1 WO JDN 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Justin Matthew Brown, No. CV 19-05048-PHX-JAT (CDB) 10 11 Plaintiff, ORDER 12 v. AND 13 ORDER TO SHOW CAUSE Unknown Alexander, et al., 14 15 Defendants.
16 17 Plaintiff Justin Matthew Brown, who is currently confined in the Arizona State 18 Prison in Kingman, Arizona, filed this pro se civil rights action against Mesa Police 19 Officers Jacob Alexander and Jared Bowman. (Doc. 1.) Before the Court is Defendants’ 20 Motion for Summary Judgment. (Doc. 31.) The Court will grant the Motion in part and 21 deny it in part. The Court will also issue an Order directing Brown to show cause why this 22 action should not be dismissed for failure to prosecute. 23 I. Background 24 Brown’s claim arose during his arrest on February 21, 2018. (Doc. 1 at 3.) He 25 alleged that he was a passenger in a car when Officers Alexander and Bowman stopped the 26 car, at which point Brown fled on foot. (Id.) Brown alleged that Bowman gave chase in 27 his patrol vehicle and then hit Brown with the vehicle. (Id. at 3–4.) Brown claimed that 28 Bowman and Alexander then beat, kicked, and punched Brown even though he was not 1 resisting and was incapacitated from being hit by the vehicle. (Id. at 4.) Brown stated that 2 he suffered permanent facial scars, cuts and contusions, and post-traumatic stress disorder 3 as a result of Defendants’ conduct. (Id. at 3–4.) On screening, the Court determined that 4 Brown sufficiently stated Fourth Amendment excessive force claims against Defendants. 5 (Doc. 6.) 6 Defendants move for summary judgment on the grounds that their actions were 7 reasonable in the circumstances and they are entitled to qualified immunity. (Doc. 31.) 8 The Court issued an Order with the Notice required under Rand v. Rowland, 154 9 F.3d 952, 962 (9th Cir. 1998) (en banc), which informed Brown of the requirements under 10 Federal Rule of Civil Procedure 56 and set a deadline for filing a response to Defendants’ 11 Motion. (Doc. 33.) Brown filed a Motion for Extension of Time to File Response, which 12 the Court granted, and a new deadline of January 21, 2021 was set to file the response. 13 (Docs. 35, 37.) Thereafter, Brown did not file a response, and the time to do so has expired. 14 II. Summary Judgment Standard 15 A court must grant summary judgment “if the movant shows that there is no genuine 16 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 17 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 18 movant bears the initial responsibility of presenting the basis for its motion and identifying 19 those portions of the record, together with affidavits, if any, that it believes demonstrate 20 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 21 If the movant fails to carry its initial burden of production, the nonmovant need not 22 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 23 1102–03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 24 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 25 contention is material, i.e., a fact that might affect the outcome of the suit under the 26 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 27 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 28 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 1 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 2 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288–89 (1968); however, 3 it must “come forward with specific facts showing that there is a genuine issue for trial.” 4 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 5 citation omitted); see Fed. R. Civ. P. 56(c)(1). 6 At summary judgment, the judge’s function is not to weigh the evidence and 7 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 8 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 9 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 10 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 11 Further, where the nonmovant is pro se, the court must consider as evidence in 12 opposition to summary judgment all of the pro se litigant’s contentions that are based on 13 personal knowledge and that are set forth in verified pleadings and motions. Jones v. 14 Blanas, 393 F.3d 918, 923 (9th Cir. 2004); see Schroeder v. McDonald, 55 F.3d 454, 460 15 (9th Cir. 1995).1 16 III. Relevant Facts 17 On February 19, 2018, Alexander arrested Brown for possession of 18 methamphetamines. (Doc. 32, Ex. 2, Alexander Decl. ¶ 3 (Doc. 32-2 at 2).) After he was 19 brought to the jail, Brown told Alexander that he could obtain a gun quickly, and Brown 20 offered to set up the person allegedly running this gun-selling scheme in exchange for his 21 release. (Id. ¶ 4.) Alexander refused the setup offer. (Id. ¶ 5.) A short time later, Brown 22 was transported to the hospital due to difficulty breathing. (Id.) Due to a high volume of 23 police emergency calls, Brown was released from custody at the hospital. (Id. ¶ 6.) When 24 Alexander learned that Brown had been released, he made plans to re-arrest him at a later 25 time. (Id.) 26
