Velazquez v. City of Long Beach

• Decision Date: 15 July 2015
• Docket Number: No. 12–56933.,12–56933.
• Parties: Alejandro VELAZQUEZ, Plaintiff–Appellant, v. CITY OF LONG BEACH; Long Beach Police Department; Kalid Abuhadwan, Officer, in his individual and official capacity; Martin Ron, Officer, in his individual and official capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

793 F.3d 1010

Alejandro VELAZQUEZ, Plaintiff–Appellant

v.CITY OF LONG BEACH; Long Beach Police Department; Kalid Abuhadwan, Officer, in his individual and official capacity; Martin Ron, Officer, in his individual and official capacity, Defendants–Appellees.

No. 12–56933.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 9, 2014.

Filed July 15, 2015.

Mitchell Keiter, Beverly Hills, CA, for Plaintiff–Appellant.

Howard D. Russell (argued), Deputy City Attorney; Charles Parkin, City Attorney, Long Beach, CA, for Defendants–Appellees.

Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. No. 2:11–cv–00120–R–JEM.

Before: KIM MCLANE WARDLAW and MARSHA S. BERZON, Circuit Judges and WILLIAM E. SMITH,^* District Judge.

OPINION

BERZON, Circuit Judge:

Alejandro Velazquez was arrested in front of his home in Long Beach, California, for violating California Penal Code § 148, which prohibits resisting or obstructing a police officer. In making the arrest, a Long Beach police officer struck Velazquez with a police baton about eleven times, injuring him. No charges relating to this incident were ever brought against Velazquez.

Velazquez sued the city of Long Beach (“the City”) and several police officers (collectively, the “Officers”) under 42 U.S.C. § 1983 and California law, contending that he was, among other things, unlawfully arrested and subjected to excessive force. The case went to trial. After the parties finished putting on evidence, the district court granted the City's and the Officers' Rule 50(a) motion for judgment as a matter of law as to Velazquez's § 1983 unlawful arrest and municipal liability claims. The district court then dismissed Velazquez's state law claims without prejudice. Velazquez's excessive force claim went to the jury, which returned a defense verdict.

We conclude that the district court incorrectly applied the Rule 50(a) standard, erroneously excluded relevant Monell evidence, and improperly dismissed the state law claims. The district court's grant of judgment as a matter of law on the unlawful arrest claim so substantially affected the jury's verdict on the excessive force claim as to require its reversal. Consequently, we reverse and remand for a new trial on all of Velazquez's claims.

I. Background

A. The Incident

On the afternoon of October 24, 2009, Alejandro Velazquez's girlfriend took him to a restaurant for lunch to celebrate his birthday. During lunch, Velazquez consumed two or three mixed alcoholic drinks. Lunch over, Velazquez returned to his home—he lived with his mother—to “hang out” with some friends. Velazquez and his friends remained at the home from late that afternoon through the early morning, during which Velazquez drank some more—several beers or mixed drinks.

At approximately 3:30 AM on October 25, 2009, Long Beach Police Department Officers Kalid Abuhadwan and Martin Ron received a call regarding a disturbance at Velazquez's home. The officers were informed that there was a group of eight to ten individuals “drinking [and] being loud [that] came from a party across the street, possibly,” and that “the calling party just wanted them moved along and checked out.” The officers were aware that an “advisal call” regarding the same group had come over the radio some time earlier that morning, meaning that group had been advised regarding a disturbance but not cited for any crimes.

The officers drove to the scene to “[t]ell the group to go inside.” From that point on, the parties' accounts of the events diverge considerably.

1. Abuhadwan's version

When the officers arrived at the scene, they saw about eight to ten Hispanic individuals, including Velazquez, standing around a vehicle on a “dimly lit street.” Some in the group were holding beer cans. According to Abuhadwan, the officers had no intention of arresting anyone, as the problem was “something [that] easily could be avoided by just going inside and turn[ing] off the music.”

Abuhadwan saw Velazquez, who was not holding a drink, leaning against a vehicle and “holding on to [it] with both of his hands.” Abuhadwan testified that to him, Velazquez's position indicated that he “was possibly under the influence to the extent he couldn't hold his own balance.” At the same time, Abuhadwan did not believe that Velazquez appeared “unable to care for himself.” As the officers arrived in their patrol car, Abuhadwan told the group to “go inside, pick up your trash,” and move a car blocking the street. Members of the group began to do as told.

In response to the officer's instructions, Velazquez said “yeah, sure” while shaking his head left to right. Abuhadwan interpreted this statement “as being sarcastic and telling the group we're not leaving, like, yeah, sure, move on, cop.” Abuhadwan “ma[d]e a decision to detain” Velazquez because “he was the only subject that refused to comply with the orders.” Abuhadwan left his vehicle and approached Velazquez. From about four feet away, Abuhadwan smelled alcohol on Velazquez's breath and observed that his eyes were watery.

