NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 4 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GALINA MEDVEDEVA, No. 15-35750

Plaintiff-Appellant, D.C. No. 2:14-cv-00007-RSL

v.

MEMORANDUM*

CITY OF KIRKLAND, Washington; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding

Argued and Submitted December 7, 2017 Seattle, Washington

Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges.

Galina Medvedeva appeals from the district court’s dismissal of her

unlawful arrest and First Amendment retaliation claims, and challenges the district

court’s jury instructions for her Americans with Disabilities Act (“ADA”) and

excessive force claims. Because the parties are familiar with the facts, we do not

recite them here.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

I. Unlawful Arrest

We review de novo a district court’s grant of summary judgment. Whitman

v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). Medvedeva acknowledges that the

officers had a right to enter the apartment. Medvedeva also does not dispute that

the officers informed her that they needed to enter to investigate a leak; that,

despite being informed of this, she failed to open the front door for approximately

forty minutes; or that, once the officers entered the apartment using a master key,

she attempted to close the bathroom door to keep the officers out. Given

Medvedeva’s failure to open the front door and her resistance once the officers

entered the apartment, “a prudent person would have concluded that there was a

fair probability” that Medvedeva had hindered, delayed, or obstructed the officers.

Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991) (quoting United States v.

Smith, 790 F.2d 789, 792 (9th Cir. 1986)). Therefore, the officers had probable

cause to arrest Medvedeva for obstruction. See Wash. Rev. Code § 9A.76.020.

The district court did not err in dismissing Medvedeva’s unlawful arrest claim on

summary judgment.

II. First Amendment Retaliation

“[T]he First Amendment protects a significant amount of verbal criticism and

challenge directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461

(1987). However, “a simple failure to obey a police officer’s lawful instructions”

2 is not protected by the First Amendment. See Young v. Cty. of Los Angeles, 655

F.3d 1156, 1170 (9th Cir. 2011). Medvedeva’s conduct was not expressive

conduct protected by the First Amendment, but rather a simple failure to obey

lawful instructions. See id. The district court did not err in dismissing

Medvedeva’s First Amendment retaliation claim on summary judgment.

III. ADA Jury Instructions

We review a district court’s formulation of jury instructions for abuse of

discretion, and we review de novo whether an instruction states the law correctly.

See Peralta v. Dillard, 744 F.3d 1076, 1082 (9th Cir. 2014) (en banc). “Jury

instructions must correctly state the law and failure to do so warrants reversal,

unless the error is harmless.” Coles v. Eagle, 704 F.3d 624, 630 (9th Cir. 2012).

A claim for reasonable accommodation under Title II of the ADA arises

when, “although police properly investigate and arrest a person with a disability for

a crime unrelated to that disability, they fail to reasonably accommodate the

person’s disability in the course of investigation or arrest, causing the person to

suffer greater injury or indignity in that process than other arrestees.” Sheehan v.

City & Cty. of San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014), rev’d in part

on other grounds, cert. dismissed in part, 135 S. Ct. 1765 (2015). The jury

instructions for Medvedeva’s reasonable accommodation claim required the jury to

find that Medvedeva was “unable to comply” with the officers because of her

3 disability, and that the officers could have made a reasonable accommodation that

would have enabled her to comply with the officers’ commands.

As the district court acknowledged during trial, the inability to comply with

officers due to a disability is not always a required element of a reasonable

accommodation claim. In this instance, however, the district court formulated the

jury instructions by taking into account the factual circumstances surrounding the

arrest and Medvedeva’s theory of the case. The district court had extensive

discussions with counsel about the instructions and explained the rationale for the

ADA instruction in view of the specific facts here. The district court threaded the

needle by integrating the specific facts and arguments of the case into the

instructions. Although excluding the inability-to-comply segments from the jury

instructions may have been a better fit, the district court did not err by including

them. To the extent there was any error, such error was harmless given

Medvedeva’s opportunity to fully argue her theory of the case. The district court

did not err in its jury instructions for Medvedeva’s reasonable accommodation

claim.

IV. Excessive Force Jury Instructions

Excessive force claims are analyzed under the reasonableness standard of

the Fourth Amendment. See Hung Lam v. City of San Jose, 869 F.3d 1077, 1087

(9th Cir. 2017). We have upheld “fairly general reasonableness/ totality of the

4 circumstances instructions” in excessive force cases. Brewer v. City of Napa, 210

F.3d 1093, 1097 (9th Cir. 2000) (citation and internal quotation marks omitted).

The jury instructions for Medvedeva’s excessive force claim instructed the jury to

consider “all of the circumstances known to the officers on the scene,” and

specifically highlighted the amount of force used against Medvedeva and whether

she posed an immediate threat to the officers’ safety. Although there was no

specific instruction about the relative size difference between Medvedeva and the

officers, whether the officers gave verbal warnings before using force, and whether

the officers knew of Medvedeva’s mental illness, the district court was not required

to list every item requested by Medvedeva. The jury instructions correctly directed

the jury to consider the totality of the circumstances and allowed Medvedeva to

argue her theory of the case. She in fact did argue these points at trial. The district

court did not err in its jury instructions for Medvedeva’s excessive force claim.

AFFIRMED.

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