27 1 As stated, Brown did not file a response to the Motion for Summary Judgment; however, his Complaint is verified, and earlier in the proceedings, he submitted an 28 affidavit. (Docs. 1, 15.) Both filings are considered as evidence in opposition to Defendants’ Motion. 1 On February 21, 2018, Alexander and Bowman went to Brown’s residence to re- 2 arrest him for the previous drug-related crime. (Id. ¶ 8.) Defendants saw Brown exit his 3 apartment and get into the passenger seat of his cousin’s black Mercedes. (Id. ¶ 10; Ex. 1, 4 Brown Dep. 19:25–20:2, July 8, 2020.) Brown was carrying a tan ammo case. (Id., Ex. 1, 5 Brown Dep. 19:25–20:1; Ex. 2, Alexander Decl. ¶ 10.) Brown and his cousin drove to the 6 7-Eleven on 8th Avenue and Dobson Road in Mesa and parked the car. (Id., Ex. 1, Brown 7 Dep. 20:2–5.) 8 Police SUVs immediately pulled up behind the Mercedes with their emergency 9 lights on, and Brown stepped out of the car. (Id. 20:6–7; Ex. 2, Alexander Decl. ¶ 11.) An 10 officer in a tactical vest pointed a shotgun at Brown and said, “don’t you run, mother 11 fucker.” (Id., Ex. 1, Brown Dep. 20:7–9.) Brown took off running, and he heard shots 12 behind him. (Id. 20:10–11.) Brown ran across Dobson Road through heavy traffic, and 13 Alexander chased him on foot. (Id., Ex. 2, Alexander Decl. ¶¶ 13–14.) Bowman got into 14 his police vehicle and began to pursue Brown. (Id. ¶ 15.) Brown ran across a few more 15 roads and then jumped to climb over a wall surrounding an apartment complex. (Id. ¶ 16; 16 Ex. 1, Brown Dep. 20:11–12.) As Brown was climbing the wall, he was shot in the right 17 butt cheek with a beanbag shot gun and he fell over the wall. (Id., Ex. 1, Brown Dep. 18 20:12–14; Ex. 2, Alexander Decl. ¶ 16.) 19 From this point, the parties’ versions of events differ. 20 According to Defendants, Alexander climbed the wall and looked for Brown. (Id., 21 Ex. 2, Alexander Decl. ¶ 17.) A woman by her car pointed toward the center of the 22 apartment complex, so Alexander began to run in that direction. (Id.) As he ran through 23 the complex, he saw several tenants, including children, looking toward the center of the 24 complex. (Id.) As Alexander approached the complex’s main driveway, he saw Brown 25 running and he also saw Bowman pull into the complex’s main driveway and come to a 26 stop in Brown’s path. (Id. ¶ 18.) 27 Meanwhile, Bowman drove his vehicle into the apartment complex main driveway 28 and saw Brown running toward the center of the complex. (Id., Ex. 3, Bowman Decl. 1 ¶¶ 10–11.) Bowman pulled his vehicle into Brown’s path and came to complete stop. (Id. 2 ¶ 11.) Brown then attempted to slide across the hood of the vehicle, but he lost his footing 3 and fell to the ground. (Id.) Bowman exited his vehicle and saw Brown get up to continue 4 to flee. (Id. ¶ 12.) Bowman quickly tackled Brown to the ground and attempted to handcuff 5 him, but Brown continued to struggle and resist. (Id.) A few seconds later, Alexander 6 arrived to assist, and Brown punched, kicked, and clawed at the officers to avoid being 7 handcuffed. (Id. ¶ 12; Ex. 2, Alexander Decl. ¶ 21.) At one point, Brown grabbed one of 8 Alexander’s fingers and attempted to bend it backwards. (Id., Ex. 2, Alexander Decl. ¶ 21.) 