NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 14 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHAN SHAY; NATHAN SHAY, No. 18-56644

Plaintiffs-Appellants, D.C. No. 8:17-cv-00744-AG-ADS v.

CITY OF HUNTINGTON BEACH, a public MEMORANDUM* entity; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Submitted May 8, 2020** Pasadena, California

Before: M. SMITH and OWENS, Circuit Judges, and HUMETEWA,*** District Judge.

Plaintiffs-Appellants Stephan Shay and Nathan Shay (the “Shays”) appeal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Diane J. Humetewa, United States District Judge for the District of Arizona, sitting by designation. the district court’s grant of summary judgment for Defendants-Appellees,

Huntington Beach Police Department Officers Daniel Subia and Brandon Rockett

(the “Officers”) on the Shays’ First Amendment retaliatory arrest, First and Fourth

Amendment excessive force, and Fourth Amendment failure to intervene claims.

We have jurisdiction pursuant to 28 U.S.C. § 1291. “A district court’s decision to

grant . . . summary judgment on the ground of qualified immunity is reviewed de

novo.” Woodward v. City of Tucson, 870 F.3d 1154, 1159 (9th Cir. 2017).

Because the Shays appeal the district court’s summary judgment order, we view

the facts in the light most favorable to them. Scott v. Harris, 550 U.S. 372, 378

(2007). As the parties are familiar with the facts, we do not recount them here.

We affirm.

1. As an initial matter, the record supports finding that the Shays’

evidence sufficiently established that Stephan was tackled to stop his telephone

video recording of Nathan’s arrest, thus they established the elements of their First

Amendment retaliation claims. See O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir.

2016). While the district court erred in its assessment of these elements, as well as

by not undertaking the requisite separate factual inquiries for retaliatory force

versus retaliatory arrest, these errors are harmless because the Officers are

ultimately entitled to qualified immunity on all of the Shays’ retaliation claims. Cf.

Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004) (noting that

2 “excessive force and false arrest factual inquiries are distinct”).

2. The jury’s verdict on the Shays’ remaining claims reflects a finding

that the Officers had probable cause to arrest the Shays. Accordingly, to the extent

that their First Amendment claims are premised on retaliatory arrest, the Supreme

Court’s decision in Nieves v. Bartlett forecloses their claims as a matter of law.

139 S. Ct. 1715, 1724 (2019) (abrogating Ford v. Yakima, 706 F.3d 1188 (9th Cir.

2013)) (holding that a “plaintiff pressing a retaliatory arrest claim must plead and

prove the absence of probable cause for the arrest”); see Campbell v. State of

Washington Dep’t of Soc. & Health Servs., 671 F.3d 837, 842 n.4 (9th Cir. 2011)

(“We can affirm on any ground supported by the record.”); Tennison v. Circus

Circus Enterprises, Inc., 244 F.3d 684 (9th Cir. 2001) (error rendered harmless by

jury finding on related claim).

3. As for their First Amendment retaliatory excessive force and Fourth

Amendment excessive force claims, the Shays failed to identify a case that clearly

establishes that the Officers’ use of force in their arrests was unconstitutional. See

Saucier v. Katz, 533 U.S. 194, 201–02 (2001). That is, they did not identify

precedent that “squarely governs” the specific facts at issue. Kisela v. Hughes, 138

S.Ct. 1148, 1153 (2018) (quoting Mullenix v. Luna, 136 S. Ct. 305, 309 (2015)).

With regard to Officer Rockett’s takedown of Stephan, Plaintiffs-

Appellants’ reliance on Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir.

3 2007), is misplaced given its distinguishable facts. Blankenhorn found clearly

established excessive force where three officers “gang-tackled,” punched, and

placed hobble restraints on “a relatively calm trespass suspect . . . who had been

cooperative in the past and was at the moment not actively resisting arrest.” Id. at

481. Here, even construing the facts in the Shays’ favor, the force used on Stephan

involved a takedown maneuver by one officer and nothing further. A reasonable

officer could have concluded, under the law clearly established at the time, that this

amount of force was not unconstitutionally excessive under the circumstances.

The Shays have not provided a closely analogous case “that articulates a

constitutional rule specific enough to alert these [Officers] in this case that their

particular conduct was unlawful.” Sharp v. County of Orange, 871 F.3d 901, 911

(9th Cir. 2017).

We also find that Officer Subia’s conduct of pointing a Taser at Nathan’s

face, and threatening to use it if he did not comply, did not violate clearly

established law. See Saucier, 533 U.S. at 201–02. While the threat here may have

been excessive, its unconstitutionality is not “beyond debate.” See Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011). Indeed, we afforded qualified immunity to an

officer who used a Taser on a non-threatening suspect under the law applicable

here in Thomas v. Dillard, 818 F.3d 864, 890–92 (9th Cir. 2016) (decided months

after Officer Subia pointed the Taser at Nathan). Thus, the lack of precedent

4 clearly establishing this conduct to be unconstitutional requires finding that Officer

Subia is entitled to qualified immunity on this excessive force claim.

The Shays have not provided a case where an officer acting under similar

circumstances, as those here, was held to have violated the First or Fourth

Amendment. Nor have they established this as a “rare ‘obvious case’” where the

Officers’ conduct was clearly unlawful. District of Columbia v. Wesby, 138 S. Ct.

577, 590 (2018) (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per

curiam)). The district court properly held that the Officers were entitled to

qualified immunity.

4. We agree with Defendants-Appellees’ observation that Plaintiffs-

Appellants’ opening brief references but does not discuss their failure to intervene

claim. Therefore, the argument is deemed waived. See Martinez-Serrano v. I.N.S.,

94 F.3d 1256, 1259 (9th Cir. 1996) (“Issues raised in a brief that are not supported

by argument are deemed abandoned.”).

Accordingly, we affirm the district court’s grant of summary judgment.

AFFIRMED.

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