NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 7 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELISE BROWN, an individual, No. 21-56357

Plaintiff-Appellant, D.C. No. 5:20-cv-01116-MCS-SP v.

COUNTY OF SAN BERNARDINO, a MEMORANDUM* municipal entity; CITY OF CHINO, a municipal entity; MATTHEW GREGORY, Officer; MADALYN BRILEY, Officer; DOES, 3-10, inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Mark C. Scarsi, District Judge, Presiding

Argued and Submitted December 7, 2022 Pasadena, California

Before: BERZON, R. NELSON, and BADE, Circuit Judges. Partial Concurrence and Partial Dissent by Judge R. NELSON.

Elise Brown alleges in this § 1983 action that City of Chino police officers

Madalyn Briley and Matthew Gregory (collectively, “Defendants”), after they

stopped her car on suspicion of vehicle theft, subjected her to excessive force and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. an unlawful arrest in violation of her Fourth Amendment rights. She appeals the

district court’s grant of summary judgment in favor of Defendants on qualified

immunity grounds. Reviewing de novo, Nehad v. Browder, 929 F.3d 1125, 1132

(9th Cir. 2019), we affirm in part and reverse in part.

1. When evaluating a Fourth Amendment claim of excessive force, we ask

“whether the officers’ actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them,” keeping in mind three non-exhaustive factors:

“the severity of the crime at issue, whether the suspect poses an immediate threat

to the safety of the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.”1 Graham v. Connor, 490 U.S. 386, 396–97

(1989). “The most important factor is whether the suspect posed an immediate

threat to the safety of the officers or others.” Thomas v. Dillard, 818 F.3d 864, 889

(9th Cir. 2016).

The officers initially acted reasonably by removing Brown from her car and

ascertaining whether she was armed or posed a threat. However, after Brown

complied immediately with all instructions, the officers confirmed she was not

armed, and “there was no indication at the scene that [she] posed an immediate

1 The first and third Graham factors are not disputed: we have previously concluded that “the crime at issue (stolen vehicle or plates) [is] arguably severe,” Green v. City & County of San Francisco, 751 F.3d 1039, 1050 (9th Cir. 2014), and Brown was not resisting arrest or attempting to evade arrest by flight. Instead, she was completely compliant with the officers’ instructions.

2 threat to the safety of the officers or others,” Green, 751 F.3d at 1050, a jury could

find that it was not reasonable for Defendants to believe that Brown—an 83-year-

old, 5’2”, 117-pound, unarmed, completely compliant woman—posed any

immediate threat. 2 Therefore, a jury could find that it was not reasonable for

Defendants to force Brown to her knees and handcuff her. See id.

As to whether the law was clearly established, “we need look no further than

Graham’s holding that force is only justified when there is a need for force.”

Blankenhorn v. City of Orange, 485 F.3d 463, 481 (9th Cir. 2007). When the

Graham factors “do not support a need for force, ‘any force used is constitutionally

unreasonable.’” Green, 751 F.3d at 1049 (quoting Lolli v. County of Orange, 351

F.3d 410, 417 (9th Cir. 2003)). And, under clearly established law in this Circuit,

“the crime of vehicular theft . . . without more, does not support a finding that [the

suspect] pose[s] a threat” justifying the use of force when the suspect is

outnumbered, unarmed, and compliant.3 Id. at 1049–51. Therefore, the district

2 Sergeant McArdle testified that he told Brown, “obviously, you do not look like you were going to be a violent suspect.” 3 The dissent asserts that there are differences in the degree of force used in Green and the force used here. True, but beside the point. We rely on Green as clearly established law only with respect to whether the plaintiff posed an immediate threat solely by virtue of having been suspected of having stolen a car, not with regard to whether the force used was reasonable or whether the level of suspicion with regard to having stolen a car was higher or lower. The facts indicating that the plaintiff in Green did not present an immediate threat are materially the same as the facts at issue here. See Green, 751 F.3d at 1048, 1050.

3 court erred when it concluded that Defendants were entitled to qualified immunity

as to the excessive force claim.

2. As to the unlawful arrest claim, even if Brown’s detention rose to the

level of an arrest, and even if Defendants lacked probable cause to arrest her,

Defendants are entitled to qualified immunity because they did not violate a clearly

established right.

