Andrews v. City of Henderson

35 F.4th 710

Daniel ANDREWS, Plaintiff-Appellee,

v. CITY OF HENDERSON ; Phillip Watford; Karl Lippisch, Defendants-Appellants,andHenderson Police Department; Joseph W. Ebert; R. Adams ; K. Lapeer; K. Lippisch, Defendants.

No. 20-17053

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 9, 2021 San Francisco, California

Filed May 23, 2022

Michael J. Oh (argued), Senior Assistant City Attorney; Nicholas G. Vaskov, City Attorney; Office of the City Attorney, Henderson, Nevada; for Defendants-Appellants.

Peter Goldstein (argued), Peter Goldstein Law Corp., Las Vegas, Nevada, for Plaintiff-Appellee.

Before: Eugene E. Siler,^* Morgan Christen, and Danielle J. Forrest, Circuit Judges.

FORREST, Circuit Judge:

Plaintiff Daniel Andrews exited a Nevada state courthouse and, without warning, two plainclothes detectives tackled him to the ground, fracturing his hip. Andrews was not resisting, fleeing, or committing a crime. Moreover, because he had just passed through the courthouse's security checkpoint, including a metal detector and x-ray scanner, the detectives knew that Andrews was unarmed. Andrews sued the detectives and the City of Henderson (collectively, Defendants) under 42 U.S.C. § 1983 for excessive force in violation of the Fourth Amendment. The detectives moved for summary judgment arguing that they are protected by qualified immunity, and the City moved for summary judgment arguing Andrews could not establish municipal liability under any of the theories that he advanced. The district court denied the detectives' motion and denied the City's motion except as to Andrews's ratification theory. We affirm.

I. Background

A. Factual History¹

After a series of armed robberies at various businesses in Henderson, Nevada, detectives with the Henderson Police Department (HPD) began surveilling a woman suspected of assisting a man with a recent robbery. On January 3, 2017, the woman left a gas station in a car driven by an unidentified man, and several plainclothes detectives followed behind. The detectives learned from the lead detective on the case that the driver was Andrews and that they had probable cause to arrest him for the armed robberies. The detectives followed the pair to the Henderson Justice Facility parking lot and watched as they exited the vehicle.

The detectives observed Andrews and the woman walk into the Henderson Municipal Courthouse. To enter the courthouse, the pair had to pass through a security checkpoint that included a metal detector and x-ray scanner. One detective followed Andrews and the woman into the courthouse and tracked their location. The other detectives waited outside so they could arrest Andrews after he exited the courthouse because they knew he would be unarmed at that point, having passed through the courthouse's metal detectors. All of the detectives were in plain clothes.

Twenty minutes after entering the courthouse, Andrews and the woman reemerged, and Detectives Phillip Watford and Karl Lippisch walked slowly toward them without identifying themselves. When Detective Watford was approximately a foot away from Andrews, he lunged and tackled him to the ground. Detective Lippisch also jumped toward Andrews and Detective Watford and landed on top of them as they fell. Detective Lippisch kept his weight on Detective Watford's back as Detective Watford handcuffed Andrews's arms behind his back. The detectives' takedown resulted in an acetabular² fracture of Andrews's hip, which required two surgeries.

After the arrest, Detective Watford prepared a "use of force" report detailing the event. Several of Detective Watford's supervisors reviewed the report and video footage of the arrest and determined that the use of force did not violate HPD policy or warrant further action.

B. Procedural History

Andrews sued Detectives Watford and Lippisch and the City under 42 U.S.C. § 1983, asserting a Fourth Amendment excessive-force claim against the detectives and a municipal-liability claim against the City. Andrews alleged three theories of municipal liability: (1) failure to train; (2) unconstitutional custom, practice, or policy; and (3) ratification. The Defendants moved for summary judgment, the detectives arguing that they were entitled to qualified immunity and the City arguing that it did not fail to train its officers on the proper use of force or have a policy or custom allowing officers to use excessive force. The City also contended that Andrews did not identify an individual with final policy-making authority who ratified the detectives' allegedly unconstitutional conduct.

