Blankenhorn v. City of Orange

Citation485 F.3d 463
Decision Date08 May 2007
Docket NumberNo. 04-55938.,04-55938.
PartiesGary BLANKENHORN, Plaintiff-Appellant, v. CITY OF ORANGE; Andy Romero; Dung Nguyen; Garrett Ross; Tamara South; Gray, Sergeant; Montano, Officer; Kayano, Officer; Roman, Officer, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Paul L. Hoffman and Michael S. Morrison, Schonbrun DeSimone Seplow Harris & Hoffman, Venice, CA, for the appellant.

M. Lois Boback, Woodruff, Spradlin & Smart, Orange, California; and David A. De Berry, City Attorney, City of Orange, Orange, CA, for the appellees.

Appeal from the United States District Court for the Central District of California; Gary L. Taylor, District Judge, Presiding. D.C. No. CV-02-01160-GLT.

Before: M. MARGARET McKEOWN and MARSHA S. BERZON, Circuit Judges, and SAMUEL P. KING,* District Judge.

KING, District Judge.

In July 2001, police officers from the City of Orange ("City") found Gary Blankenhorn ("Blankenhorn") at a shopping mall where, six months before, he had been evicted and permanently banned from entering again. The officers arrested Blankenhorn on suspicion of trespass, and he was later charged with disturbing the peace, trespass, and three counts of resisting arrest. The prosecutor also added a gang-related enhancement charge. After Blankenhorn had spent three months in jail, all charges were dropped and he was released.

Blankenhorn then brought this civil rights suit against Defendants under 42 U.S.C. § 1983 for unlawful arrest, excessive force, and malicious prosecution; and under California state law for false imprisonment, negligence, assault and battery, and intentional infliction of emotional distress. Blankenhorn alleges that the police officers did not have probable cause to arrest him and that they used unreasonable force during the arrest by gang-tackling him, punching him, and using hobble restraints. He also seeks damages from the City and Chief Andy Romero ("Romero") on theories of municipal and supervisorial liability.

The district court granted Defendants' motion for summary judgment on all of Blankenhorn's causes of action, and Blankenhorn timely appealed. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse and remand in part.


On February 4, 2001, a security guard at The Block at Orange ("The Block" or "mall"), a shopping mall, issued Blankenhorn a "Notice Forbidding Trespass" and asked him to leave the premises. The Notice stated: "You are hereby notified that you are FORBIDDEN TO TRESPASS or enter upon my lands or buildings thereof . . . Failure to comply with this NOTICE shall result in your prosecution for TRESPASSING." Sergeant Jeff Gray ("Gray") was at The Block when Blankenhorn was ejected on February 4, 2001, but did not actually see mall security issue the notice. Gray was, however, "aware that Gary Blankenhorn had been ejected from The Block at that time and was provided notice that he was not to return."

Sometime around the first week of July 2001, Officer Garret Ross ("Ross"), heard a radio report of a gang fight at The Block and, shortly afterward, saw Blankenhorn running from the area. Ross stopped Blankenhorn, they sat down together, and Ross asked Blankenhorn what he knew about the fight. Ross found Blankenhorn "completely calm" and "cooperative" throughout the interview.

About midnight on July 28, 2001, Gray saw Blankenhorn in a crowd at The Block. He could not remember Blankenhorn's name but believed he had previously received a Notice Forbidding Trespass. Gray asked Officer Dung Nguyen ("Nguyen") to help him locate Blankenhorn so they "could talk to him, identify him and determine whether The Block security wished to have him removed or take some other action." In Nguyen's police report, Nguyen stated that Gray told him that Blankenhorn is a "known 18th Street gang member and had been banned from the Block facility in February 2001." A short time later, Nguyen and Gray spotted Blankenhorn, who was talking with Victor Garcia ("Garcia") and Garcia's younger brother. A video1 taken by a mall security camera shows that there was another young boy there as well.

The parties dispute certain incidents that occurred during this initial encounter. In his police report, Nguyen claims that he immediately told Blankenhorn he was being "detained for trespassing." In his declaration supporting the motion for summary judgment, Nguyen claims he explained to Blankenhorn that "he was being stopped so that we could determine his identity and confirm with security whether or not he was allowed at the location." Nguyen also says in his police report that, because Blankenhorn had a prior conviction for robbery and was a known member of the 18th Street Gang, he asked Blankenhorn if he was carrying any weapons.

