Brooks v. City Of Seattle

• Decision Date: 26 March 2010
• Docket Number: No. 08-35526.,08-35526.
• Citation: 599 F.3d 1018
• Parties: Malaika BROOKS, Plaintiff-Appellee, v. CITY OF SEATTLE, Defendant, and Steven L. Daman, in his capacity as an officer of the Seattle Police Department; Donald M. Jones, in his individual capacity as an officer of the Seattle Police Department; Juan M. Ornelas, in his individual capacity as an officer of the Seattle Police Department, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

599 F.3d 1018

Malaika BROOKS, Plaintiff-Appellee, v. CITY OF SEATTLE, Defendant, and Steven L. Daman, in his capacity as an officer of the Seattle Police Department; Donald M. Jones, in his individual capacity as an officer of the Seattle Police Department; Juan M. Ornelas, in his individual capacity as an officer of the Seattle Police Department, Defendants-Appellants.

No. 08-35526.

United States Court of Appeals Ninth Circuit.

Argued and Submitted: July 10, 2009.

Filed: March 26, 2010.

COPYRIGHT MATERIAL OMITTED

Karen L. Cobb and Theron A. (Ted) Buck, Stafford Frey Cooper, Seattle, WA for the defendants-appellants.

Eric Zubel, Eric Zubel, PC, Seattle WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington, Richard A. Jones, District Judge Presiding. D.C. No. 2:06-cv-01681-RAJ.

Before: CYNTHIA HOLCOMB HALL DIARMUID F. O'SCANNLAIN, and MARSHA S. BERZON, Circuit Judges.

Opinion by Judge HALL; Dissent by Judge BERZON.

HALL, Circuit Judge:

Sergeant Steven Daman, Officer Juan Ornelas, and Officer Donald Jones (collectively "the Officers") appeal the district court's denial of the Officers' motion for summary judgment on Malaika Brooks's § 1983 and state law claims. Brooks had sued the City of Seattle, the Seattle Police Department ("SPD") and its chief, as well as the Officers, based on the Officers' alleged excessive force when they tased her three times to effect her arrest. The district court denied the Officers' motion for summary judgment, ¹ finding that they were not entitled to qualified immunity for their actions. The Officers challenge that denial. This court has jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.

I.

On November 23, 2004, SPD Officer Juan Ornelas stopped Brooks for speeding in a school zone.² The situation deteriorated rather quickly. Brooks claimed she had not been speeding, took her driver's license out of Officer Ornelas's ticket book and only reluctantly gave it back, and then repeatedly refused to sign a Notice of Infraction ("Notice") regarding her speeding violation.³ When SPD Officer Jones arrived at the scene, Officer Ornelas told him that Brooks had refused to sign the Notice and was being uncooperative. Officer Jones tried to obtain her signature himself but Brooks also refused his entreaties, despite assurances that signing was not tantamount to admitting the violation. She accused Officer Jones of lying to her about the import of signing, ⁴ suggested he wasbeing racist, and became upset, repeating "I'm not signing, I'm not signing" over and over. Throughout, she remained in the car with the ignition running.

Officer Ornelas then called his supervisor, SPD Sergeant Daman. When Sergeant Daman arrived, Brooks continued to refuse to sign the Notice. Sergeant Daman then asked her "if [she] was going to sign the ticket." When she refused, he told Officers Ornelas and Jones to "[b]ook her." They attempted to follow those orders.

Brooks refused to leave her car, remaining in it with the ignition running and her door shut. Officer Jones then showed Brooks his Taser, explaining that it would hurt "extremely bad" if applied. Brooks told them she was pregnant and that she needed to use the restroom. The officers discussed where to tase her, deciding on her thigh. Officer Jones demonstrated the Taser for her. Brooks still remained in the car, so Officer Ornelas opened the door and reached over to take the key out of the ignition, dropping the keys on the floorboard.⁵

Officer Ornelas then employed a pain compliance technique, bringing Brooks's left arm up behind her back, whereon Brooks stiffened her body and clutched the steering wheel in order to frustrate her removal from the car. Officer Jones discharged the Taser against Brooks's thigh, through her sweat pants, which caused Brooks "tremendous pain." She began to yell and honk the car's horn.

Within the next minute, Officer Jones tased her two more times, against her shoulder and neck, the latter being the only area of exposed skin. Brooks was unable to get out of the car herself during this time because her arm was still behind her back.⁶ The third tasing moved Brooks to the right, at which point Officers Ornelas and Jones were able to extract her from the car through a combination of pushing and pulling. She was immediately seen by medical professionals, and two months later delivered a healthy baby.

