Katz v. USA.

• Decision Date: 10 August 1999
• Docket Number: No. 98-16298,98-16298
• Citation: 194 F.3d 962
• Parties: (9th Cir. 1999) ELLIOT M. KATZ; IN DEFENSE OF ANIMALS, Plaintiffs-Appellees, v. UNITED STATES OF AMERICA; CORBIN LEE, Major; BRIAN O'NEILL; STEVEN PARKER, Sergeant; GLYNN C. MALLORY, JR., General, Defendants; and DONALD SAUCIER, Private, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 962

194 F.3d 962 (9th Cir. 1999)

ELLIOT M. KATZ; IN DEFENSE OF ANIMALS, Plaintiffs-Appellees, v. UNITED STATES OF AMERICA; CORBIN LEE, Major; BRIAN O'NEILL; STEVEN PARKER, Sergeant; GLYNN C. MALLORY, JR., General, Defendants; and DONALD SAUCIER, Private, Defendant-Appellant.

No. 98-16298

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 10, 1999--San Francisco, California

Filed October 22, 1999

[Copyrighted Material Omitted]

R. Joseph Sher, Barbara L. Herwig and Edward Himmelfarb, United States Department of Justice, Washington, D.C., for the defendant-appellant.

David H. Williams and J. Kirk Boyd, Public Interest Lawyers Group, San Francisco, California, for the plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of California D. Lowell Jensen, District Judge, Presiding. D.C. No. CV-94-03466-DLJ.

Before: David R. Thompson and Susan P. Graber, Circuit Judges, and Earl H. Carroll, District Judge¹.

THOMPSON, Circuit Judge:

Army Private Donald Saucier ("Saucier"), acting as a military police officer, arrested Elliot M. Katz ("Katz") during a public event at the San Francisco Presidio. Katz was holding up a sign when he was arrested. According to Katz, Saucier and another officer grabbed him, tore the sign out of his hands, dragged him fifty feet, and violently tossed him into a van. Katz brought a Bivens action against Saucier and others for violations of his constitutional rights. See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics , 403 U.S. 388 (1971). Saucier filed a motion for summary judgment, contending he was entitled to qualified immunity. The district court denied Saucier's motion as to Katz's Fourth Amendment claim, which was grounded on Saucier's alleged use of excessive force in effecting Katz's arrest. Saucier appeals.

Saucier contends that, although our circuit has a long line of cases in which we have held that the reasonableness inquiry on the merits of a Fourth Amendment excessive force claim is the same as the reasonableness inquiry posed by a qualified immunity defense, these cases conflict with our en banc holding in Hammer v. Gross, 932 F.2d 842, 850 (9th Cir. 1991). We disagree, and affirm the district court.

FACTUAL BACKGROUND²

This case arises out of Katz's arrest for his conduct during a speech given by Vice President Gore at the Presidio Army base in San Francisco. Katz, an animal rights activist, seeks damages from Saucier for violating his Fourth Amendment rights by using excessive force. This claim is one of multiple claims brought by Katz and In Defense of Animals ("IDA"), an animal rights organization of which Katz is president, against the United States, a national parks official, and various military officials.

On September 24, 1994, the public was invited to attend a special presentation by Vice President Gore, followed by other speakers, on the main post at the Presidio. The event was to celebrate the anticipated conversion of most of the Presidio to a national park. The conversion of the Presidio was a subject of public controversy, with animal rights activists concerned about the possibility of animal experimentation at the Army's Letterman Hospital.

Katz, a veterinarian who was then sixty years old, and other members of IDA were among the several hundred members of the public who attended the event. Katz arrived early and sat at the front of the public seating area, which was separated from the stage and dignitary seating area by a waist-high cyclone fence. He was wearing a visible, knee-high leg brace because of a broken foot. He was not wearing a shoe on his injured foot.

On the day of the event, Saucier was working as a military police officer. In his deposition, Saucier testified that he had been told by his superiors that demonstrations would not be allowed. He had been instructed to "diffuse the situation if it arises," but not to "draw that much attention if we didn't haveto." Saucier admits that Katz was "pointed out as one of the potential, you know, activists" and that he knew "who this person was . . . the person we need[ed] to keep an eye on."

Either before or as Vice President Gore began speaking, Katz silently removed a cloth banner from his jacket. As Gore was speaking, Katz started to unfold the banner and walked to the barrier. The banner measured approximately four feet by three feet and stated "Please Keep Animal Torture Out of Our National Parks." Katz intended to hang the banner over the fence so that Vice President Gore and the other speakers could read it.

