a mistake in the stolen vehicle reporting

led to this incident, explained this to Plaintiff, and

advised Plaintiff on how to correct the mistake. Body

Worn Camera Video Part 1 of Sergeant McArdle, Ex.

D to Diggs Decl. (“McArdle BWC Part 2”), 0:31-1:31

ECF No. 101-1. Plaintiff brings claims against Defendants pursuant to 42. U.S.C. § 1983 for excessive force

and unreasonable seizure, detention, and arrest.

App.23a

II. Legal Standard

Summary judgment is appropriate where there

is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.

317, 330 (1986). A fact is material when, under the

governing law, the resolution of that fact might affect

the outcome of the case. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A dispute is genuine

“if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Id. The

burden of establishing the absence of a genuine issue

of material fact lies with the moving party, see

Celotex, 477 U.S. at 322-23, and the court must view

the facts and draw reasonable inferences in the light

most favorable to the nonmoving party, Scott v.

Harris, 550 U.S. 372, 378 (2007). To meet its burden,

“[t]he moving party may produce evidence negating

an essential element of the nonmoving party’s case,

or, after suitable discovery, the moving party may

show that the nonmoving party does not have enough

evidence of an essential element of its claim or defense

to carry its ultimate burden of persuasion at trial.”

Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d

1099, 1106 (9th Cir. 2000). Once the moving party

satisfies its burden, the nonmoving party cannot simply

rest on the pleadings or argue that any disagreement

or “metaphysical doubt” about a material issue of

fact precludes summary judgment. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). There is no genuine issue for trial where the

record taken as a whole could not lead a rational trier

of fact to find for the nonmoving party. Id. at 587.

App.24a

III. Discussion

Defendants seek qualified immunity. Mot. 24-27.4

Qualified immunity protects “government officials

performing discretionary functions” by “shielding them

from civil damages liability as long as their actions

could reasonably have been thought consistent with

the rights they are alleged to have violated.” Anderson

v. Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034, 3038,

97 L. Ed. 2d 523 (1987). Determining whether police

officers are entitled to qualified immunity is an issue

the Court “must resolve . . . ‘at the earliest possible

stage in litigation.’” Torres v. City of Madera, 648

F.3d 1119, 1123 (9th Cir. 2011) (quoting Pearson v.

Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 815, 172

L.Ed.2d 565 (2009)).

“An officer will be denied qualified immunity in

a § 1983 action only if (1) the facts alleged, taken in

the light most favorable to the party asserting injury,

show that the officer’s conduct violated a constitutional

right, and (2) the right at issue was clearly established

at the time of the incident such that a reasonable

officer would have understood her conduct to be

unlawful in that situation.” Torres, 648 F.3d at 1123.

Courts have discretion to consider either prong first.

Pearson, 555 U.S. at 236. Police officers are entitled

to qualified immunity “[i]f the answer to either prong

is no.” Santibanez v. City of Los Angeles, No. 2:17-cv4 Defendants’ Motion is twenty-seven pages. See generally, Mot.

Defendants did not seek leave to file a motion longer than the

maximum twenty-five pages. Initial Standing Order § 9(d).

Plaintiff did not object to this length and the Court will accept

the filing. However, the Court admonishes Defendants to comply

with all rules in future filings.

App.25a

04189-ODW-JCx, 2018 WL 4261893, at *6 (C.D. Cal.

Sept. 6, 2018).

The Court starts its analysis with the second

prong of qualified immunity. Under the second prong,

“the clearly established law must be ‘particularized’

to the facts of the case.” White v. Pauly, 137 S. Ct.

548, 552, 196 L. Ed. 2d 463 (2017) (quoting Creighton,

483 U.S. at 640). Courts often look for whether there

is a “case where an officer acting under similar circumstances . . . was held to have violated the Fourth

Amendment.” Id. Preceding cases do not have to have

“materially similar factual circumstances or even

facts closely analogous” to the current case but should

make it “sufficiently clear such that any reasonable

official” would have understood they were violating

the Fourth Amendment. Reese v. Cnty. of Sacramento,

888 F.3d 1030, 1038 (9th Cir. 2018) (quotation marks

and citations omitted).

The Court will now address whether Defendants

should receive qualified immunity.

Assuming arguendo that both Defendants violated

Plaintiff’s constitutional rights by unlawfully seizing

and detaining her or by using excessive force, they

are still entitled to qualified immunity. First, Plaintiff

argues that the Court should not grant Defendants

qualified immunity because the Ninth Circuit in Green

v. City & Cnty. of San Francisco, 751 F.3d 1039 (9th

Cir. 2014) (“Green”) denied qualified immunity to a

defendant in a case with “materially indistinguishable” facts and because the Ninth Circuit “found that

the rights at issue in the Green case were clearly

established at the time of the 2009 incident giving rise

to the case.” Opp’n 19. The Court disagrees with both

views.