9 After wrestling with Brown for about 30 seconds, Defendants were able to handcuff him. 10 (Id.) 11 According to Brown, after falling over the wall, he continued running and went out 12 onto Eighth Avenue, where the police SUV driven by Bowman began to chase him down. 13 (Id., Ex. 1, Brown Dep. 20:14–18.) Brown heard the vehicle’s tires squeal as it sped up 14 behind him. (Doc. 15, Brown Aff. ¶ 4.) The SUV chased Brown down, and right before 15 it hit him, Brown jumped in the air. (Doc. 32, Ex. 1, Brown Dep. 20: 14–18.) The right 16 side of the SUV hit Brown, and he hit the hood, and then the SUV hit the brakes, and 17 Brown flew approximately 20 feet in the air and fell on his head and face. (Id. 20:19–22; 18 Doc. 15, Brown Aff. ¶ 5.) Brown was so injured from the impact that he could hardly 19 move. (Doc. 15, Brown Aff. ¶ 6.) Defendants were instantly on Brown and began 20 punching and kicking Brown. (Id. 20:23–24.) Defendants handcuffed Brown almost 21 immediately. (Doc. 32, Ex. 1, Brown Dep. 20:25.) After Brown was handcuffed, 22 Defendants kept beating Brown and threatened to kill him, even though he was unarmed 23 and not resisting. (Doc. 15, Brown Aff. ¶¶ 7, 11; Doc. 1 at 4.)2 24 An ambulance was called to the scene and Brown was taken to Banner Desert 25 Hospital for stitches and x-rays. (Doc. 32, Ex. 1, Brown Dep. 5–6, 13–14; Doc. 15, Brown 26
27 2 Brown alleged that a third officer filmed the entire incident on his cell phone. 28 (Doc. 1 at 3; Doc. 32, Brown Dep. 21:6–8.) No cell phone video footage, nor any body camera video footage, was submitted with the summary judgment briefing. 1 Aff. ¶¶ 9–10.) Brown was then taken to the Maricopa County Jail, where he was under 2 wound care for weeks. (Doc. 15, Brown Aff. ¶ 10.) 3 Brown subsequently pleaded guilty to a charge of aggravated assault on an officer, 4 and he was sentenced to prison. (Id. ¶ 11.) 5 IV. Fourth Amendment Excessive Force Claim 6 A. Legal Standard 7 A claim that law enforcement officers used excessive force in the course of an arrest 8 is analyzed under the Fourth Amendment and its “reasonableness” standard. Graham v. 9 Connor, 490 U.S. 386, 395 (1989). This inquiry requires a “careful balancing of the nature 10 and quality of the intrusion on the individual’s Fourth Amendment interest against the 11 countervailing governmental interests.” Id. To determine whether a Fourth Amendment 12 violation has occurred, the court conducts a three-step analysis assessing (1) the nature of 13 force inflicted; (2) the governmental interests at stake, which involve factors such as the 14 severity of the crime, the threat posed by the suspect, and whether the suspect is resisting 15 arrest (the “Graham factors”); and (3) whether the force used was necessary. Espinosa v. 16 City & Cnty. of S.F., 598 F.3d 528, 537 (9th Cir. 2010) (citing Graham, 490 U.S. at 396– 17 97, and Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003)). “The reasonableness of 18 a particular use of force must be judged from the perspective of a reasonable officer on the 19 scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396 (1989) 20 (citing Terry v. Ohio, 392 U.S. 1, 20–22 (1968)). This is because “[t]he calculus of 21 reasonableness must embody allowance for the fact that police officers are often forced to 22 make split-second judgments—in circumstances that are tense, uncertain, and rapidly 23 evolving—about the amount of force that is necessary in a particular situation.” Id. at 396– 24 97. 25 At the summary judgment stage, once the court has “determined the relevant set of 26 facts and drawn all inferences in favor of the nonmoving party to the extent supportable by 27 the record,” the question of whether an officer’s actions were objectively reasonable under 28 the Fourth Amendment is a “pure question of law.” Scott v. Harris, 550 U.S. 372, 381 n.8 1 (2007). But an officer is not entitled to summary judgment if the evidence, viewed in the 2 nonmovant’s favor, could support a finding of excessive force. Smith v. City of Hemet, 3 394 F.3d 689, 701 (9th Cir. 2005) (en banc). Because the excessive force balancing test is 4 “inherently fact specific, the determination whether the force used to effect an arrest was 5 reasonable under the Fourth Amendment should only be taken from the jury in rare cases.” 6 Green v. City and Cnty. of S.F., 751 F.3d 1039, 1049 (9th Cir. 2014) (internal quotation 7 marks omitted); see Smith, 394 F.3d at 701 (excessive force cases often turn on credibility 8 determinations, and the excessive force inquiry “nearly always requires a jury to sift 9 through disputed factual contentions, and to draw inferences therefrom”) (quotation 10 omitted). 