NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ANDRES DOMINGUEZ, No. 22-15454
Plaintiff-Appellee, D.C. No. 2:21-cv-00089-SRB-MTM v.
CITY OF SCOTTSDALE, a municipality; et MEMORANDUM* al.,
Defendants-Appellants.
Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding
Argued and Submitted March 7, 2023 Las Vegas, Nevada
Before: CLIFTON, BENNETT, and DESAI, Circuit Judges.
City of Scottsdale police officers Daniel Koller and Nikolas McElley
(“Officers”) appeal the district court’s denial of summary judgment on their
qualified immunity defense to Andres Dominguez’s 42 U.S.C. § 1983 excessive
force claim. The City of Scottsdale appeals the district court’s denial of summary
judgment on Dominguez’s state law negligent supervision and training claim against
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the City. We affirm in part and dismiss in part.
1. We have jurisdiction over the Officers’ interlocutory appeal under 28
U.S.C. § 1291 and the collateral order doctrine. Andrews v. City of Henderson, 35
F.4th 710, 715 (9th Cir. 2022). Our jurisdiction “is limited to legal issues, not factual
disputes.” Id. (citation omitted). “Where disputed facts exist, we assume that the
version of the material facts asserted by . . . the non-moving party[] is correct.” KRL
v. Est. of Moore, 512 F.3d 1184, 1189 (9th Cir. 2008). We can decide only whether,
viewing the evidence and facts in the light most favorable to Dominguez, the non-
moving plaintiff, the Officers (1) violated a Fourth Amendment right that (2) was
clearly established at the time of the violation. Andrews, 35 F.4th at 715. To decide
those questions, we exercise de novo review. Id.
The facts, when construed in Dominguez’s favor, show that the Officers
violated Dominguez’s Fourth Amendment rights. An officer’s use of force is
constitutional only if the government interests at stake justify “the nature and quality
of the intrusion on the individual’s Fourth Amendment interests.” Graham v.
Connor, 490 U.S. 386, 396 (1989) (quotations and citation omitted). Whether the
government interests justify the use of force depends on many factors, “including
the severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether [the suspect] is actively resisting
arrest or attempting to evade arrest . . . .” Id. “[T]he most important [factor] is
2 22-15454 whether the individual posed an immediate threat to officer or public safety.” Young
v. Cty. of Los Angeles, 655 F.3d 1156, 1163 (9th Cir. 2011) (citation omitted).
Construing the facts in Dominguez’s favor, the government interests here did
not justify the amount of force the Officers used.
First, Dominguez’s low-level traffic offense did not warrant the significant
force used by the Officers. Although it is undisputed that Dominguez made a right
turn and, later, a U-turn while Officer Koller was following him, and that he crossed
lanes multiple times, traffic violations rarely justify use of force. See id. at 1164
(“Young’s failure to wear a seatbelt was a run-of-the-mill traffic violation that
clearly provided little, if any, support for the use of force upon him.”) (citing Bryan
v. MacPherson, 630 F.3d 805, 828 (9th Cir. 2010) (holding that “[t]raffic violations
generally will not support the use of a significant level of force”)). The record also
shows that Dominguez told the Officers he did not “have time for this,” and said to
them “You better lose your attitude, okay?” However, even when certain conduct
may be a chargeable offense, “it militates against finding the force used to effect an
arrest reasonable where the suspect was also nonviolent and posed no threat to the
safety of the officers or others.” Bryan, 630 F.3d at 828–29 (quotations and citation
omitted); see also Young, 655 F.3d at 1164–65.
Second, looking at the facts in the light most favorable to Dominguez, it was
not objectively reasonable for the Officers to believe that Dominguez posed an
3 22-15454 immediate threat to them or to public safety. Dominguez immediately stopped his
car, provided his documents when asked, and answered Officer Koller’s questions.
During that exchange, Officer McElley shone a flashlight into Dominguez’s car,
illuminating the inside of the car for the Officers to see. When Officer Koller asked
Dominguez if there were any knives or guns in the car, Dominguez answered clearly
that there were not.
The Officers argue that, from their perspective, Dominguez reached into the
passenger seat in a threatening manner immediately preceding the first application
of force. However, “[a] simple statement by an officer that he fears for his safety or
the safety of others is not enough; there must be objective factors to justify such a
concern.” Bryan, 630 F.3d at 826 (quoting Deorle v. Rutherford, 272 F.3d 1272,
1281 (9th Cir. 2001)). And construing the facts in the light most favorable to
Dominguez, as we must, the body camera video footage presents at least a genuine
issue for a trier of fact regarding how threatening his reach was. Moreover, even if
the Officers perceived Dominguez’s movements inside the car as threatening, the
Officers do not point to evidence that supports the claim that Dominguez posed an
objectively reasonable threat once he was outside the car—at which point a jury
could find from the video that Officer Koller used excessive force when he body-
slammed Dominguez into the ground head-first and continued applying force to his
legs.
