NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 30 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARTHUR MOORE, individually and as No. 18-15647 successor in interest of Xavier Moore, D.C. No. 3:14-cv-00669-CRB Plaintiff-Appellant,

v. MEMORANDUM*

CITY OF BERKELEY, a municipal corporation; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Argued and Submitted January 9, 2020 San Francisco, California

Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,** District Judge.

This case arose from the tragic death of Xavier “Kayla” Moore. Late one

night in February 2013, officers of the Berkeley Police Department responded to a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. call from Moore’s roommate, whom Moore had kicked out of their apartment. The

roommate told the officers that Moore was schizophrenic, had not been taking her

medication, and had been drinking and using drugs all day. The roommate also

expressed a fear for his safety and suggested that the officers may need to detain

Moore for a mental health evaluation. When they arrived at Moore’s apartment,

Officers Gwendolyn Brown and Kenneth Tu had a lengthy conversation with

Moore, during which she spoke incoherently and appeared to be experiencing

paranoia. Brown and Tu determined that they needed to take Moore into custody

for a mental health evaluation, and attempted to handcuff her. A struggle ensued;

it eventually took six officers to subdue her. Almost immediately after Moore

ceased struggling, she stopped breathing. She died despite efforts to revive her.

Moore’s father (“Plaintiff”) brought this action against the officers involved

(collectively, “Defendants”). The district court granted summary judgment to

Defendants on all of Plaintiff’s claims. Reviewing de novo, and evaluating the

evidence in the light most favorable to Plaintiff, Sharp v. County of Orange, 871

F.3d 901, 909 (9th Cir. 2017), we affirm.1

1. The district court did not err in granting summary judgment on Plaintiff’s

1 In reaching this conclusion, we have not considered the portions of Plaintiff’s excerpts of record that were not before the district court when it ruled on the claims that are the subject of this appeal. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003).

2 Fourth Amendment unlawful arrest claim. A § 1983 claim for unlawful arrest fails

if the arresting officers had probable cause for the arrest. See Luchtel v.

Hagemann, 623 F.3d 975, 979 (9th Cir. 2010). Under California law, “[w]hen a

person, as a result of a mental health disorder, is a danger to others, or to himself or

herself, or gravely disabled, a peace officer . . . may, upon probable cause, take, or

cause to be taken, the person into custody for a period of up to 72 hours for

assessment, evaluation, and crisis intervention.” Cal. Welf. & Inst. Code

§ 5150(a). Here, Defendants had probable cause to detain Moore pursuant to

§ 5150. Moore had forced her roommate out of their apartment in the middle of

the night, and the roommate told Defendants that “he thought Moore was going to

attack him and that he feared for his safety.” He explained that, on past occasions,

Moore had picked up kitchen knives in the apartment and threatened to use them.

Moore was also agitated and angry at various points during her conversation with

Officer Brown. In those circumstances, Defendants had reason to be

concerned that Moore was “a danger to others.” See Cal. Welf. & Inst. Code

§ 5150(a); Bias v. Moynihan, 508 F.3d 1212, 1220-21 (9th Cir. 2007).

2. The district court likewise did not err in granting summary judgment on

Plaintiff’s Fourth Amendment excessive force claim. An excessive force claim

fails if the officers’ use of force was objectively reasonable under the Fourth

Amendment. Glenn v. Washington County, 673 F.3d 864, 871 (9th Cir. 2011). It

3 is undisputed that Moore, who was a very large and strong person, resisted

vigorously when Defendants tried to take her into custody. Defendants

consistently testified that they used only the amount of force necessary to restrain

Moore, that they did not apply pressure on areas of her body that would have

restricted her breathing, and that they moved her into a recovery position as soon

as she stopped struggling. Although we must scrutinize with particular diligence

“officers’ version of events” where “the person most likely to rebut [their

account]—the one killed—can’t testify,” Cruz v. City of Anaheim, 765 F.3d 1076,

1079 (9th Cir. 2014), Plaintiff has neither produced evidence to controvert

Defendants’ testimony nor identified material inconsistencies in their statements.

Plaintiff has thus failed to show a genuine dispute of material fact that would

preclude the entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of

the suit under the governing law will properly preclude the entry of summary

judgment.”).

3. Plaintiff’s Fourteenth Amendment substantive due process claim fails

because there is no evidence that Defendants acted with either “deliberate

indifference” or “a purpose to harm.” See Porter v. Osborn, 546 F.3d 1131, 1137

(9th Cir. 2008). Plaintiff criticizes as an “ill-conceived ruse” Officer Brown’s

telling Moore that she had an outstanding warrant to clear up. Brown explained,

4 however, that her decision to say this to try to convince Moore to leave with the

officers was informed by her experience that individuals like Moore who “have

been detained under [section] 5150 multiple times in the past often get upset and

angry” when they are told “they are being taken into protective custody under

section 5150.” Plaintiff has pointed to no evidence that casts doubt on Brown’s

proffered justification.

4. Finally, we discern no error in the district court’s resolution of Plaintiff’s

state law claims. Plaintiff’s battery and Bane Act claims fail for the same reason

as his excessive force claim under federal law—the force Defendants used during

the struggle with Moore was not unreasonable. See Susag v. City of Lake Forest,

115 Cal. Rptr. 2d 269, 276 (Ct. App. 2002); Cameron v. Craig, 713 F.3d 1012,

1022 (9th Cir. 2013).

Plaintiff’s wrongful death claim is based on allegations of Defendants’

negligence. Liability for negligence under California law, which attaches to “[l]aw

enforcement personnel’s tactical conduct and decisions preceding the use of deadly

force,” is broader than liability for excessive force under federal law, which “tends

to focus more narrowly . . . on the moment when deadly force is used.” Hayes v.

County of San Diego, 305 P.3d 252, 262-63 (Cal. 2013). Here, however,

Defendants here did not use deadly force. See Smith v. City of Hemet, 394 F.3d

689, 693 (9th Cir. 2005) (en banc) (“[D]eadly force [is] force that creates a

5 substantial risk of causing death or serious bodily injury.”). As discussed above,

there is no evidence that Defendants applied force in a way that restricted Moore’s

breathing. And both parties’ medical experts opined that Moore’s death was

caused at least in part by her preexisting heart condition, of which Defendants were

not aware.

We recognize how distressing it is for an effort to check on an individual’s

welfare to end with the death of the person whom the check was intended to

protect. We also recognize that a large community continues to grieve Moore’s

death. But whatever role Defendants may have played in her death, we cannot say

on the evidence before us that they acted unlawfully. Accordingly, the judgment is

AFFIRMED.

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