11 B. Graham Analysis 12 1. Nature of the Force Inflicted 13 In the Graham analysis, the Court must first evaluate “the type and amount of force 14 inflicted.” Espinosa, 598 F.3d at 537 (quotation omitted). “[E]ven where some force is 15 justified, the amount actually used may be excessive.” Santos v. Gates, 287 F.3d 846, 853 16 (9th Cir. 2002). There are two uses of force at issue in this case. 17 The first use of the force is Bowman’s use of his police vehicle to seize Brown. To 18 constitute a seizure, there must be either physical force or submission to the assertion of 19 authority. Cal. v. Hodari D., 499 U.S. 21, 626 (1991). If a police car seeks to stop a fleeing 20 motorist and accidently crashes into the motorist, there is no Fourth Amendment violation. 21 Cnty. of Sacramento v. Lewis, 523 U.S. 833, 844 (1998). But if a police car intentionally 22 hits a motorist, a seizure has occurred. Brower v. Cnty. of Inyo, 489 U.S. 593, 596–97 23 (1989). Here, there is a dispute of fact as to whether Bowman intentionally hit Brown with 24 his car. See, e.g., Soto v. Gaudett, 862 F.3d 148, 161 (2d Cir. 2017) (in a case involving a 25 car chase and then a foot chase by the police, ending with the plaintiff on foot being hit by 26 a police car, agreeing with the district court that there was a dispute of fact “as to whether 27 or not [the officer driving the car] hit [the plaintiff] intentionally”); Toscano v. City of 28 Fresno, No. 1:13-cv-01987-SAB, 2015 WL 4508582, at *4 (E.D. Cal. July 24, 2015) (in a 1 case where a police officer in a car pursued an individual on a bicycle, and the police officer 2 ran over the individual, killing him, stating that there was a dispute of fact as to whether 3 the officer intentionally bumped the bicycle or whether the officer accidentally hit the 4 bicycle as it was falling over). In the summary judgment analysis, the Court must take 5 Brown’s facts as true and analyze the use of force exercised by Bowman when, according 6 to Brown, he sped up behind Brown and intentionally hit him with his patrol vehicle, which 7 constitutes a seizure under the Fourth Amendment. 8 Defendants assert that assuming Bowman hit Brown with his vehicle, it was merely 9 a bump that resulted in only a small cut on Brown’s forehead. (Doc. 31 at 7–8.) Taking 10 Brown’s facts as true, however, Bowman’s vehicle “crashed into him” and sent Brown 11 “flying through the air after crashing onto the hood and window,” and Brown flew 12 approximately 20 feet before landing on his head and face, after which he could barely 13 move. (Doc. 15, Brown Aff. ¶ 5.) Brown averred that his injuries included staples in the 14 head and a concussion. (Doc. 1 at 3.) Brown’s facts support that the contact with the 15 vehicle was more than a bump and that Bowman’s use of his vehicle to hit and seize Brown 16 constituted a significant use of force and must be justified by a strong governmental 17 interest. See Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020) (“[a] moving 18 vehicle can of course pose a threat of serious physical harm . . . if someone is at risk of 19 being struck by it”); United States v. Aceves-Rosales, 832 F.2d 1155, 1157 (9th Cir. 1987) 20 (“[i]t is indisputable that an automobile can inflict deadly force on a person and that it can 21 be used as a deadly weapon”). 22 The second use of force occurred when Brown was on the ground after being hit by 23 the vehicle, and Defendants allegedly beat him “maliciously,” and Alexander kicked, 24 stomped, and punched Brown. (Doc. 15, Brown Aff. ¶ 7; Doc. 1 at 3.) Punches and 25 physical blows are a significant use of force. See Nelsen v. City of Davis, 685 F.3d 867, 26 878 (9th Cir. 2012) (“physical blows or cuts often constitute a more substantial application 27 of force than categories of force that do not involve a physical impact to the body”); Aranda 28 v. City of McMinnville, 942 F. Supp. 2d 1096, 1105 (D. Or. 2013) (officer’s use of closed 1 fist and knee to deliver “multiple ‘focused blows’ to [an arrestee’s] head, shoulder, and 2 side” is a significant use of force). There is no dispute that after the incident, Brown was 3 taken to the hospital by ambulance, supporting an inference that his injuries were 4 objectively serious. Brown averred that in addition to staples in the head and a concussion, 5 he also suffered multiple facial contusions and required stitches and x-rays. (Doc. 1 at 3; 6 Doc. 15, Brown Aff. ¶ 9; Doc. 32, Ex. 1, Brown Dep. 21:13–14.) These facts support that 7 the force used by Defendants after Brown was on the ground was more than insignificant 8 and must be justified by a strong governmental interest. 