NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 23 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO DEL VALLE, No. 19-15313

Plaintiff-Appellee, D.C. No. 4:17-cv-03611-JSW

v.

MEMORANDUM*

SCOTT THORNE,

Defendant-Appellant,

and

COUNTY OF SONOMA; et al.,

Defendants.

FERNANDO DEL VALLE, No. 19-15350

Plaintiff-Appellee, D.C. No. 4:17-cv-03611-JSW

v.

BEAU ZASTROW,

Defendant-Appellant,

and

SCOTT THORNE; et al.,

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

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Argued and Submitted January 8, 2020 San Francisco, California

Before: W. FLETCHER and FRIEDLAND, Circuit Judges, and HILLMAN,** District Judge.

Defendants-Appellants Scott Thorne and Beau Zastrow separately appeal

from the district court’s denial of their motions for summary judgment based on

qualified immunity. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de

novo, Greisen v. Hanken, 925 F.3d 1097, 1107 (9th Cir. 2019), we affirm as to

Thorne and reverse as to Zastrow.

1. Viewing the evidence in the light most favorable to Plaintiff-Appellee

Fernando Del Valle, a reasonable jury could conclude that Thorne’s use of a taser

and baton on Del Valle constituted excessive force.

In September 2016, Thorne and Zastrow, who were then Sonoma County

deputy sheriffs, responded to a neighbor’s call about a domestic dispute at Del

Valle’s house. The neighbor reported that the dispute sounded verbal, not

** The Honorable Timothy Hillman, United States District Judge for the District of Massachusetts, sitting by designation.

2 physical, and that Del Valle’s wife sounded like the aggressor. The deputies

arrived to find Del Valle alone in a locked bedroom. Bodycam footage shows that

when Thorne kicked open the door and entered, Del Valle was lying shirtless on

the bed, using a cellphone with both hands in view. Thorne ordered Del Valle

several times to stand up. Del Valle did not do so, instead stating calmly that he

was calling his lawyer. Thorne reached out four times to grab Del Valle’s right

forearm, and each time Del Valle pulled his arm out of Thorne’s grasp. On the

fifth occasion, Thorne appeared to reach for Del Valle’s cellphone, causing Del

Valle to push Thorne’s arm away. Immediately, Thorne discharged his taser into

Del Valle’s bare chest from close range. Several seconds later, Thorne struck Del

Valle’s right knee with a baton.1

A reasonable juror could conclude that Thorne’s use of force under these

circumstances was objectively unreasonable. See Graham v. Connor, 490 U.S.

386, 396-97 (1989). Del Valle had not been verbally or physically aggressive and

did not pose an immediate threat to anyone. He had not committed any severe

offenses. See Young v. County of Los Angeles, 655 F.3d 1156, 1164-65 (9th Cir.

2011). And although he actively resisted Thorne’s attempts to grab his arm and

cellphone, that “resistance did not involve any violent actions towards the

1 Before the district court, Thorne sought and was denied qualified immunity as to both his deployment of the taser and his use of the baton. Thorne contests only the denial of qualified immunity as to his use of the taser in this appeal.

3 officers.” See Mattos v. Agarano, 661 F.3d 433, 445 (9th Cir. 2011) (en banc);

Bryan v. MacPherson, 630 F.3d 805, 830 (9th Cir. 2010). Moreover, it was clearly

established at the time of Thorne’s actions that discharging a taser on a non-

threatening individual who had not committed a serious crime and had not engaged

in aggressive or violent resistance would violate the Fourth Amendment. See

Mattos, 661 F.3d at 445-46; see also Bonivert v. City of Clarkston, 883 F.3d 865,

880 (9th Cir. 2018). The district court thus appropriately denied Thorne’s motion

for summary judgment.

2. Del Valle does not dispute that Zastrow did not personally use

unreasonable force but argues that he is liable as an “integral participant” in

Thorne’s allegedly excessive use of force. We disagree.

A defendant officer may be held liable as an integral participant in another

officer’s constitutional violation if the defendant was “aware of the [other

officer’s] decision” to violate the law, “did not object to it,” and “participated in

some meaningful way” in the violation. Boyd v. Benton County, 374 F.3d 773, 780

(9th Cir. 2004). After Del Valle left the bed, Zastrow held down Del Valle’s legs

while Thorne applied a six-second carotid restraint on Del Valle and administered

several baton blows. But Del Valle has not shown that Zastrow was aware Thorne

would engage in such force or that he had an opportunity to object. Zastrow

maintains that he did not know Thorne was applying the carotid restraint because

4 Thorne’s body was blocking Zastrow’s view. Del Valle has identified no evidence

to controvert this account. And Zastrow could not have anticipated Thorne’s

striking Del Valle with a baton, which occurred with minimal forewarning.

Accordingly, Zastrow’s role did not render him an integral participant in Thorne’s

actions, and Zastrow is entitled to qualified immunity.

AFFIRMED in part, REVERSED in part, and REMANDED.2 The parties

shall bear their own costs on appeal.

2 We decline Del Valle’s request to impose sanctions on Thorne and Zastrow for bringing frivolous appeals. These appeals were not “wholly without merit,” and thus not frivolous for the purposes of Federal Rule of Appellate Procedure 38. See Blixseth v. Yellowstone Mountain Club, LLC, 796 F.3d 1004, 1007 (9th Cir. 2015) (quotation marks omitted).

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