Whether an unlawful arrest violated clearly established law depends on

“whether it is reasonably arguable that there was probable cause for arrest—that

is, whether reasonable officers could disagree as to the legality of the arrest such

that the arresting officer is entitled to qualified immunity.” Sialoi v. City of San

Diego, 823 F.3d 1223, 1233 (9th Cir. 2016) (quoting Rosenbaum v. Washoe

County, 663 F.3d 1071, 1076 (9th Cir. 2011)). Brown relies solely on Green to

argue that Defendants’ conduct violated clearly established law. However, the

analysis in Green is not applicable here because that case involved an

unconfirmed, mistaken license plate match. 751 F.3d at 1045–46. Green thus did

not provide adequate notice to the officers that Brown’s arrest, based on a

confirmed license plate match, violated a clearly established constitutional right.

The district court did not err when it held that Defendants are entitled to qualified

immunity as to the unlawful arrest claim.

4 AFFIRMED IN PART and REVERSED IN PART.4

4 The motion to dismiss the City of Chino from this appeal, Dkt. 22, is granted.

5

FILED

Brown v. County of San Bernardino, No. 21-56357 FEB 7 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

NELSON, R., Circuit Judge, concurring in part and dissenting in part:

I concur in the majority’s holding to affirm the district court on Brown’s

unlawful arrest claim. But I dissent from the majority’s holding to reverse the district

court on Brown’s excessive force claim. Assuming without deciding that the

defendants used excessive force, the district court held that the unlawfulness of the

defendants’ conduct was not clearly established. Brown v. County of San

Bernardino, No. 5:20-cv-01116 MCS (SPx), 2021 WL 5935476, at *3–4 (C.D. Cal.

Oct. 14, 2021). I would affirm the district court on that basis.

To put this issue in context, the majority holds it is clearly established that

police who encounter an unarmed grand theft auto suspect of small stature are

forbidden from instructing the suspect to kneel for a few seconds and placing the

suspect in handcuffs for a couple minutes while they verify automobile ownership

and confirm nobody else is in the vehicle. We have never so held. And the

majority’s holding today threatens to chill future police enforcement and

investigation in these serious cases. To be sure, handcuffing a well-behaved,

unarmed, 83-year-old woman who complied with police direction may violate

standards of societal decorum. In hindsight, it seems unnecessary. And grandmas

around the country may rightfully wag an experienced finger chastising the police

action here. But that is not the standard for establishing a violation of the United

1 States Constitution. More importantly, we have never held that, in these

circumstances, instructing a grand theft auto suspect to kneel for a few seconds and

handcuffing her for just three minutes while her ownership of the vehicle was

verified and the vehicle was cleared constitutes excessive force under the Fourth

Amendment.

To be clearly established, the question of whether the defendants’ use of force

was excessive must have been placed “beyond debate” by existing precedent. See

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (citation omitted). We

can deny qualified immunity only if “a reasonable officer would have understood

her conduct to be unlawful in that situation.” Torres v. City of Madera, 648 F.3d

1119, 1123 (9th Cir. 2011).

The majority holds that it was clearly established that police cannot use any

force against a person who poses no threat. This mischaracterizes our precedent—

and does so in far too generalized terms. See Kisela, 138 S. Ct. at 1152 (“This Court

has repeatedly told courts—and the Ninth Circuit in particular—not to define clearly

established law at a high level of generality.” (cleaned up)). The cases the majority

cites to support this holding, Blankenhorn v. City of Orange, 485 F.3d 463, 481 (9th

Cir. 2007) and Green v. City & County of San Francisco, 751 F.3d 1039, 1049 (9th

Cir. 2014), state that force is only justified when there is a “need for force.” But

whether a person posed a threat is not the only factor in determining whether force

2 was needed—we must also consider “the severity of the crime at issue” and “whether

[the suspect] is actively resisting arrest or attempting to evade arrest by flight.”

Graham v. Connor, 490 U.S. 386, 396 (1989).

Here, as the majority points out, the “severity of the crime at issue”—stealing

a vehicle—is “arguably severe.” See Green, 751 F.3d at 1050. But according to the

majority, Green clearly establishes that the crime of vehicular theft alone does not

support using any force “when the suspect is outnumbered, unarmed, and

compliant.”

It is true that in Green, we found suspicion of a stolen vehicle alone

insufficient to make the force used in that case constitutional, but we did not find

that any force would have been unjustified. See id. (suggesting lower degrees of

force the officers could have employed). A jury might find that suspicion of a stolen

vehicle alone does not make the force used here constitutional either. But the

question before us is whether it was clearly established that the force used here was

unconstitutional. And there are marked differences between the force used in Green

and the force used here. 1 So, while Green may clearly establish that the degree of

1 It is not “beside the point” that Green involved a higher degree of force than that used here. The majority claims that under Green, the crime of vehicular theft alone does not justify using any force. That is not what Green says. In Green, we merely held that vehicular theft alone did not justify the force used there, not that any force was unjustified. See Green, 751 F.3d at 1050. It is very much to the point to explain why the differences in force between the two cases mean that Green does not clearly 3 force used in that case cannot be justified based on suspicion of a stolen vehicle

alone, it does not clearly establish that the degree of force employed here was

unjustified on that basis.