9 2. Governmental Interests 10 a. Severity of Crime 11 The Court applies the Graham factors to evaluate the importance of the government 12 interest at stake during Brown’s arrest. The first factor examines the severity of the crime 13 at issue. Espinosa, 598 F.3d at 537. More serious crimes may require greater levels of 14 force to apprehend the subject. See Law v. City of Post Falls, 772 F. Supp. 2d 1283, 1297 15 (D. Idaho 2011). 16 As to the first use of force involving Bowman’s vehicle, Defendants were initially 17 attempting to arrest Brown for possession of methamphetamines. This is not a very severe 18 crime as evidenced by Defendants’ own facts showing that Brown was released after being 19 arrested for the same crime because other emergency calls took priority over keeping him 20 in custody. But as Defendants argue, upon initiating a traffic stop to re-arrest Brown, he 21 fled and resisted arrest, which constitutes a felony. (Doc. 31 at 6.) See Ariz. Rev. Stat. 22 § 13-2508(B) (actively resisting arrest is a felony); Williams v. Schismenos, 258 F. Supp. 23 3d 842, 858 (N.D. Ohio 2017) (under the Graham factors, “[r]esisting arrest is a serious 24 crime” that “place[s] everyone at the scene of the traffic stop at risk”). Thus, the crime at 25 issue necessitated some force to apprehend Brown. 26 The “severity of the crime” factor is not directly relevant to the second use of force 27 because at the time Defendants allegedly maliciously beat Lewis, he was already secured 28 in handcuffs and he was not resisting. 1 b. Threat Posed by Brown 2 The “most important Graham factor” is whether Brown “posed an immediate threat 3 to the safety of the officers or others.” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 4 2011). When considering whether there was an immediate threat, “a simple statement by 5 an officer that he fears for his safety or the safety of others is not enough; there must be 6 objective factors to justify such a concern.” Bryan v. MacPherson, 630 F.3d 805, 826 (9th 7 Cir. 2010) (citation and quotation omitted). 8 Before Bowman’s use of force with his vehicle, Brown fled from officers and led 9 them on a chase through traffic, endangering both the officers and drivers on the road. 10 Then Brown ran through an apartment complex where several tenants, including children, 11 were outside, creating a potential risk to their safety. Because Brown had previously told 12 Alexander that he could quickly obtain a gun, and Brown was seen leaving his apartment 13 with an ammo case, Defendants did not know whether Brown was armed at the time.3 In 14 addition, Brown was initially being arrested for possession of methamphetamines; thus, 15 Defendants did not know whether Brown was under the influence of drugs. Finally, 16 according to Brown’s facts, he ran from the apartment complex back onto Eighth Avenue, 17 again creating a potential danger in traffic. Based on these undisputed facts, Brown posed 18 a threat to officers and the public at the time Bowman used his vehicle to seize Brown. 19 The second use of force by Bowman and Alexander came after Brown was on the 20 ground and secured in handcuffs. Because Brown was restrained and secured, he did not 21 pose a threat to the safety of the officers or anyone else. 22 c. Resisting Arrest or Attempting to Flee 23 The Ninth Circuit has indicated that police are entitled to use force when arresting 24 a person who flees from police authority. Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994). 25 “[T]he level of force an individual’s resistance will support is dependent on the factual 26 circumstances underlying that resistance.” Bryan, 630 F.3d at 830. There is no dispute
27 3 In his deposition, Brown stated that he had some marijuana in the ammo case; 28 however, Defendants would not have known that the case did not contain ammunition. (Doc. 32, Ex. 1, Brown Dep. 19:25–20:1.) 1 that Brown failed to comply with orders, resisted arrest, ran from the police, and led them 2 on a chase through traffic and an apartment complex. Thus, this factor supports that 3 Bowman was justified in exercising force to seize Brown. 4 This factor is not directly relevant to the second use of force because, according to 5 Brown, the force used by Defendants came after he was handcuffed and secured. 