Barlow v. Ground

Citation943 F.2d 1132
Decision Date05 September 1991
Docket NumberNo. 90-55819,90-55819
PartiesBrian BARLOW, Plaintiff-Appellant, v. Officer George GROUND, I.D. # 9129, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Page 1132

943 F.2d 1132
Brian BARLOW, Plaintiff-Appellant,
Officer George GROUND, I.D. # 9129, et al., Defendants-Appellees.
No. 90-55819.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted May 16, 1991.
Decided Sept. 5, 1991.

Page 1133

Thomas F. Homann and George Weingarten, San Diego, Cal., for plaintiff-appellant.

Page 1134

James M. Chapin, Deputy City Atty., San Diego, Cal., for defendants-appellees.

Appeal from the United States District Court for the Southern District of California.

Before PREGERSON, BRUNETTI and T.G. NELSON, Circuit Judges.

PREGERSON, Circuit Judge:

Brian Barlow sued George Ground, other San Diego police officers and the City of San Diego. He alleged violations of constitutional rights under 42 U.S.C. § 1983 as well as state law claims of assault and battery, false arrest, and negligent supervision. The district court granted summary judgment in favor of the defendants. We reverse in part and affirm in part.


On June 7, 1986, Brian Barlow marched in a Gay Pride Parade in San Diego. Several San Diego police officers were assigned to monitor the parade, which drew a sizable contingent of anti-gay hecklers. After an interchange between Barlow and the police, the facts of which are in dispute, a struggle ensued and Barlow was taken into custody. During the scuffle, Barlow bit two of the officers, drawing blood. Barlow was charged with two counts of battery against a police officer and one count of obstructing a police officer.

Police took Barlow to the hospital for treatment of injuries he sustained during the arrest. In response to police questioning at the hospital, Barlow acknowledged that he is gay. The police then asked Barlow if he had AIDS. He said no. Police asked again and received the same reply. Finally, after continued questioning, Barlow said, "for the officers' sake, you better take it that I do [have AIDS]."

The officers then asked permission to take Barlow's blood so they could test it for AIDS. Barlow refused to consent. Police then took Barlow to the San Diego Police Department, where they took a blood sample without consent and without a warrant.

After this warrantless seizing of Barlow's blood, police sought a warrant that would grant them authority to seize a second sample and test it for AIDS. The warrant police obtained authorize a second seizure, but did not authorize testing. Pursuant to the warrant, police then took a second sample of Barlow's blood.

Later, police obtained an order authorizing them to test the second blood sample. The California Court of Appeals held that the warrant authorizing the collection of the second blood sample was invalid for lack of probable cause. The California Supreme Court denied review and ordered the appellate decision depublished. Neither blood sample was ever tested.

A jury unanimously acquitted Barlow of the criminal charges. He then filed this suit in state court. The defendants removed the case to the federal district court. The district court granted the defendants' motion for summary judgment, and Barlow filed this timely appeal.


We review de novo a grant of summary judgment. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). Summary judgment is proper where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We reverse a grant of summary judgment if, viewing the evidence in the light most favorable to the non-moving party, there are genuine issues of material fact or if the district court erroneously applied the relevant law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).


We consider first the issues arising out of Barlow's arrest at the parade. We hold that the district court improperly granted summary judgment to the defendants on the issue of the propriety of the detention and arrest of Barlow, the reasonableness of the force used, the availability of qualified immunity, and the question whether

Page 1135

Barlow can recover as damages the expenses he incurred in his successful defense against the criminal charges.

The district court held that on the basis of the undisputed facts, the officers had proper grounds to detain Barlow and probable cause to arrest him. We disagree.

The fourth amendment permits police to detain an individual only if they have an articulable and reasonable suspicion that the individual has committed or is about to commit a crime. United States v. Woods, 720 F.2d 1022, 1026 (9th Cir.1983). To arrest an individual, police need more than a reasonable suspicion; they must have probable cause. Probable cause to arrest exists when "under the totality of the circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime." United States v. Smith, 790 F.2d 789, 792 (9th Cir.1986).

The district court believed that police had grounds to detain Barlow because they claimed they saw him knock down a sign carried by an anti-gay protester. According to Barlow, however, his contact with the sign was entirely accidental. He said it came into his path as he walked past the protesters and he merely put his hand up to cover his face. An independent witness confirmed that Barlow bumped into the sign accidentally.

For summary judgment purposes, we must accept Barlow's version of the incident as true and determine whether the defendants are nevertheless entitled to judgment as a matter of law. Assuming Barlow's version to be true, we cannot say as a matter of law that the officers reasonably suspected that Barlow had committed a crime. Summary judgment was thus improper on the detention issue.

The disputed facts that prevent resolution of the detention issue on summary judgment also prevent resolution of the question whether police had probable cause to arrest. Moreover, there are additional factual disputes as to whether the arrest took place before or after Barlow began struggling with the officers.

According to Barlow, police tackled him from behind as he was rejoining his section of the parade. He immediately felt "incredible pain" in his back. In reaction to the pain, he said, he fought back to defend himself. Given Barlow's version, a reasonable jury could conclude that Barlow was arrested before he began struggling with the officers and was thus arrested solely for accidentally bumping into a protest sign. If this is in fact what happened, the jury could reasonably conclude that police did not have probable cause to arrest Barlow.


The district court also granted summary judgment on Barlow's claim that the officers used excessive force in arresting him.

An arrest is a seizure that is governed by the reasonableness standard of the fourth amendment. In determining whether the degree of force is reasonable under the fourth amendment, courts carefully balance the nature and quality of the intrusion against the governmental interest at stake. Graham v. Conner, 490 U.S. 386, 396, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). Such a balancing "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. The inquiry is "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them...." Id. 109 S.Ct. at 1872, citing Scott v. United States, 436 U.S. 128, 137-39, 98 S.Ct. 1717, 1723-24, 56 L.Ed.2d 168 (1978). Whether the amount of force used was reasonable is usually a question of fact to be determined by the jury. White v. Pierce County, 797 F.2d 812, 816 (9th Cir.1986).

Page 1136

Even if the parties agreed on the amount of force that was applied in this case, the question whether that force was reasonable could not properly be resolved on summary judgment. In this case, the same factual disputes that underlie the detention and arrest issues are relevant to determining whether police used reasonable force. Viewing the evidence in the light most favorable to Barlow, a reasonable jury could conclude that Barlow was tackled from behind and placed in an extremely punishing "pain compliance" hold solely for accidentally bumping into a demonstrator's placard. Moreover, a reasonable jury could conclude that even if police did have probable cause to arrest Barlow, they nevertheless applied excessive force. Throwing down a sign is not a severe crime and Barlow's actions in self-defense did not pose a threat to the officers until after they placed the "pain compliance" hold on him. Consequently, the district court erred by granting summary judgment on the excessive force issue.


The district court also held that even if police did not have probable cause to arrest Barlow, and even if excessive force was used, the officers are nonetheless immune from civil damages under the doctrine of qualified immunity. The district court accordingly granted summary judgment to the defendants on this issue as well.

The doctrine of qualified immunity does not apply if reasonable officers would have known they were violating clearly established Constitutional rights. See White v. Pierce County, 797 F.2d 812, 815 (9th Cir.1986). In the present case, facts necessary to decide the issue of qualified immunity are in dispute. Summary judgment is therefore appropriate only if the...

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