4 22-15454 Finally, Dominguez was not actively resisting or evading arrest when Officer
Koller began to use force.1 Dominguez largely complied with the Officers’ orders,
and he did not resist or fight them while he was in the car or on the ground. This
would be true even if Dominguez had failed to comply with the Officers’ orders or
delayed exiting the car. See, e.g., Nelson v. City of Davis, 685 F.3d 867, 882 (9th
Cir. 2012) (“[A]ctive resistance is not to be found simply because of a failure to
comply with the full extent of an officer’s orders.”); see also Bryan, 630 F.3d at
829–30 (“[F]ail[ure] to comply with the command to remain in his vehicle . . . does
not constitute ‘active resistance.’”).
Thus, balancing the government interests against “the nature and quality of
the intrusion,” a jury could conclude that the Officers’ force was not justified.
Dominguez’s constitutional right against this use of force was also clearly
established. Relevant case law made clear at the time of the Officers’ conduct that
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ANDRES DOMINGUEZ, No. 22-15454
Plaintiff-Appellee, D.C. No. 2:21-cv-00089-SRB-MTM v.
CITY OF SCOTTSDALE, a municipality; et MEMORANDUM* al.,
Defendants-Appellants.
Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding
Argued and Submitted March 7, 2023 Las Vegas, Nevada
Before: CLIFTON, BENNETT, and DESAI, Circuit Judges.
City of Scottsdale police officers Daniel Koller and Nikolas McElley
(“Officers”) appeal the district court’s denial of summary judgment on their
qualified immunity defense to Andres Dominguez’s 42 U.S.C. § 1983 excessive
force claim. The City of Scottsdale appeals the district court’s denial of summary
judgment on Dominguez’s state law negligent supervision and training claim against
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the City. We affirm in part and dismiss in part.
1. We have jurisdiction over the Officers’ interlocutory appeal under 28
U.S.C. § 1291 and the collateral order doctrine. Andrews v. City of Henderson, 35
F.4th 710, 715 (9th Cir. 2022). Our jurisdiction “is limited to legal issues, not factual
disputes.” Id. (citation omitted). “Where disputed facts exist, we assume that the
version of the material facts asserted by . . . the non-moving party[] is correct.” KRL
v. Est. of Moore, 512 F.3d 1184, 1189 (9th Cir. 2008). We can decide only whether,
viewing the evidence and facts in the light most favorable to Dominguez, the non-
moving plaintiff, the Officers (1) violated a Fourth Amendment right that (2) was
clearly established at the time of the violation. Andrews, 35 F.4th at 715. To decide
those questions, we exercise de novo review. Id.
The facts, when construed in Dominguez’s favor, show that the Officers
violated Dominguez’s Fourth Amendment rights. An officer’s use of force is
constitutional only if the government interests at stake justify “the nature and quality
of the intrusion on the individual’s Fourth Amendment interests.” Graham v.
Connor, 490 U.S. 386, 396 (1989) (quotations and citation omitted). Whether the
government interests justify the use of force depends on many factors, “including
the severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether [the suspect] is actively resisting
arrest or attempting to evade arrest . . . .” Id. “[T]he most important [factor] is
2 22-15454 whether the individual posed an immediate threat to officer or public safety.” Young
v. Cty. of Los Angeles, 655 F.3d 1156, 1163 (9th Cir. 2011) (citation omitted).
Construing the facts in Dominguez’s favor, the government interests here did
not justify the amount of force the Officers used.
First, Dominguez’s low-level traffic offense did not warrant the significant
force used by the Officers. Although it is undisputed that Dominguez made a right
turn and, later, a U-turn while Officer Koller was following him, and that he crossed
lanes multiple times, traffic violations rarely justify use of force. See id. at 1164
(“Young’s failure to wear a seatbelt was a run-of-the-mill traffic violation that
clearly provided little, if any, support for the use of force upon him.”) (citing Bryan
v. MacPherson, 630 F.3d 805, 828 (9th Cir. 2010) (holding that “[t]raffic violations
generally will not support the use of a significant level of force”)). The record also
shows that Dominguez told the Officers he did not “have time for this,” and said to
them “You better lose your attitude, okay?” However, even when certain conduct
may be a chargeable offense, “it militates against finding the force used to effect an
arrest reasonable where the suspect was also nonviolent and posed no threat to the
safety of the officers or others.” Bryan, 630 F.3d at 828–29 (quotations and citation
omitted); see also Young, 655 F.3d at 1164–65.