6 d. Alternate Methods of Subduing Brown 7 With respect to Bowman’s use of his vehicle to seize Brown, another factor relevant 8 to the reasonableness inquiry is whether there were “alternative methods of capturing or 9 subduing a suspect” available to Bowman. Smith, 394 F.3d at 703; see Bryan, 630 F.3d at 10 831 (“we have held that police are ‘required to consider ‘[w]hat other tactics if any were 11 available’ to effect the arrest”) (quotation omitted). When considering this factor, the court 12 may not rely on hindsight, and instead must judge the officer’s conduct from the 13 “perspective of a reasonable officer on the scene.” Graham, 490 U.S. at 396. 14 Defendants do not directly address this factor; however, they argue that Bowman’s 15 use of force was reasonable because he was presented with a “tense, uncertain, and rapidly 16 evolving” situation where he was chasing a potentially armed “meth-user” through an 17 apartment complex with children present. (Doc. 31 at 8.) 18 Brown does not argue that other alternative methods were readily available to 19 subdue him when he continued to run from Defendants. (See Doc. 1.) Objectively, there 20 are no clear, reasonable, and less intrusive alternatives that would have been readily 21 available to Bowman in the circumstances. Cf. Bryan, 630 F.3d at 831 (finding that in the 22 circumstances, there were objectively clear, reasonable, and less intrusive alternatives for 23 the defendant to effect an arrest of the plaintiff without resorting to an intermediate level 24 of force). In hindsight, potential alternatives may be arrived at, but that is the type of 25 second guessing that is not permitted in the reasonableness calculation. Thus, this factor 26 supports that ready alternatives to arrest Brown were not available and Bowman’s use of 27 force was justified. 28 1 3. Necessity of Force 2 Finally, the Court must balance the force used against the need for such force to 3 determine whether the force used was “greater than reasonable under the circumstances.” 4 Espinosa, 598 F.3d at 537 (quoting Santos, 287 F.3d at 854). This determination is judged 5 from the perspective of a reasonable officer on the scene. Graham, 490 U.S. at 396–97. 6 As mentioned, an automobile can inflict deadly force on a person. Aceves-Rosales, 7 832 F.2d at 1157. “An officer’s use of deadly force is reasonable only if ‘the officer has 8 probable cause to believe that the suspect poses a significant threat of death or serious 9 physical injury to the officer or others.’” Scott v. Henrich, 39 F.3d 912, 914 (9th Cir.1994) 10 (emphasis omitted) (quoting Tennessee v. Garner, 471 U.S. 1, 3 (1985)). Brown’s flight 11 from police and the uncertainty as to whether he was armed or on drugs created a significant 12 threat of serious physical injury to the public. Although an automobile may constitute a 13 deadly weapon, when assessing the totality of the circumstances confronting Bowman, it 14 appears that his use of force to seize Brown was reasonable. To the extent that a reasonable 15 jury may find that the use of force was excessive, as discussed below, Bowman is entitled 16 to qualified immunity. 17 As to the second use of force, construing the facts in Brown’s favor, the force used 18 was greater than reasonable under the circumstances. Brown alleges that he was restrained 19 on the ground and handcuffed, in which case he posed no threat and there was no need for 20 force, yet Defendants continued to punch and kick him. See Headwaters Forest Def. v. 21 Cnty. of Humboldt, 240 F.3d 1185, 1199 (9th Cir. 2000) (where there is no need for force, 22 any force used is excessive), vacated and remanded on other grounds, Cnty. of Humboldt 23 v. Headwaters Forest Def., 534 U.S. 801 (2001). Accordingly, there exists a genuine issue 24 of material fact whether the force used by Defendants in these circumstances was 25 objectively reasonable under the Fourth Amendment. 26 V. Qualified Immunity 27 Defendants assert that they are entitled to qualified immunity. (Doc. 31 at 8–11.) 28 Government officials enjoy qualified immunity from civil damages unless their conduct 1 violates “clearly established statutory or constitutional rights of which a reasonable person 2 would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In deciding if 3 qualified immunity applies, the Court must determine: (1) whether the facts alleged show 4 the defendant’s conduct violated a constitutional right; and (2) whether that right was 5 clearly established at the time of the violation. Pearson v. Callahan, 555 U.S. 223, 230– 6 32, 235–36 (2009) (courts may address either prong first depending on the circumstances 7 in the particular case). In the qualified immunity analysis, the court must consider all 8 disputed facts in the light most favorable to the nonmovant. Isayeva v. Sacramento 9 Sheriff’s Dep’t, 872 F.3d 938, 946 (9th Cir. 2017). 