Brooks was charged with (1) violation of Seattle Municipal Code 11.59.090 for refusing to sign the Notice, and (2) resisting arrest. She was convicted of the first charge, but the jury hung on the second, which was later dismissed.

Brooks then filed this action against the Officers, asserting a claim under 42 U.S.C. § 1983 and assault and battery claims under state tort law for the alleged excessive force. The district court denied the Officers' motion for summary judgment on those claims, finding a clearly established constitutional violation that deprived the Officers of qualified immunity on both the federal and state claims.

II.

We review de novo a denial of summary judgment based on qualified immunity. See Lee v. Gregory, 363 F.3d 931, 932 (9th Cir.2004). Our review is limited to the question of whether, assuming all conflicts in the evidence are resolved in Brooks'sfavor, the Officers would be entitled to qualified immunity as a matter of law. Id.

III.

Qualified immunity entitles the Officers "not to stand trial or face the other burdens of litigation" on the § 1983 claim, provided their conduct did not violate a clearly established federal right. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The qualified immunity inquiry asks two questions: (1) was there a violation of a constitutional right, and, if so, then (2) was the right at issue "clearly established" such that it would have been clear to a reasonable officer that his conduct was unlawful in that situation? ⁷ See Saucier v. Katz 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled on other grounds by Pearson v. Callahan, — U.S. —, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). If the Officers' actions do not amount to a constitutional violation, the violation was not clearly established, or their actions reflected a reasonable mistake about what the law requires, they are entitled to qualified immunity. See Blankenhorn v. City of Orange, 485 F.3d 463, 471 (9th Cir.2007).

A. Constitutional Violation

In her complaint, Brooks alleged that the Officers violated her constitutional rights by using excessive force during her arrest.

1. Probable Cause

Beginning in her opposition to the Officers' motion for summary judgment, Brooks has argued that the Officers did not have probable cause to arrest her for refusing to sign the Citation to Appear because she did not so refuse. Therefore she contends, there was no need for force, and any force used was constitutionally unreasonable. See Headwaters Forest Def v. County of Humboldt, 240 F.3d 1185, 1204 (9th Cir.2000). As an initial matter, we note that "establishing a lack of probable cause... does not establish an excessive force claim, " Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004). Thus, the result, even if we were to find no probable cause, is not as obvious as Brooks would make it. Indeed, an arrestee's resistance may support the use of force regardless of whether probable cause existed. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir.2001) (finding an arrestee's actions in "stiffen[ing] her arm and attempt[ing] to pull it away" to be resistance justifying the officer's use of force in handcuffing regardless of whether there was probable cause to arrest her).

Nonetheless, the existence of probable cause may be considered as a part of the totality of circumstances affecting the excessive force analysis. See Smith v. City of Hemet, 394 F.3d 689 (9th Cir.2005) (permitting consideration of whether the officer's conduct "violated applicable police standards" in assessing the reasonableness of the force used). It also impacts the question of state law immunity on the assault and battery claims. See Wash. Rev. Code § 9A. 16.020(1) (finding force used by a police officer not unlawful "[w]henever necessarily used... in the performance of a legal duty"); Staats v. Brown, 139 Wash.2d 757, 991 P.2d 615, 627-28 (2000) (describing state qualified immunity on assault and battery as dependent upon whether the force used to effect the arrest was excessive). Thus, we consider whether the Officers had probable cause to arrest Brooks.

"Probable cause exists when the facts and circumstances within the officer's knowledge are sufficient to cause a reasonably prudent person to believe that a crime has been committed." Lassiter v. City of Bremerton, 556 F.3d 1049, 1053 (9th Cir. 2009). Though we agree with the district court that the Officers did have probable cause to arrest Brooks, we arrive at that conclusion by a different path.⁸

Brooks concedes that she refused to sign the Notice, which amounted to a violation of Seattle Municipal Code S 11.59.090(c). For the purposes of the Fourth Amendment, this is sufficient to find probable cause. See Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 1606-07, 170 L.Ed.2d 559 (2008) (holding that an arrest based on probable cause does not violate the Fourth Amendment, even if the relevant criminal offense is non-arrestable under state law).

However, because Virginia v. Moore does not answer the question of whether the Officers were following departmental standards or are entitled to state law immunity, we march on. Brooks's arguments are all based on the premise that (1) she could not be arrested for refusing to sign the Notice and (2) although she could be arrested for refusing to sign the Citation, she never received it. However, she does not argue that she was detained longer than was reasonably necessary under Section 46.64.015 or that her conduct during...