The district court denied the detectives' motion for summary judgment raising qualified immunity. It concluded that there was a genuine factual dispute regarding whether the detectives used objectively reasonable force against Andrews. It also determined that the law in this circuit, including Blankenhorn v. City of Orange , 485 F.3d 463, 477, 481 (9th Cir. 2007), "clearly established" that "force is only justified when there is a need for force" and that it is excessive to "gang tackle" a person "who was suspected of a minor crime, posed no apparent threat to officer safety, and could be found not to have resisted arrest." Viewing the facts in the light most favorable to Andrews, the district court found that the detectives knew Andrews was unarmed and was not resisting arrest, attempting to flee, or committing a crime when they arrested him. Thus, the district court concluded that "there was simply no clear need for force."

The district court granted in part and denied in part the City's motion for summary judgment. It rejected Andrews's longstanding-policy-or-practice and failure-to-train theories, concluding that he failed to present any supporting evidence. But it denied summary judgment on Andrews's ratification theory, concluding that the detectives' contradicting versions of events, "in addition to the fact that the [detectives] were not disciplined, raises a genuine dispute as to whether their decision to use excessive force was ratified."³ Defendants timely appealed.

II. Discussion

A. Qualified Immunity

Qualified immunity shields government officials from civil damages unless an official "violate[s] a clearly established constitutional right." Monzon v. City of Murrieta , 978 F.3d 1150, 1156 (9th Cir. 2020). Thus, in determining whether a police officer is entitled to qualified immunity, courts ask two questions: (1) whether "the officer's conduct violated a constitutional right[,]" and (2) "whether the right was clearly established in light of the specific context of the case." Rice v. Morehouse , 989 F.3d 1112, 1120 (9th Cir. 2021) (quoting Tuuamalemalo v. Greene , 946 F.3d 471, 476 (9th Cir. 2019) ).

Under the collateral order doctrine, we have jurisdiction over interlocutory appeals from denials of qualified immunity. Isayeva v. Sacramento Sheriff's Dep't , 872 F.3d 938, 944–45 (9th Cir. 2017) ; see 28 U.S.C. § 1291. We have the authority to review such denials "because [q]ualified immunity is immunity from suit, not just a defense to liability," and "[t]he immunity is effectively lost if a case is erroneously permitted to go to trial." Isayeva , 872 F.3d at 944–45 (internal quotation marks and citations omitted). But our jurisdictional power is limited to legal issues, not factual disputes. Williamson v. City of Nat'l City , 23 F.4th 1146, 1151 (9th Cir. 2022). In other words, "[a] public official may not immediately appeal a fact -related dispute about the pretrial record, namely, whether or not the evidence in the pretrial record was sufficient to show a genuine issue of fact for trial." Estate of Anderson v. Marsh , 985 F.3d 726, 731 (9th Cir. 2021) (quoting Foster v. City of Indio , 908 F.3d 1204, 1210 (9th Cir. 2018) ) (internal quotation marks omitted). But we can decide whether "taking the facts in the light most favorable to the non-moving party, the defendants are entitled to qualified immunity." Isayeva , 872 F.3d at 945. And in making this determination, we exercise de novo review. Hines v. Youseff , 914 F.3d 1218, 1227 (9th Cir. 2019).

1. Fourth Amendment violation

The central question in determining whether law enforcement officers violated the Fourth Amendment by using excessive force is "whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them." Williamson , 23 F.4th at 1151 (internal quotation marks and citation omitted); see also Lombardo v. City of St. Louis , ––– U.S. ––––, 141 S. Ct. 2239, 2242, 210 L.Ed.2d 609 (2021). "All determinations of unreasonable force ‘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.’ " Scott v. Henrich , 39 F.3d 912, 914 (9th Cir. 1994) (quoting Graham v. Connor , 490 U.S. 386, 396–97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ).

"Neither tackling nor punching a suspect to make an arrest necessarily constitutes excessive force." Blankenhorn , 485 F.3d at 477 (quoting Graham , 490 U.S. at 396, 109 S.Ct. 1865 ) (emphasis added). Instead, whether a constitutional violation occurred depends on "(1) the severity of the intrusion on the individual's Fourth Amendment rights by evaluating the type and amount of force inflicted, (2) the government's interest in the use of force, and (3) the balance between the gravity of the intrusion on the individual and the government's need for that intrusion." Rice , 989 F.3d at 1121 (quoting Lowry v. City of San Diego , 858 F.3d 1248, 1256 (9th Cir. 2017) (en banc)) (internal quotation marks omitted). We address each of these considerations in turn.

a. Type and amount of force

"We consider the ‘specific factual circumstances’ of the case in classifying the force used." Williamson , 23 F.4th at 1151–52 (quoting Lowry , 858 F.3d at 1256 ). Relevant to our analysis are the ...