Tatum v. City and County of San Francisco, 04-15055.

Citation441 F.3d 1090
Decision Date03 April 2006
Docket NumberNo. 04-15055.,04-15055.
PartiesVerlie TATUM, and Verlie Tatum as successor in interest of Glenn Fullard, deceased, Plaintiff-Appellant, v. CITY AND COUNTY OF SAN FRANCISCO; Leslie Smith; Mac Chan; Mario Busalacchi; Tadao Yamaguchi; Miguel Torres; John Garrity; Douglass Carr, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Gregory M. Haynes, Daly City, CA, for the plaintiff-appellant.

Robert A. Bonta (argued) and Jonathan U. Lee, City and County of San Francisco, San Francisco, CA, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California; Saundra B. Armstrong, District Judge, Presiding. D.C. No. CV-02-04785-SBA.

Before JOHN T. NOONAN, PAMELA ANN RYMER, and RONALD M. GOULD, Circuit Judges.

GOULD, Circuit Judge.

Verlie Tatum appeals from the district court's order granting summary judgment to the defendants, and dismissing her claims brought under 42 U.S.C. § 1983. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

I1

On the morning of March 2, 2001, San Francisco Police Officer Leslie Smith was waiting for a tow truck to remove a stolen car located in San Francisco's Tenderloin neighborhood. Across the street, Smith saw Glenn Fullard begin to kick the side door of the Tenderloin police station. Smith yelled at Fullard to stop kicking the door, but Fullard did not stop. Officer Smith then approached Fullard and asked him what he was doing. Fullard did not respond and he continued to kick the door, so Smith pulled Fullard away from the door and again asked him what he was doing. Fullard did not reply, but he began to walk away from the police station after Officer Smith told Fullard to "get out of here."

As Smith was walking back across the street, he heard Fullard kicking the police station's door again. Based on Fullard's odd behavior, as well as his bloodshot eyes, heavy perspiration, and slurred speech, Smith suspected that Fullard might be intoxicated or under the influence of a controlled substance. Smith pulled Fullard away from the door again and explained to him that he could be arrested if he did not stop. Fullard still did not respond, so Smith asked to see Fullard's identification. Fullard did not comply with Officer Smith's request, at which point Smith told Fullard that he would be placed in handcuffs.

According to Officer Smith's deposition testimony, he positioned Fullard's left arm behind his back in a bar arm control hold and asked Fullard to place his right arm behind his back. Instead of complying, Fullard spun to his left, partially escaping Smith's grasp. Officer Smith instructed Fullard to stop resisting, but Fullard continued turning to his left. Smith was able to maintain control over Fullard by positioning him against a nearby wall. Smith told Fullard to calm down. Fullard continued to struggle. Smith then used the bar arm control hold to force Fullard to the ground. Smith placed a radio call for assistance. Officers Chan, Busalacchi, Torres, and Yamaguchi responded at once. Against continued resistance from Fullard, the officers placed him in handcuffs.

Officer Smith then sent a radio message that he no longer needed assistance. He and Chan remained at the scene to monitor Fullard while the other officers left. According to Officer Smith's testimony, Fullard lay on his stomach for about a minute after he was handcuffed. Officers Smith and Chan next positioned Fullard so that he lay on his side. About two minutes later, Smith sent a radio message requesting an ambulance after Smith noticed that Fullard's breathing was heavy and that his eyes were bulging. As Smith monitored Fullard's condition, Fullard's breathing became shallow. Smith sent another radio message asking that his previous request for an ambulance be given priority. Smith and Chan monitored Fullard while they waited for the ambulance to arrive, but neither officer attempted to perform cardiopulmonary resuscitation (CPR) on Fullard. Smith did, however, place his right ear to Fullard's mouth to verify that he was still breathing. Smith also checked Fullard's pulse and observed his chest movements. When paramedics arrived about ten minutes later, they could not detect Fullard's breathing or pulse and one paramedic observed that Fullard was on his back. They pronounced Fullard dead at the scene. The coroner concluded that Fullard died of cocaine toxicity.

