FILED

NOT FOR PUBLICATION

APR 21 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LISA MARIE CLOSE, No. 19-15702

Plaintiff-Appellant, D.C. No. 2:17-cv-01313-WBS-DB v.

CITY OF VACAVILLE; STUART K. MEMORANDUM*

TAN,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding

Argued and Submitted April 15, 2021 San Francisco, California

Before: THOMAS, Chief Judge, and WATFORD and R. NELSON, Circuit Judges.

Lisa Marie Close appeals from the district court’s judgment in her 42 U.S.C.

§ 1983 action, which arose from her arrest for trespassing at Sutter Regional

Medical Center. The district court granted summary judgment to defendant Stuart

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Tan on her excessive force and unlawful arrest claims on qualified immunity

grounds. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part

and reverse in part. Because the parties are familiar with the history of this case,

we need not recount it here.

I

The district court properly granted summary judgment to Tan on Close’s

unlawful arrest claim on qualified immunity grounds.1 An officer is entitled to

qualified immunity if “it is reasonably arguable that there was probable cause for

arrest.” Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1076 (9th Cir. 2011) (per

curiam) (emphasis in original). California law provides that a person commits

criminal trespass by “[r]efusing . . . to leave . . . real property, or structures . . .

lawfully occupied by another and not open to the general public, upon being

requested to leave by (1) a peace officer at the request of the owner . . . or (2) the

owner, the owner’s agent, or the person in lawful possession.” Cal. Penal Code §

602(o). In addition, California Penal Code § 602.1(a) provides that a person

commits criminal trespass by “intentionally interfer[ing] with any lawful business”

and by “refus[ing] to leave the premises of the business establishment after being

1 The district court declined to reach Close’s unlawful detention claim, and Close does not appeal this decision. 2 requested to leave by the owner or the owner’s agent, or by a peace officer acting

at the request of the owner or owner’s agent.”

Close concedes she was asked to leave the exam room at least two times by

a security guard prior to the arrival of Officer Tan. It is undisputed Officer Tan

was asked to remove Close from the property because she had declined to leave.

Thus, it is certainly at least arguable that there was probable cause for trespassing

under California law. Close attempts to draw a distinction between the exam room

and the “premises” or “structure” under the statutes, but cites no support for that

distinction in California law. The district court correctly granted summary

judgment on the unlawful arrest claim.

II

Genuine issues of material fact preclude summary judgment on the excessive

force claim, both as to the level of force employed by the officer and the level of

resistance posed by the plaintiff. In evaluating a grant of qualified immunity,

viewing the evidence in the light most favorable to plaintiff, we first consider

whether the officer’s actions violated a constitutional right, and second, whether

that right was clearly established at the time of the incident. See Mattos v.

Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (en banc).

3 When evaluating a claim of excessive use of force in violation of the Fourth

Amendment, this court asks “whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting them.” Graham v.

Connor, 490 U.S. 386, 397 (1989). “In assessing the objective reasonableness of a

particular use of force,” under the Graham factors, we “consider: (1) ‘the severity

of the intrusion on the individual’s Fourth Amendment rights by evaluating the

type and amount of force inflicted,’ (2) ‘the government’s interest in the use of

force,’ and (3) the balance between ‘the gravity of the intrusion on the individual’

and ‘the government's need for that intrusion.’” Rice v. Morehouse, 989 F.3d

1112, 1121 (9th Cir. 2021) (quoting Lowry v. City of San Diego, 858 F.3d 1248,

1256 (9th Cir. 2017) (en banc)); see Graham, 490 U.S. at 396–97.

Viewing the evidence in the light most favorable to Close, there are genuine

issues of disputed fact as to whether the force Tan used in arresting her was

unconstitutionally excessive under the Graham factors. A reasonable jury could

find that the amount of force used, enough to fracture her arm, was significant.

The government’s interest in the use of that force was minimal: Close was being

arrested for a nonviolent misdemeanor and posed, at most, a minimal threat to

Tan’s safety. There are also genuine issues of disputed fact as to the amount and

4 type of resistance Close employed. Gravelet-Blondin v. Shelton, 728 F.3d 1086,

1092 (9th Cir. 2013).2

Turning to the next step of the inquiry, clearly established law prior to

Close’s 2016 arrest held that non-trivial force was unconstitutionally excessive

when used against an individual who was passively resisting arrest. Id. at 1093;

see also Nelson v. City of Davis, 685 F.3d 867, 881 (9th Cir. 2012) (defining

“passive resistance” as “failure to fully or immediately comply with an officer’s

orders”). Thus, there are genuine issues of material fact sufficient to survive

summary judgment, regardless of whether Close was passively resisting or

minimally resisting.

A reasonable jury could find that exerting enough force on Close’s arm to

fracture it, partially dislocate her elbow, and tear the soft tissue, rose to the level of

non-trivial force. See, e.g., Young v. Cnty. of Los Angeles, 655 F.3d 1156, 1158

(9th Cir. 2011) (holding that significant force was used where a police officer

physically struck and used pepper spray on an arrestee ); Meredith v. Erath, 342

F.3d 1057, 1061 (9th Cir. 2003) (holding that it was clearly established that

twisting and injuring an arrestee’s arm while handcuffing her and forcibly

2 The district court did not abuse its discretion in disregarding Close’s assertion that Tan choked her during the arrest pursuant to the “sham affidavit” rule. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). 5 throwing her to the ground was unreasonable when she was passively resisting);

Hansen v. Black, 885 F.2d 642, 645 (9th Cir. 1989) (bruising on arm while

handcuffing sufficient to create a triable factual issue as to excessive force); see

also Rice, 989 F.3d at 1126 (describing clearly established law as of 2011 where

non-trivial force was used (citing Young, 655 F.3d at 1158; Nelson, 685 F.3d at

881–82)).

“[N]on-trivial force [is] not justified in the face of passive or even minimal

resistance.” Rice, 989 F.3d at 1126 (emphasis added) (citing Nelson, 685 F.3d at

881–82) (describing clearly established law in 2011). Tan contends that Close was

resisting arrest. However, there are disputed issues of fact on that question, and

even the resistance that Tan alleges—Close “tensing her muscles” and “pulling her

hand away,”—is at most minimal resistance. Because clearly established law held

that the alleged degree of force was excessive whether Close was passively or

minimally resisting, and because there are genuine disputed issues of material fact

on this case, the district court erred in granting summary judgment for Tan on

Close’s excessive force claim.

Each party shall bear their own costs.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

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