10 A. Bowman’s Use of Force with Vehicle 11 For the purposes of this analysis, the Court will begin with the second prong— 12 whether the right at issue was clearly established such that Bowman would have known 13 that his conduct was unlawful. See Pearson, 555 U.S. at 230–32; Saucier v. Katz, 533 U.S. 14 194, 201 (2001). 15 For a right to be clearly established there does not have to be a case directly on 16 point; however, “existing precedent must have placed the statutory or constitutional 17 question beyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix v. 18 Luna, 577 U.S. 7, 12 (2017)). Clearly established law “must be particularized to the facts 19 of the case,” and “should not be defined at a high level of generality.” White, 137 S. Ct. at 20 552 (quotation and citation omitted). A right is clearly established when case law has been 21 “earlier developed in such a concrete and factually defined context to make it obvious to 22 all reasonable government actors, in the defendant’s place, that what he is doing violates 23 federal law.” Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017) (citing 24 White, 137 S. Ct. at 551). 25 Once the right at issue is defined, the court must then “identify a case where an 26 officer acting under similar circumstances as [the defendant] was held to have violated” 27 that right. Id. If there is no such case, then the right was not clearly established. See id. at 28 1117–18. “This is not to say that an official action is protected by qualified immunity 1 unless the very action in question has previously been held unlawful, but it is to say that in 2 the light of pre-existing law the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 3 730, 739 (2002) (internal citations omitted). “The Supreme Court has made clear that 4 ‘officials can still be on notice that their conduct violates established law even in novel 5 factual circumstances.’” Mattos, 661 F.3d at 442 (quoting Hope, 536 U.S. at 741). This 6 principle is particularly relevant “in the context of Fourth Amendment cases, where the 7 constitutional standard—reasonableness—is always a very fact-specific inquiry.” Id.; see 8 Drummond v. City of Anaheim, 343 F.3d 1052, 62 (9th Cir. 2003) (holding that “no federal 9 case directly on point [was needed] to establish” that the conduct at issue violated clearly 10 established law and constituted excessive force). 11 Defendants argue that there is no case law putting officers on notice that Bowman’s 12 actions would have been unreasonable in the circumstances. (Doc. 31 at 9–10.) They rely 13 on an Eleventh Circuit Court case holding that the Fourth Amendment is not clearly 14 violated when an officer hits a suspect with a vehicle while trying to apprehend the suspect. 15 In Haynes v. Richmond County Sheriff’s Office, the defendant officer responded to a 16 disturbance and heard people say that the plaintiff had a firearm. 749 F. App’x 935, 937 17 (11th Cir. 2018). The plaintiff fled in his car, and the defendant pursued him. Id. The 18 plaintiff then abandoned his car and fled on foot, and the defendant hit the plaintiff with 19 his patrol car. Id. The defendant claimed that he did not intentionally hit the plaintiff with 20 his patrol car; rather, he was trying to discourage the plaintiff’s flight by placing the patrol 21 car in his path. Id. at 939. The plaintiff alleged that the defendant intentionally hit him at 22 a speed of 60 miles per hour causing him to fly six feet into the air, after which he was 23 transported to the hospital for treatment of a concussion, lacerations, and abrasions. Id. at 24 937, 939. The appellate court found that a reasonable jury could find the defendant 25 intentionally hit the plaintiff with the patrol car. Id. at 939. But it also determined that 26 neither Graham v. Connor nor Tennessee v. Garner would have put a reasonable officer 27 on notice that the Fourth Amendment prohibited using a patrol car to stop the plaintiff’s 28 flight because, in the circumstances, the defendant could have concluded that the plaintiff 1 was armed and posed a threat of immediate harm. Id. at 939–40. 2 Defendants cite to other cases holding that it is objectively reasonable for officers 3 to use deadly force to stop a fleeing motorist if he poses a threat to others. (Doc. 31 at 10.) 