The force employed in Green was far more intrusive than the force used

against Brown. In Green, we determined the “degree of intrusion was . . . severe”

because the suspect

was ordered out of her vehicle by as many as six officers, many of whom pointed handguns and a shotgun directly at her. She was forced to her knees and handcuffed, which she had difficulty doing due to her knee problems, and officers continued to train weapons upon her while she was handcuffed on the ground. She estimates that she was in handcuffs for as many as ten minutes and states in deposition that the experience has caused her lasting psychological impact.

Id. at 1049. At least three of these key facts differ here. First, there is no evidence

that Brown had knee problems or any other difficulty kneeling. Second, the

defendants did not train their firearms on Brown while she was handcuffed; they

briefly held their firearms at a “low ready” position and then merely kept their

firearms unholstered. In Green, we approved this very firearm position as mitigating

the degree of intrusion. Id. at 1050 (stating that the officers “could have held their

weapons at a ‘low ready’ position rather than pointing them directly at [the

establish that the crime of vehicular theft alone foreclosed the lower degree of force used here. 4 suspect].”). It is hard to explain how officers who followed the direction in Green

on this issue can now be found to have clearly violated our direction in Green. Third,

while the suspect in Green was handcuffed for up to ten minutes, Brown was in

handcuffs for no more than three. Indeed, she was released as soon as the officers

verified Brown owned the vehicle and confirmed nobody else was inside.

The majority also claims Green clearly establishes that when the government

interests “do not support a need for force, ‘any force used is constitutionally

unreasonable.’” See id. at 1049 (quoting Lolli v. County of Orange, 351 F.3d 410,

417 (9th Cir. 2003)). Here, too, Green does not clearly establish that the government

interests do not support a need for force because the interests here are different.

We assess the government interests by considering: “(1) the severity of the

crime at issue, (2) whether the suspect poses an immediate threat to the safety of the

officers or others, and (3) whether he is actively resisting arrest or attempting to

evade arrest by flight.” Id. (quoting Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir.

1994)). Green does not clearly establish that the government interests do not support

a need for force here because the first factor—the severity of the crime at issue—is

meaningfully different.

In Green, the officers conducted a high-risk stop based on an unconfirmed

ALPR hit, meaning the license plate number on the suspect’s vehicle was not

actually listed in the stolen vehicle database. Id. at 1042–43. Here, by contrast, the

5 defendants conducted a high-risk stop based on a confirmed ALPR hit—the license

plate number on Brown’s vehicle was confirmed to have been reported as stolen

after the on-duty dispatcher ran the plate number through the California Law

Enforcement Telecommunications System and contacted the San Bernardino

County Sheriff’s Department. Further, unlike the suspect in Green who was stopped

driving “on Mission Street in San Francisco,” id. at 1042, Brown was stopped

outside a prison, which the district court found is “a place known for stolen vehicles,

weapons, and contraband.” Brown, 2021 WL 5935476, at *3 (internal quotations

and citation omitted).

The differences between Green and the facts here matter because “[u]se of

excessive force is an area of the law ‘in which the result depends very much on the

facts of each case,’ and thus police officers are entitled to qualified immunity unless

existing precedent ‘squarely governs’ the specific facts at issue.” Kisela, 138 S. Ct.

at 1153 (quoting Mullenix v. Luna, 577 U.S. 7, 13 (2015) (per curiam)). These

differences might not make the defendants’ conduct here constitutional. This was a

frightening experience for Brown. And the defendants may not have used perfect

judgment in handcuffing her and instructing her to kneel. But what happened here

is different from what happened in Green. These differences mean that Green does

not “squarely govern[]” the specific facts here, so Green did not clearly establish

that the defendants’ use of force against Brown was unlawful. See id.

6 Qualified immunity “protects all but the plainly incompetent or those who

knowingly violate the law.” Id. at 1152 (quoting White v. Pauly, 580 U.S. 73, 79

(2017) (per curiam)). Regardless of whether the defendants used excessive force,

that does not describe the defendants’ conduct here. I respectfully dissent.

7