In March 2002, Verlie Tatum, Fullard's mother, commenced this civil rights action against the named defendants: Officers Smith, Chan, Busalacchi, Torres, and Yamaguchi, as well as their supervising officers, Garrity and Carr, and the City and County of San Francisco. Tatum brought suit in San Francisco Superior Court, seeking damages for her son's wrongful death and other torts under California law. Tatum also sought to recover damages under 42 U.S.C. § 1983 as Fullard's successor in interest,2 alleging that he was wrongfully arrested and subjected to excessive force in violation of his rights under the Fourth and Fourteenth Amendments. On the basis of the federal question presented, one of the defendants removed this action to federal court. The district court granted summary judgment on all claims to all of the defendants in December 2003.

II

Before addressing the specifics of Tatum's appeal, we note that to recover damages under 42 U.S.C. § 1983, Tatum must prove by a preponderance of the evidence that the defendants deprived Fullard of a constitutional right while acting under color of state law. See Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir.2001).3

A

We first address Tatum's false arrest claim. Tatum contends that Fullard's arrest violated the Fourth and Fourteenth Amendments because Officer Smith did not have probable cause to believe that Fullard had committed a crime. Tatum urges that the motivation for Fullard's arrest was his failure to produce identification upon Smith's request and she argues that an arrest on this basis violates the Fourth Amendment under our decisions in Carey v. Nevada Gaming Control Bd., 279 F.3d 873, 880 (9th Cir.2002) (holding that a defendant's arrest under two Nevada statutes requiring a person to identify himself to a police officer violated the Fourth Amendment), and Martinelli v. City of Beaumont, 820 F.2d 1491, 1494 (9th Cir. 1987) (stating that a defendant's arrest for refusing to identify herself during a Terry stop violated the Fourth Amendment).

Tatum's arguments do not persuade us. A police officer has probable cause to arrest a suspect without a warrant if the available facts suggest a "fair probability" that the suspect has committed a crime. See United States v. Valencia-Amezcua, 278 F.3d 901, 906 (9th Cir. 2002); United States v. Fixen, 780 F.2d 1434, 1436 (9th Cir.1986). An officer who observes criminal conduct may arrest the offender without a warrant, even if the pertinent offense carries only a minor penalty. See Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) ("If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender."). If the facts known to an arresting officer are sufficient to create probable cause, the arrest is lawful, regardless of the officer's subjective reasons for it. See Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) ("[a police officer's] subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause"). Under Devenpeck, the subjective reason that Officer Smith arrested Fullard is irrelevant so long as the available facts suggested that Fullard was committing a crime.

Thus, Tatum's citation to Carey and Martinelli is inappropriate because in those cases the only possible basis for probable cause was the defendant's refusal to produce identification. See Carey, 279 F.3d at 880 (observing that Carey was arrested for violating a statute requiring him to identify himself to the police, even though there was no probable cause to suspect that he had committed any other crime); see also Martinelli, 820 F.2d at 1492 (noting that a police officer arrested the defendant only "`for delaying a lawful police investigation by refusing to identify herself'"). Here, however, crediting Tatum's version of events and assuming that Smith arrested Fullard because he did not produce his identification, the undisputed facts show that there was probable cause to arrest Fullard.

Fullard's behavior and appearance created a "fair probability" that he had committed a crime. Fullard was kicking the door to a police station for no apparent reason; he disobeyed commands to stop; he was verbally unresponsive, except by incomprehensible mumbling; he was perspiring heavily; and his eyes were bloodshot. There was a fair probability that Fullard was under the influence of a controlled substance, a crime under California law. Moreover, Fullard's behavior warranted Smith's belief that Fullard had violated other provisions of the California penal code, including those prohibiting disorderly conduct, vandalism, and disturbing the peace. Viewed objectively, the facts available to Officer Smith established probable cause to arrest Fullard, so Smith's subjective motivation for arresting Fullard is irrelevant and the defendants were entitled to summary judgment regarding Tatum's false arrest claim. See Devenpeck, 543 U.S. at 153, 125 S.Ct. 588.

B

We turn to Tatum's excessive force claims. Tatum contends that Officer Smith's use of a control hold to secure Fullard prior to his arrest constituted excessive force. We disagree. The Fourth Amendment does not prohibit a police officer's use of reasonable force during an arrest. See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104...

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