Abuhadwan then commanded Velazquez to place his hands behind his head so he could conduct a “cursory” search, telling Velazquez that he was “being detained for [being] drunk in public.” According to Abuhadwan, Velazquez replied “fuck off, I'm good.” Abuhadwan repeated his command, to which Velazquez replied, “I ain't doing that. We don't got to leave.” Abuhadwan then decided to “apply a twist lock” to Velazquez.¹ Velazquez did not fight back. Abuhadwan testified that, at that point, Velazquez was not under arrest, but was “being detained.”

After placing Velazquez in the twist lock, Abuhadwan began to walk Velazquez to the patrol car. While walking back to the vehicle, Abuhadwan felt Velazquez “sort of pull[ ] away.” Abuhadwan executed an “arm bar takedown,”² which brought Velazquez to the ground. A “textbook” arm bar takedown places the detainee in the “prone position,” with his stomach to the ground, allowing the officer more control. When Abuhadwan performed the takedown on Velazquez, however, Velazquez “roll[ed] on his back and was facing” Abuhadwan, with his fists clenched to his chest. Velazquez's legs were up in the air in a bicycle position, suggesting to Abuhadwan that Velazquez was “ready to ground fight with me.”³ Abuhadwan thereupon decided to arrest Velazquez “[f]or resisting, obstructing, [or] delaying a police officer,” in violation of California Penal Code Section 148(a)(1).

Abuhadwan commanded Velazquez to roll over onto his stomach and to place his hands to his sides. Velazquez did not comply. Without warning, Abuhadwan struck him three times on the shoulder with his baton, commanding Velazquez again to roll over. With interspersed commands to roll over, Abuhadwan proceeded to strike Velazquez eight more times, hitting Velazquez's shoulder, lower back and buttocks area, left bicep, and hands (which were clenched to his chest). When Velazquez did begin to roll over during the strikes, Abuhadwan feared “he was going to get up onto his feet,” so he continued the baton strikes, “swing[ing] at full force the entire time.” While Velazquez was being struck with the baton, he shouted “leave me the fuck alone.”

After eleven baton strikes, Velazquez rolled onto his stomach and placed his hands to his side; Abuhadwan then handcuffed him. Abuhadwan observed no injuries to Velazquez. Once other police units arrived at the scene, Abuhadwan lifted Velazquez from the ground, placed him under arrest, and drove him to the police station to be booked.

2. Other witnesses' version

Velazquez and other witnesses recalled a starkly different series of events.

According to them, no one was drinking on the street at the time the police arrived, and there were no beer bottles or cans present.⁴ Dennis Torres Magana, Velazquez's nephew who was at the scene, testified that, after the officers had pulled up in their police car, he told Abuhadwan, “Don't worry. We're leaving, Officer.” Velazquez, who had been speaking to his mother, Elvira Hernandez, then asked Magana and the officers, “what's up?” Velazquez recalled a similar interchange—according to him, he asked the officers, “what's going on?”

Abuhadwan appeared to be driving away when Velazquez asked his question, but he “stopped the car, put it in reverse, came back” and asked what Velazquez had said. Velazquez replied, “I said, ‘what's up.’ ” The officers then got out of the car, and Abuhadwan started “speed walking towards” Velazquez. Magana heard Abuhadwan say, “I'm tired of people calling because of you, mother fuckers.”⁵ Abuhadwan then, according to Magana, grabbed Velazquez and “threw him to the ground.” Magana testified that Velazquez offered “no resistance” when Abuhadwan grabbed him. Velazquez similarly testified that Abuhadwan “walk [ed] up to [him], “grab[bed] him,” and “threw [him] to the ground.”

According to Velazquez and Magana, Abuhadwan as he approached did not tell Velazquez to put his hands behind his head. Officer Ron, who was approximately four to ten feet away, also testified that he did not hear Abuhadwan issue any such order. Several witnesses at trial, including Ron, testified that they did not recall Velazquez telling Abuhadwan to “fuck off”; indeed, Ron testified that he did not hear Velazquez utter any profanities during the “entire altercation.”

After being taken down to the ground, Velazquez did not hear Abuhadwan tell him to roll over or issue any other commands. Magana testified that Abuhadwan did not give Velazquez an opportunity to roll over onto his stomach before striking him with the baton. Several witnesses stated that while being struck on the ground, Velazquez told Abuhadwan several times, “I'm not about violence”; Abuhadwan disputed that Velazquez said that. Witnesses also testified that after Velazquez rolled over, Abuhadwan continued to strike him. According to Velazquez's mother, Velazquez was bleeding from the side...