Blankenhorn's version of the initial encounter is quite different. He alleges that Nguyen, standing about fifteen feet away, yelled for him to come over because he wanted to talk to him. Blankenhorn asked why, but Nguyen did not respond. Blankenhorn then said, "I'm having a conversation with a friend, you rudely interrupt me, what's wrong with you, you don't have any manners?" When Blankenhorn continued talking with Garcia, Nguyen simply stared at them. Finally, Blankenhorn said, "What's up? You want to talk to me[,] come over here, talk to me, then." Nguyen asked him what he was doing. Blankenhorn said he was talking to a friend and asked if Nguyen had any more questions. When Nguyen did not respond, Blankenhorn tried to walk away. Nguyen then got in front of him and put his hands out to prevent him from leaving. Blankenhorn asked Nguyen why he could not leave, but Nguyen again did not respond. When Blankenhorn tried to walk around Nguyen, he grabbed Blankenhorn by the arm. When Blankenhorn, by his own admission, "yanked out of [Nguyen's] grasp," the officer threatened to spray him with mace.

A security guard employed by The Block, Trevor Medlin ("Medlin"), joined Nguyen and Gray shortly after the initial stop. Although the parties' statements do not make clear exactly when he arrived, Medlin is already at the scene when the video of the encounter begins. A short time after the video begins, another officer, Detective Tamara South ("South"), appears on the scene. South came in response to Gray's request for back-up.

The parties characterize Blankenhorn's conduct before being taken into custody somewhat differently. Gray, Nguyen, and South described Blankenhorn as rude, uncooperative, and verbally abusive during the initial encounter. Blankenhorn admits he was "angry" and "loud," that he used profanity, and that, in frustration, he threw his driver's license on the ground. Both Nguyen's and Ross's police reports state that Blankenhorn took a fighting stance and clenched his fists. South's report says Blankenhorn several times approached Nguyen "in a threatening manner." Blankenhorn denies this. The video shows Blankenhorn gesture several times by raising his arms above his head and touching his chest. It also shows him approach Nguyen and once point at him. But it does not show Blankenhorn clench his fists. South also claimed in her police report that during the stop Blankenhorn yelled out he was a member of the 18th Street Gang. Blankenhorn and Garcia deny Blankenhorn ever identified himself as a gang member.

The parties also dispute how the officers made the arrest. Nguyen's declaration states that he asked Blankenhorn to kneel down so he could handcuff him. Blankenhorn refused, saying, "I'm not going to my f* * *ing knees." Blankenhorn alleges that, immediately after he said this, Nguyen, Ross,2 and South "all jumped on [him]," though all three officers and Gray maintain that Nguyen first reached for Blankenhorn's left wrist to place him in handcuffs. The video shows the officers and Blankenhorn struggling for several seconds before the officers finally take him to the ground. Blankenhorn was handcuffed. Once this was accomplished, Gray ordered Ross to secure his wrists and ankles with ripp-hobble restraints, and Ross did so.3

Blankenhorn claims that, during the struggle, Nguyen punched him several times, and another officer or officers placed a knee behind his neck and pressed his face to the ground. The video clearly shows Nguyen punch Blankenhorn in the head and twice more in the side. Nguyen landed at least one punch to Blankenhorn's body after Blankenhorn was already on the ground. Though Nguyen, South, and Ross fail to mention the punches in their police reports, they all reported that Blankenhorn resisted being handcuffed by maneuvering his hands and arms under his body. Blankenhorn denies he ever did this. It is not clear from the video whether Blankenhorn so maneuvered.

Blankenhorn was charged by information on September 17, 2001, with one count of trespass, three counts of resisting arrest, and one count of disturbing the peace. The trespass was charged as a misdemeanor, but the resisting arrest and disturbing the peace counts were charged as felonies due to a gang-related enhancement.4 At the preliminary hearing, Nguyen admitted that, though he did not mention it in his police reports, he punched Blankenhorn several times when making the arrest. The deputy district attorney, Sonia Balleste ("Balleste"), later decided to dismiss all charges against Blankenhorn because she believed Nguyen's admission at the preliminary hearing would damage his credibility as a witness and "cause enough of a concern in a jury's mind to raise a reasonable doubt." By that time, however, Blankenhorn had already spent three months in jail.


A grant of summary judgment is reviewed de novo. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). Likewise, a grant of summary judgment on the ground of qualified immunity is also reviewed de novo. Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003).

We may not affirm a grant of summary judgment if there is any genuine issue...

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