App.26a

First, the facts of both cases are not “materially

indistinguishable.” In Green, the police only had an

unconfirmed hit from an ALPR that misread a license

plate whereas here, Sergeant McArdle received a

confirmed ALPR hit. See Green, 751 F.3d at 1043, 45;

but see Def.s’ SUFCL ¶ 4. In Green, the plaintiff was

“5’6” and 250 pounds” and struggled to kneel because

of “knee problems” whereas here, Plaintiff did not

have any visible physical issues with kneeling and

did not struggle to get to her knees. Green, 751 F.3d

at 1043; but see Pl.’s AMFSU (failing to provide any

evidence Plaintiff struggled to kneel or stand up

after kneeling). In Green, the plaintiff was possibly

in handcuffs for as long as twenty minutes whereas

here, Plaintiff only had handcuffs on for about three

minutes. See Green, 751 F.3d at 1044; but see Def.s’

SUFCL ¶ 87. In Green, the plaintiff was driving “on

Mission Street in San Francisco” whereas here, Plaintiff

was driving near a prison, a place known for “stolen

vehicles, weapons, and contraband.” See Green, 751

F.3d at 1042; but see Def.s’ SUFCL ¶ 9; see also

Reply 7. And, in Green, the police sergeant that made

the decision to conduct a high-risk stop was also the

same police sergeant who issued commands and hand­

cuffed the plaintiff whereas here, Defendants followed

Sergeant McArdle’s decision to conduct a high-risk

traffic stop. See Green, 751 F.3d at 1043; but see Def.s’

SUFCL ¶ 9.

Second, Plaintiff misstates the holding of Green

by stating that it “found that the rights at issue . . .

were clearly established at the time of the 2009 incident

giving rise to the case.” Opp’n 19. In Green, the

Ninth Circuit reversed the district court’s granting of

summary judgment against the plaintiff on the unlaw-

App.27a

ful seizure, de facto arrest without probable cause,

and excessive force claims because “it [could not] be

determined as a matter of law that Green’s Fourth

Amendment rights were not violated.” Green, 751

F.3d at 1051. Instead, the Ninth Circuit found that

the claims should “be determined by a jury.” Id. As

for whether the initiating police sergeant should

receive qualified immunity, the Ninth Circuit found

it could not make a determination on qualified

immunity “as a matter of law” and said the “question

must go before a jury.” Id. at 1053. Green did not find

that any rights were clearly established in the situation that gave rise to the case.

Given both the material differences between

Green and this case as well as Green’s ruling on qualified immunity, the Court finds that Green does not

prevent Defendants from receiving qualified immunity

for both the excessive force claim and the unreasonable seizure, detention, and arrest claim. Further,

Defendants are entitled to qualified immunity for the

unreasonable seizure, detention, and arrest claim

because there is “no evidence or case law that clearly

establishes that a high-risk stop is an unreasonable

level of intrusiveness for a suspected stolen vehicle.”

Theney v. City of Los Angeles, No. CV 15-9602-AB

(AFMX), 2017 WL 10743001, at *9 (C.D. Cal. June 19,

2017) (granting qualified immunity to police sergeants

involved in a high-risk stop even when “it remain[ed]

a question for the jury as to whether those tactics

elevated the stop to an arrest absent probable cause”).

For the excessive force claim, neither Officer Briley

nor Officer Gregory acted in such a way that “a reasonable officer would have understood [their] conduct

to be unlawful in that situation.” Torres, 648 F.3d at

App.28a

1123. Officers Gregory and Briley participated in the

stop near a prison and followed all training procedures during the incident. Though Plaintiff argues

that Officer Gregory acted with excessive force by

standing over her “with his gun aimed downward at

her while she was kneeling and being restrained in

handcuffs” and keeping his gun “unholstered” while

walking back to the police vehicles, the evidence does

not support that he aimed his gun downward at

Plaintiff. Pl.’s AMSFU ¶ 15 (citing McArdle BWC

Part 1 at 7:24-7:43 and Brown Dep. Tr. 60:7-60:21).

Instead, the evidence Plaintiff cites as support for

this inference shows that Officer Gregory had his gun

pointed at the ground and not her body. McArdle BWC

Part 1 at 7:24-7:43; Harris, 550 U.S. at 380 (“When

opposing parties tell two different stories, one of

which is blatantly contradicted by the record, so that

no reasonable jury could believe it, a court should not

adopt that version of the facts for purposes of ruling

on a motion for summary judgment.”); Gomez v. City

of Los Angeles, No. CV 19-4718 PA (GJSx), 2020 WL

4032673, at *5 (C.D. Cal. Mar. 27, 2020) (applying

Harris to evidence from body worn camera videos).

Officer Gregory’s positioning of his gun in this circumstance did not violate clearly established law. Cf.

Robinson v. Solano Cnty., 278 F.3d 1007, 1015 (9th Cir.

2002) (stating that “ . . . pointing a gun to the head of

an apparently unarmed suspect during an investigation can be a violation of the Fourth Amendment,

especially where the individual poses no particular

danger”) (emphasis added). And though Plaintiff argues

Green shows that it is clearly established that the

officers’ conduct violated the law, Green does not support Plaintiff’s position. Supra.

