FILED

NOT FOR PUBLICATION

SEP 04 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LILIANA M. MESKE, No. 17-35758

Plaintiff-Appellee, D.C. No. 2:15-cv-00359-SMJ

v.

MEMORANDUM*

AMANDA RENZELMAN, individually and in her official capacity; DON W. ANDERSON, individually and in his official capacity; ASOTIN COUNTY, a political subdivision of the State of Washington,

Defendants-Appellants,

and

DOES, 1-10,

Defendant.

Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, Jr., District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted August 31, 2018** Seattle, Washington

Before: HAWKINS, McKEOWN, and W. FLETCHER, Circuit Judges.

Defendants-Appellants Amanda Renzelman, Don Anderson, and Asotin

County (“Deputy Renzelman,” “Sergeant Anderson,” and “County” respectively,

and collectively, “Defendants”) appeal the denial of their motion for summary

judgment on Plaintiff-Appellee Liliana Meske’s (“Meske”) claim of excessive

force. Defendants argue that Deputy Renzelman and Sergeant Anderson

(“Officers”) are entitled to a summary judgment holding that they have qualified

immunity. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The Officers are entitled to summary judgment if, resolving all disputes of

fact and credibility in favor of Meske, (1) the facts adduced show that the Officers’

conduct did not violate a constitutional right, or (2) the right was not clearly

established at the time of the violation. Kirkpatrick v. County of Washoe, 843 F.3d

784, 788 (9th Cir. 2016) (en banc) (describing the two-pronged test of Saucier v.

Katz, 533 U.S. 194 (2001)). We may begin our analysis with either prong.

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 Viewing the facts in the light most favorable to Meske, the Officers violated

Meske’s Fourth Amendment right to be free from excessive force during pretrial

detention. See Lolli v. County of Orange, 351 F.3d 410, 415 (9th Cir. 2003) (“The

Fourth Amendment sets the applicable constitutional limitations for considering

claims of excessive force during pretrial detention.” (quoting Gibson v. County of

Washoe, 290 F.3d 1175, 1197 (9th Cir. 2002))). Under the Fourth Amendment, an

officer’s use of force is “measured by the standard of objective reasonableness.”

Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir. 2001). We must balance “the

‘nature and quality of the intrusion’ on a person’s liberty with the ‘countervailing

governmental interests at stake’ to determine whether the use of force was

objectively reasonable under the circumstances.” Smith v. City of Hemet, 394 F.3d

689, 701 (9th Cir. 2005) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).

Relevant in this analysis is whether “it is or should be apparent to the officers that

the individual involved is emotionally disturbed,” because “the tactics to be

employed against[] an unarmed, emotionally distraught individual who is creating

a disturbance . . . are ordinarily different from those involved in law enforcement

efforts to subdue an armed and dangerous criminal.” Deorle, 272 F.3d at 1282–83.

Beginning with the nature and quality of the intrusion, the Officers violently

beat Meske prior to placing her in a suicide smock, breaking her rib and causing

3 extensive bruising, swelling, and pain. Although Meske was unable to remember

parts of the incident several years later, she reported to her medical providers

shortly after the incident that “she was beat up by police officers” to the point that

she “lost consciousness.” Her undisputed injuries are consistent with such a

beating.

In addition, the Officers admit that they put Meske in a suicide smock by

handcuffing her, pinning her to the ground, and forcibly removing her clothes.

Sergeant Anderson, a male, removed Meske’s pants, shoes, and socks. Deputy

Renzelman, a female, cut off Meske’s underwear with a pair of scissors. Another

male officer, Deputy Bruce MacArthur, stood in the open doorway.

The governmental interests at stake were limited. Meske was “neither a

flight risk, a dangerous felon, nor an immediate threat.” See Bryan v. MacPherson,

630 F.3d 805, 832 (9th Cir. 2010). Meske was arrested for DUI, which is neither a

violent crime nor a felony. Rev. Code Wash. § 46.61.502 (providing that DUI is a

gross misdemeanor unless the individual has previously committed certain

offenses); see also Hammer v. Gross, 932 F.2d 842, 846 (9th Cir. 1991) (en banc)

(plurality) (weighing the severity of a DUI in the claimant’s favor because “while

certainly not to be taken lightly, [it] was a misdemeanor”). Meske also did not

pose an immediate threat to the safety of the Officers. She was not armed; she was

4 in police custody; and, by the Officers’ own account, she was unsteady and

staggering. Meske also did not pose an immediate threat to herself, since the

Officers had already removed her jewelry and other potentially dangerous items.

Finally, although Meske may have been verbally antagonistic and reluctant to

cooperate, she was not “particularly bellicose” or otherwise resisting the Officers

in a way that would justify the use of significant force. See Gravelet-Blondin v.

Shelton, 728 F.3d 1086, 1092 (9th Cir. 2013).

Viewing the evidence in the light most favorable to Meske, and balancing

the factors “from the perspective of a reasonable officer on the scene,” we hold that

the Officers’ use of force was unreasonable. Bryan, 630 F.3d at 831. The Officers

were not forced to make a split-second judgment, since Meske was being held

under their control at the police station. There was no need to beat Meske violently

and forcibly remove her clothes. There was no jail policy authorizing the forcible

stripping of an inmate in order to place her in a suicide smock. Further, the jail’s

policy for strip searches stated that “[o]nly persons of the same sex shall perform

strip searches.” Exposing Meske’s body to male officials was highly “degrading”

and heightened the unreasonableness of the Officers’ actions. Cf. Sepulveda v.

Ramirez, 967 F.2d 1413, 1416 (9th Cir. 1992).

5 In January of 2014, a reasonable officer would have known that it is

objectively unreasonable to use significant force on an unarmed person who “has

committed no serious offense, is mentally or emotionally disturbed, has been given

no warning of the imminent use of such a significant degree of force, poses no risk

of flight, and presents no objectively reasonable threat to the safety of the officer or

other individuals.” Deorle, 272 F.3d at 1285; see also Bryan, 630 F.3d at 832

(rejecting the use of intermediate force in a “tense, but static, situation” in which

the individual “was neither a flight risk, a dangerous felon, nor an immediate

threat”). The cases cited by Defendants are not to the contrary, as they involved

far less significant forms of force. See Shafer v. County of Santa Barbara, 868

F.3d 1110, 1113 (9th Cir. 2017) (addressing the use of an arm grab and leg sweep

maneuver); Forrester v. City of San Diego, 25 F.3d 804, 807 (9th Cir. 1994)

(noting that the police “did not deliver physical blows”).

AFFIRMED.

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