Jackson v. City of Bremerton

Decision Date07 August 2001
Citation268 F.3d 646
CourtU.S. Court of Appeals — Ninth Circuit

Timothy M. Greene, Puyallup, Washington, for the plaintiff-appellant.

Steven Reich, Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim Seattle, Washington, for the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. No. CV-98-05502-RJB

Before: Tashima and Tallman, Circuit Judges, and Mollway,** District Judge.

Richard C. Tallman, Circuit Judge:

Appellant Jeannine Jackson ("Jackson") originally brought this action under 42 U.S.C. § 1983 and Washington state tort law against nine individual police officers ("the officers"), the City of Bremerton, and Police Chief Paul DuFresne. On appeal Jackson claims the officers violated her Fourth Amendment rights by using excessive force in arresting her at a family barbecue in a public park when she attempted to interfere with the arrest of her adult son on an outstanding warrant. She also seeks to hold liable the City of Bremerton and Police Chief DuFresne on the ground that the officers' acts of excessive force against her and her group represent an informal custom employed by the City in response to emergency situations. The district court granted summary judgment in favor of all defendants. We have jurisdiction under 12 U.S.C. § 1291, and we affirm.


On July 13, 1996, Jackson and 30 to 50 friends and family members gathered at a public park in Bremerton, Washington. Officers Dahlberg and Eriksen, who were patrolling the area on bicycles, responded to a report that the group was consuming alcohol in the park. While speaking with members of the Jackson party, Officer Dahlberg recognized Jackson's son, Kevin Blake, from previous contacts. Officer Dahlberg checked Blake's name for wants and learned that there was an outstanding robbery warrant. The warrant arose out of Blake's failure to make payments on a felony charge that had been reduced to a misdemeanor theft conviction. Because Blake had previously caused problems for arresting officers, Officer Dahlberg called for backup.

Officers Dahlberg and Eriksen informed Blake, who was standing in a separate area of the park, of the outstanding warrant. Blake told the officers to speak with his mother. Blake's mother then argued with the officers regarding the nature of the warrant. Blake ran into the large group of people and tried to run out of the park. Several of his friends attempted to shield him from arrest. Officer Eriksen called for additional backup due to the escalating situation.

Officers Cronk and Mendiola were the next officers on the scene. After Officer Mendiola's arrival, Jackson was told that Officer Mendiola had been seen reaching for his holster and removing his gun. Jackson reacted by yelling at Officer Mendiola regarding his conduct. As the other officers continued to apprehend Blake, Jackson and her group yelled and swore at the officers, and advanced upon them. Fights broke out between the officers and other members of Jackson's group. Officers Dahlberg and Eriksen apprehended Blake shortly thereafter.

Officers Davis and Hughes were the next officers to arrive at the park. Additional help from surrounding police agencies was also summoned. A fight ensued between female Officer Davis and Deanna Ferguson, a 17-year-old female and family friend of Jackson's. Upon witnessing the altercation between Officer Davis and Ferguson, Jackson "ran to interfere" with the officer. At that point Jackson's hair was sprayed with a chemical irritant. Jackson did not recall which officer sprayed her. She did state, however, that the officers had warned "everyone" in advance that a chemical irritant would be used if she and her group did not disperse.

Jackson was then placed under arrest for failure to disperse. During her arrest, Jackson contends she asked Officer Pratt to allow her to go down to the ground herself due to pre-existing back and shoulder injuries. Jackson, who got to her knees and then leaned down, claims Officer Pratt "pushed[her] the rest of the way" down. Officer Pratt then placed his knee on her back and handcuffed her. Jackson contends Officer Pratt, and possibly another officer, roughly lifted her back up and put her in Officer Pratt's police car.

While Jackson was handcuffed in the police car, she yelled at Officer Davis regarding Ferguson's treatment. During the argument, Jackson said Officer Davis turned on the engine in 90 degree weather, rolled up the windows of the car, and stated, "I'll see what I can do to adjust your attitude." While she was in the police car, the chemical irritant in Jackson's hair ran into her eyes and ears. Within minutes of being placed in the car, Officer Davis sprayed Jackson with water to remove the chemical irritant. Jackson was then transported to the police station.

When Jackson's handcuffs were removed at the station, she noticed pain and swelling in her fifth finger. Jackson said she received immediate medical attention while at the station, and was subsequently diagnosed with a fractured finger. Jackson contends she has suffered permanent damage to that finger.

Five arrests were made as a result of this incident. All five people, including Jackson, were convicted of various misdemeanors. Jackson and Blake later filed suit against the City of Bremerton, Police Chief DuFresne, and the officers. Blake was dismissed from this lawsuit pursuant to a stipulated voluntary dismissal with prejudice. The remaining defendants then moved for summary judgment against Jackson. The district court granted the motion on all claims. Jackson timely appeals.


We review de novo a district court's grant of summary judgment on the ground of qualified immunity. See LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact, and whether the district court correctly applied the relevant substantive law. See Lopez v. Smith , 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).


A private right of action exists against police officers who, acting under color of state law, violate federal constitutional or statutory rights. 42 U.S.C. § 1983. The defense of qualified immunity, however, protects § 1983 defendants from liability for civil damages when performing discretionary functions, unless such conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known. See Anderson v. Creighton, 483 U.S. 635, 640 (1987).

In considering the merits of a qualified immunity defense in excessive force cases, courts previously considered whether the right was clearly established and, if so, whether, in light of such clearly established law, a reasonable officer could have known that his/her conduct was unlawful. See Saucier v. Katz, ___U.S.___, 121 S. Ct. 2151, 2155 (2001) (citing Graham v. O'Connor, 490 U.S. 386 (1989), and Anderson v. Creighton, 483 U.S. 635 (1987)). The Supreme Court, however, recently revisited the above analysis, clarifying the sequence of inquires for qualified immunity cases. Id. at 2158.

After Saucier, a qualified immunity analysis must begin with this threshold question: based upon the facts taken in the light most favorable to the party asserting the injury, did the officer's conduct violate a constitutional right? Id. at 2156. If no constitutional right was violated, the court need not inquire further. Id. If, however, a constitutional violation occurred, the second inquiry is whether the officer could nevertheless have reasonably but mistakenly believed that his or her conduct did not violate a clearly established constitutional right. Id. at 2158-59. Saucier's qualified immunity inquiry, requiring courts to focus first on the underlying constitutional issue, is intended to assist courts in disposing of insubstantial suits at an early stage of litigation, in addition to encouraging courts to "set forth principles which will become the basis for a holding that a right is clearly established." Id. at 2156.

In considering the first step of Saucier's two-step qualified immunity inquiry, we must determine whether Jackson's constitutional right to be free from excessive force was violated. Under the Fourth Amendment, officers may only use such force as is "objectively reasonable" under the circumstances.1 Graham v. O'Connor , 490 U.S. 386, 397 (1989). To determine whether the force used was reasonable, courts balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. at 396 (citations omitted). "The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)).

In addition, the court's consideration of "reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation." Id. at 396-97. "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's...

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