Second, looking at the facts in the light most favorable to Dominguez, it was
not objectively reasonable for the Officers to believe that Dominguez posed an
3 22-15454 immediate threat to them or to public safety. Dominguez immediately stopped his
car, provided his documents when asked, and answered Officer Koller’s questions.
During that exchange, Officer McElley shone a flashlight into Dominguez’s car,
illuminating the inside of the car for the Officers to see. When Officer Koller asked
Dominguez if there were any knives or guns in the car, Dominguez answered clearly
that there were not.
The Officers argue that, from their perspective, Dominguez reached into the
passenger seat in a threatening manner immediately preceding the first application
of force. However, “[a] simple statement by an officer that he fears for his safety or
the safety of others is not enough; there must be objective factors to justify such a
concern.” Bryan, 630 F.3d at 826 (quoting Deorle v. Rutherford, 272 F.3d 1272,
1281 (9th Cir. 2001)). And construing the facts in the light most favorable to
Dominguez, as we must, the body camera video footage presents at least a genuine
issue for a trier of fact regarding how threatening his reach was. Moreover, even if
the Officers perceived Dominguez’s movements inside the car as threatening, the
Officers do not point to evidence that supports the claim that Dominguez posed an
objectively reasonable threat once he was outside the car—at which point a jury
could find from the video that Officer Koller used excessive force when he body-
slammed Dominguez into the ground head-first and continued applying force to his
legs.
4 22-15454 Finally, Dominguez was not actively resisting or evading arrest when Officer
Koller began to use force.1 Dominguez largely complied with the Officers’ orders,
and he did not resist or fight them while he was in the car or on the ground. This
would be true even if Dominguez had failed to comply with the Officers’ orders or
delayed exiting the car. See, e.g., Nelson v. City of Davis, 685 F.3d 867, 882 (9th
Cir. 2012) (“[A]ctive resistance is not to be found simply because of a failure to
comply with the full extent of an officer’s orders.”); see also Bryan, 630 F.3d at
829–30 (“[F]ail[ure] to comply with the command to remain in his vehicle . . . does
not constitute ‘active resistance.’”).
Thus, balancing the government interests against “the nature and quality of
the intrusion,” a jury could conclude that the Officers’ force was not justified.
Dominguez’s constitutional right against this use of force was also clearly
established. Relevant case law made clear at the time of the Officers’ conduct that
using substantial force against an individual not engaged in active resistance violates
the Fourth Amendment. Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir.
2013) (“The right to be free from the application of non-trivial force for engaging in
mere passive resistance was clearly established prior to 2008.”); Nelson, 685 F.3d at
1 A reasonable jury might conclude from the video that there was nothing Dominguez could have done to comply with Officer Koller’s orders to exit the vehicle because Officer Koller was blocking the way by standing in the driver-side doorway.
5 22-15454 886 (holding that “a reasonable officer would have known” prior to 2004 that using
substantial force against “non-threatening individuals who had committed at most
minor misdemeanors” violated the Fourth Amendment); Young, 655 F.3d at 1168
(holding that the use of significant force against a passive driver violated a clearly
established right); Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003) (holding
that it was clearly established that grabbing a passive individual by the arm, throwing
them on the ground, twisting their arms, and handcuffing them violated the Fourth
Amendment); Blankenhorn v. City of Orange, 485 F.3d 463, 481 (9th Cir. 2007)
(holding that the law clearly established that officers used excessive force by
punching a passive individual several times, kneeing them, using hobble restraints,
and pressing their face to the ground).
We thus affirm the district court’s denial of summary judgment on the
Officers’ qualified immunity defense.
2. We lack jurisdiction over the City’s interlocutory appeal of the district
court’s denial of summary judgment on Dominguez’s state law negligent supervision
and training claim. The City asks the court to exercise pendent appellate jurisdiction
to review this otherwise non-appealable ruling. This court exercises pendent
appellate jurisdiction only if the issues are “(a) [] so intertwined that the Court must
decide the pendent issue in order to review the claims properly raised on
interlocutory appeal, or (b) resolution of the issue properly raised on interlocutory
6 22-15454 appeal necessarily resolves the pendent issue.” Andrews, 35 F.4th at 720 (alterations
omitted) (quoting Hernandez v. City of San Jose, 897 F.3d 1125, 1139–40 (9th Cir.
2018)). “We interpret this standard ‘narrowly’ and apply it only in ‘extremely
limited’ circumstances.” Id. (quoting Hernandez, 897 F.3d at 1139). Because
Dominguez’s negligent supervision and training claim stand independently against
the City regardless of the Officers’ § 1983 liability, we lack jurisdiction over the
City’s appeal.
AFFIRMED IN PART AND DISMISSED IN PART. Defendants shall
bear the costs on appeal.
7 22-15454