According to Katz's deposition, before he could fully unfurl the banner, a military police officer "grabbed [him] from behind and somebody else tore the banner away. " These individuals were Defendants Saucier and Steven Parker, an Army sergeant. Katz did not try to prevent them from taking the banner. The two military police officers then each took one of Katz's arms and "started sort of picking[Katz] up and kind of walking [him] out, kind of like very hurriedly, sort of like the bum's rush." They took Katz to a military van parked behind the seating area and "violently threw" him inside. As the military police officers "shoved" Katz into the vehicle, he was able "to kind of prevent" his head from smashing into the floor of the van. He "was able to stop the downward and the forward motion by just catching [himself] so that [he] didn't smash [himself]." With "a great deal of effort," he was barely able "to prevent [himself] from getting seriously hurt."

The military police officers never spoke to Katz. They closed the door to the van, leaving Katz alone in the vehicle for about twenty minutes. At some point, the military police officers placed another IDA member in the van, and they searched and handcuffed Katz and the other IDA member. They then drove Katz and the other IDA member to a military police station. After being briefly detained, Katz was released and allowed to drive home. Katz was never informed of the basis for his detention or cited with any violation of any law or regulation.

PROCEDURAL HISTORY

Katz and IDA filed a lawsuit in the district court alleging multiple claims against the United States, a national parks official, and various military officials. Against Saucier, Katz alleged claims predicated upon violations of the First Amendment, by depriving Katz of his right to free speech, and the Fourth Amendment, by arresting Katz without probable cause and with excessive force. Katz asserted the same claims against Sergeant Parker, but at the time of this appeal Parker had not been served.

As to Katz's First Amendment-based claim, the district court granted summary judgment in favor Saucier and several of the military officials on the ground of qualified immunity. The district court determined that, "[i]n light of the transitional stage of the Presidio on September 24, 1994, . . . the [c]onstitutional rights of protestors at the base were not well settled on that date. [Thus], a reasonable military officer could have concluded that preventing protests at the base was [c]onstitutional." The district court also granted summary judgment in favor of Saucier on Katz's false arrest claim, holding that Saucier was entitled to qualified immunity. The district court, however, denied Saucier's motion for summary judgment on Katz's excessive force claim.

The district court described in detail the factual disputes between the parties concerning the amount of force used, the nature of the risk posed by Katz, and whether and to what degree Katz resisted arrest. The district court concluded that "[a] triable issue of fact exists as to whether [the] defendants employed excessive force in removing Katz from the crowd and placing him in the police van." On the issue of qualified immunity, the district court held that the law governing the use of force in an arrest was clearly established. Stating that "the qualified immunity inquiry is the same as the inquiry on the merits" in an excessive force claim, the district court concluded that "a question of fact [exists] regarding whether a reasonable officer could believe [Saucier's] use of force was lawful."³

Saucier timely filed this interlocutory appeal of the district court's order denying him qualified immunity.

DISCUSSION

I. Standard of Review

We review de novo a denial of summary judgment on qualified immunity. See Knox v. Southwest Airlines , 124 F.3d 1103, 1105 (9th Cir. 1997).

II. Jurisdiction

We have jurisdiction under the collateral order doctrine to review an interlocutory appeal of the district court's order denying summary judgment on a qualified immunity defense. See Armendariz v. Penman, 75 F.3d 1311, 1316 (9th Cir. 1996) (citing Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)). The collateral order doctrine, however, "does not sanction review of a district court's order denying the defendant's motion for summary judgment on qualified immunity grounds when the basis for the defendant's motion is that the evidence in the pretrial record is insufficient to create a genuine issue of fact for trial." Id. at 1317 (citing Johnson v. Jones, 515 U.S. 304, 313-19 (1995)). Thus, on summary judgment, our review is generally "limited to determining whether clearly established law existed at the time of the incident that [the defendant's] actions could have violated." Watkins v. City of Oakland, 145 F.3d 1087, 1091 (9th Cir. 1998). We also have jurisdiction, however, to review the question whether there is any genuine issue of material fact as to whether an officer's conduct "met the [qualified immunity] standard of `objective legal reasonableness.' " Behrens v. Pelletier, 516 U.S. 299, 313 (1996); see also Collins v. Jordan, 110 F.3d 1363, 1370 (9th Cir. 1996) ("An appellate court [also ] has jurisdiction to consider defendants' assertion that the dispute of fact is not material.").

III. Qualified Immunity Analysis in an...