Cortesluna v. Leon

• Citation: 979 F.3d 645
• Decision Date: 27 October 2020
• Docket Number: No. 19-15105,19-15105
• Parties: Ramon CORTESLUNA, Plaintiff-Appellant, v. Manuel LEON ; Robert Kensic; Daniel Rivas-Villegas; City of Union City, California, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

979 F.3d 645

Ramon CORTESLUNA, Plaintiff-Appellant,

v.Manuel LEON ; Robert Kensic; Daniel Rivas-Villegas; City of Union City, California, Defendants-Appellees.

No. 19-15105

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 29, 2020 San Francisco, California

Filed October 27, 2020

GRABER, Circuit Judge:

Plaintiff Ramon Cortesluna appeals from the summary judgment entered in favor of Defendants Manuel Leon, Daniel Rivas-Villegas, Robert Kensic, and the City of Union City, California ("City"), in this action alleging that the individual Defendants used excessive force in effecting Plaintiff's arrest. We affirm in part, reverse in part, and remand.

IFACTUAL AND PROCEDURAL BACKGROUND¹

On the night of November 6, 2016, a 911 dispatcher received a call in which a 12-year-old girl, I.R., reported that she, her mother, and her 15-year-old sister were barricaded in a room at their home because her mother's boyfriend, Plaintiff, had a chainsaw and was going to attack them. I.R. said that Plaintiff was "always drinking," had "anger issues," was "really mad," and was using the chainsaw to "break something in the house." I.R. said that her mother was holding the door closed to prevent Plaintiff from entering and hurting them. I.R.’s sister then took the phone and confirmed that Plaintiff was "right outside the bedroom door" and was "sawing on their door knob." A manual sawing sound was audible to the 911 operator. I.R.’s sister described Plaintiff and his clothing.

A police dispatcher requested that officers respond. The dispatcher reported that a 12-year-old girl said that her mother's boyfriend had a chainsaw and was trying to hurt her, her sister, and her mother, who were together in a room. The dispatcher also relayed the girl's statement that the boyfriend was "always drinking" and was using the chainsaw to break something in the house. The dispatcher further reported that there had been another potentially related 911 call in the area and that, on that call, crying could be heard, but the caller hung up without speaking.

Defendants Leon, Rivas-Villegas, and Kensic, along with two other police officers, responded to the scene. When the first three officers, including Rivas-Villegas and Kensic, arrived, they observed Plaintiff's home for several minutes and saw that "[Plaintiff] is right here" in his window and "doesn't have anything in his hand" except, at some points, a beer. The officers checked with dispatch to confirm that the caller really reported a chainsaw. The dispatcher acknowledged "we can't hear [a chainsaw] over the phone" but suggested that Plaintiff could be using the chainsaw "manually." One officer asked the 911 operator if the girl and her family could leave the house. The operator replied that they were unable to get out and that, during the call, she heard sawing sounds in the background, as if the boyfriend were trying to saw the bedroom door down.

Defendant Leon arrived at the scene later and might have heard the radioed conversation with the dispatcher. When Leon arrived, another officer told him, "so, he's standing right here drinking a beer. What do you think [about] just giving him commands, having him come out, and do a protective sweep?" The officers formulated a plan to approach the house and "breach it with less lethal, if we need to," a reference to Leon's beanbag shotgun.²

Rivas-Villegas knocked on the front door, stating, "[P]olice department, come to the front door, Union City police, come to the front door." A few seconds later, Plaintiff emerged through a sliding glass door near the front door, holding a large metal object. Kensic said, "He's coming ... he's got a weapon in his hand" that looks "like a crowbar." Plaintiff was ordered to "drop it," which he did. Meanwhile, Leon said, "I'm going to hit him with less lethal," that is, his beanbag shotgun, and told another officer to get out of his way.

Rivas-Villegas then ordered Plaintiff to "come out, put your hands up, walk out towards me." Plaintiff put his hands up, as Rivas-Villegas told Plaintiff to "keep coming."