App.29a

Alternatively, Officers Gregory and Briley are

both entitled to qualified immunity because both

were acting at the direction of Sergeant McArdle, an

officer who gave “facially valid direction[s]”. See

Theney, 2017 WL 10743001, at *9; see also United

States v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976).

“A facially valid direction from one officer to another

to stop a person or a vehicle insulates the complying

officer from assuming personal responsibility or

liability for his act done in obedience to the direction.”

Robinson, 536 F.2d at 1299. This Court in Theney

granted qualified immunity to two police officers who

“acted on the direction of” a third officer. Theney,

2017 WL 10743001, at *9. The third officer made the

call “for a helicopter, a supervisor, and backup” and

the district court granted qualified immunity to the

responding officers for following a “facially valid

direction” despite the possibility of a constitutional

violation. See id. at *2, *9. In contrast, the defendant

in Green initiated the high-risk stop. Green, 751 F.3d

at 1043 (“Sergeant Kim then decided to make a

‘high-risk’ or ‘felony’ stop.”) Here, Sergeant McArdle

initiated the high-risk stop and Defendants assisted

with the stop. Def.s’ SUFCL ¶¶ 9, 13. Sergeant Mc­

Ardle’s initiation of the high-risk stop was a “facially

valid direction” given to Defendants. Robinson, 536

F.2d at 1299. That Officer Gregory decided to have

Plaintiff kneel does not change the fact that he was

still acting pursuant to Sergeant McArdle’s direction

to conduct a high-risk stop. Gregory Dep. Tr. 80:4-11;

81:10-14 (stating that while officers usually order individuals to get on their knees during a high-risk stop,

there are certain instances during a high-risk stop

where an officer will not give that order). The potential

color and model discrepancy, as well as the Sergeant

App.30a

McArdle’s comment that Plaintiff was an “old female,”

also does not change this analysis because Officers

Gregory and Briley were still following Sergeant Mc­

Ardle’s direction. Robinson, 536 F.2d at 1299; Decl.

of Officer Gregory ISO Mot. for Summ. J (“Gregory

Decl.”) ¶¶ 18, 34, ECF No. 94-5 (providing reasons

for why a color discrepancy may exist after receiving

a license plate match and stating that Plaintiff

“appeared to be . . . in her mid-to late 50’s”); Decl. of

Officer Briley ISO Mot. for Summ. J (“Briley Decl.”)

¶ 30, ECF No. 94-4 (stating she perceived Plaintiff to

be “in her mid-to late-50’s”); McArdle BWC Part 1 at

5:35 (identifying Plaintiff as an “old female).5

Though Plaintiff experienced an unfortunate

encounter with police officers on July 7, 2019, the

law was not clearly established at the time of the

incident that Defendants’ actions were “unlawful in

that situation.” Torres, 648 F.3d at 1123. The Court

thus grants qualified immunity on that basis and

declines to analyze whether Plaintiff suffered any

constitutional violations. Pearson, 555 U.S. at 237;

Santibanez, 2018 WL 4261893, at *6.

IV. Conclusion

For the foregoing reasons, the Court GRANTS

qualified immunity to Officers Gregory and Briley

and declines to address other parts of Defendants’

Motion for Summary Judgment.

5 Officer Briley also followed, at least in part, Officer Gregory’s

“facially valid direction” and could likely be given qualified

immunity on that basis as well. Robinson, 536 F.2d at 1299;

Gregory Decl. ¶¶ 24, 29 (outlining some of Officer Gregory’s

directions given to Officer Briley).

App.31a

IT IS SO ORDERED.

/s/ Mark C. Scarsi

United States District Judge

Dated: October 14, 2021

App.32a

ORDER DENYING PETITION

FOR REHEARING

(MARCH 17, 2023)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________

ELISE BROWN, an individual,

Plaintiff-Appellant,

v.

COUNTY OF SAN BERNARDINO, a municipal

entity; CITY OF CHINO, a municipal entity;

MATTHEW GREGORY, Officer;

MADALYN BRILEY, Officer;

DOES, 3-10, inclusive,

Defendants-Appellees.

________________________

No. 21-56357

D.C. No. 5:20-cv-01116-MCS-SP

Central District of California, Riverside

Before: BERZON, R. NELSON, and BADE,

Circuit Judges.

ORDER

Judge Bade and Judge Berzon have voted to deny

the appellees’ petition for rehearing. Judge Nelson

has voted to grant the petition for rehearing. Judge

Bade has voted to deny the appellees’ petition for

App.33a

rehearing en banc, and Judge Berzon has so recommended. Judge Nelson has voted to grant the petition

for rehearing en banc. The full court has been advised

of the petition for rehearing en banc and no judge

has requested a vote on whether to rehear the matter

en banc. See Fed. R. App. P. 35. The petition for rehearing and the petition for rehearing en banc are denied.