As Plaintiff walked out of the house and toward the officers, Rivas-Villegas said, "Stop. Get on your knees." Plaintiff stopped approximately ten to eleven feet from the officers. Immediately after Rivas-Villegas’ order, Kensic saw a knife in the front left pocket of Plaintiff's sweatpants, and he announced that Plaintiff had "a knife in his left pocket, knife in his pocket." Kensic then told Plaintiff, "[D]on't, don't put your hands down" and "hands up." After Kensic shouted this last order, Plaintiff turned his head toward Kensic, who was on Plaintiff's left side, (and away from Leon, who was on Plaintiff's right side) and simultaneously lowered his head and his hands. Leon immediately shot Plaintiff with a beanbag round from his shotgun and quickly fired a second beanbag shot while Plaintiff's hands were still in a downward position near his belly, where the first shot hit. The second shot hit him on the hip. Roughly two seconds elapsed between Kensic's "hands up" order and the second shot.

After the second shot, Plaintiff again raised his hands over his head. The officers ordered him to "[G]et down." As Plaintiff was lowering himself to the ground, Rivas-Villegas used his foot to push Plaintiff to the ground. Rivas-Villegas then pressed his knee into Plaintiff's back and pulled Plaintiff's arms behind his back. Leon handcuffed Plaintiff's hands while Rivas-Villegas held his position. A few moments later, Rivas-Villegas lifted Plaintiff up by his handcuffed hands and moved him away from the doorway. Other officers then entered the house, and the incident ended.

Plaintiff filed a complaint asserting (a) a claim under 42 U.S.C. § 1983 against Leon and Rivas-Villegas for excessive force; (b) a § 1983 claim against Kensic for failing to intervene and stop the excessive force; (c) a claim against the City under Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for the officers’ actions; and (d) several state-law claims. Plaintiff claims that he suffers physical, emotional, and economic injuries as a result of the officers’ conduct.

The district court granted summary judgment to the individual Defendants on the federal claims. As to Leon and Rivas-Villegas, the court ruled both that the force used was objectively reasonable in the circumstances and that they were entitled to qualified immunity. As to Kensic, the court ruled that he had no reasonable opportunity to intervene and therefore could not be liable. With summary judgment granted in favor of the individual Defendants, the court dismissed Plaintiff's claim against the City. The court then declined to exercise supplemental jurisdiction over Plaintiff's state-law claims and dismissed them without prejudice. This timely appeal followed.

IISTANDARD OF REVIEW

We review de novo the propriety of summary judgment. S.B. v. Cty. of San Diego , 864 F.3d 1010, 1013 (9th Cir. 2017). Summary judgment is appropriate only if there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; Blight v. City of Manteca , 944 F.3d 1061, 1065–66 (9th Cir. 2019).

We also review de novo the ruling that a police officer is entitled to qualified immunity. S.B. , 864 F.3d at 1013. If the parties’ versions of the facts differ, we use the version most favorable to Plaintiff, the non-moving party. Smith v. City of Hemet , 394 F.3d 689, 693 (9th Cir. 2005) (en banc).

IIIDISCUSSION

A. Principles of Qualified Immunity

Qualified immunity protects individual officers "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (internal quotation marks omitted). In evaluating an assertion of qualified immunity, we undertake a two-part analysis, asking (1) "whether the facts taken in the light most favorable to the plaintiff show that the officer's conduct violated a constitutional right," and (2) whether that right was "clearly established at the time of the officer's actions, such that any reasonably well-trained officer would have known that his conduct was unlawful." Orn v. City of Tacoma , 949 F.3d 1167, 1174 (9th Cir. 2020).

At step one, we determine whether a reasonable jury could conclude that an officer's use of force violated the Fourth Amendment by "balancing ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ " Id. (quoting Tennessee v. Garner , 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) ). That analysis incorporates many factors,³ but the most important factor is "whether the suspect posed an immediate threat to the safety of the officers or others." C.V. ex rel. Villegas v. City of Anaheim , 823 F.3d 1252, 1255 (9th Cir. 2016) (internal quotation marks omitted). Although we take disputed facts in the light most favorable to the plaintiff, we view the facts from "the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham v. Connor , 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Because of the factual disputes typical of excessive-force claims, we have recognized that summary judgment at this step "should be granted sparingly." Smith , 394 F.3d at 701 (internal quotation marks omitted). Nonetheless, summary judgment may be granted to an officer if, "after resolving all factual disputes in favor of the plaintiff," the court concludes that the force used was "objectively reasonable under the circumstances." Scott v. Henrich , 39 F.3d 912, 915 (9th Cir. 1994).

At step two, we determine whether the officer's conduct violated "clearly established" law. Plumhoff v. Rickard , 572...