4 See Plumhoff v. Rickard, 572 U.S. 765, 768–770, 776–77, 780–81 (2014) (where an officer 5 pulled a car over because it had only one operating headlight, and then a chase ensued for 6 over 5 minutes during which the driver’s “outrageously reckless driving posed a grave 7 public safety risk,” it was objectively reasonable for officers to use deadly force and fire 8 up to 15 shots at the car to get it to stop; alternatively, defendants would be entitled to 9 qualified immunity); Scott v. Harris, 550 U.S. 372, 386 (2007) (“a police officer’s attempt 10 to terminate a dangerous high-speed car chase that threatens the lives of innocent 11 bystanders does not violate the Fourth Amendment, even when it places the fleeing 12 motorist at risk of serious injury or death”). Defendants argue that if it is reasonable for 13 officers to use deadly force against a fleeing motorist, it should be reasonable to use such 14 force against a suspect who is fleeing on foot. (Doc. 31 at 10–11.) 15 As Defendants indicate, there are few cases involving the use of patrol car to stop 16 an arrestee fleeing on foot. But the Court found a case from the Northern California District 17 Court involving such a scenario. In Martin v. City of San Jose, the plaintiff and his cousin 18 verbally engaged with security guards outside a mall restaurant where the two had been 19 drinking, and the two then left the mall, crossed an expressway, and made their way to a 20 bike trail. No. 19-cv-01227-EMC, 2020 WL 5910078, at *2 (N.D. Cal. Oct. 6, 2020). The 21 defendant officer received a call from dispatch about an incident at the mall where two men 22 were “threatening to shoot security guards but no weapons had been seen,” and dispatch 23 reported that one of the men had brandished a knife. Id., at *3. The defendant saw the two 24 men enter the bike trail and he pursued them in his patrol car. Id., at *3–4. The plaintiff 25 and his cousin noticed the car behind them and began to jog, and the patrol car then hit the 26 plaintiff in the lower back knocking him to the ground on his stomach. Id., at *4. The 27 plaintiff was then run over in his pelvic area, and then the defendant backed his car up 28 again and ran over the plaintiff’s ankle. Id., at *4. In its excessive force analysis, the 1 district court found that a reasonable jury could find that the force used was not reasonable 2 because, although the plaintiff was attempting to evade arrest by flight, the crime at issue 3 was not dangerous, there had been no physical confrontation with a knife and no attempted 4 stabbing, and there was no imminent danger from the plaintiff to the defendant or the 5 public. Id., at *13. The district court denied qualified immunity to the defendant despite 6 the absence of any specific case where an officer’s intentional striking of a suspect with a 7 car was held to violate the Fourth Amendment, noting that “perhaps because such conduct 8 is so out of bounds there is no such prior case.” Id., at *14. The district court found that 9 in the specific circumstances, the facts presented an obvious constitutional violation; 10 namely, (1) potentially deadly force was used, (2) the plaintiff did not present an imminent 11 threat to the public or to the defendant, (3) the plaintiff never pulled out or revealed a knife 12 during the pursuit, and (4) a fence blocked the plaintiff from a nearby shopping center area, 13 and other officers were in the area. Id. The district court noted that it was clearly 14 established that the mere possession of a weapon is insufficient to justify the use of deadly 15 force; thus, the fact that the plaintiff may have had a knife did not justify the defendant’s 16 use of force. Id., at *15 (citing Estate of Lopez v. Gelhaus v., 871 F.3d 1002, 1013, 1018– 17 19 (9th Cir. 2017.) 18 The holding in Martin does not preclude finding qualified immunity warranted in 19 the instant case because Martin was decided two years after Brown’s arrest. More 20 importantly, the facts are not analogous. Although Bowman used potentially deadly force, 21 Brown presented an imminent threat to the public, Defendants reasonably suspected he 22 may be armed and/or on drugs, and Brown was fleeing through public streets and an 23 apartment complex where tenants were outside. Thus, there was no obvious constitutional 24 violation in this case. 25 In Tennessee v. Garner, the United States Supreme Court held that “[w]here the 26 officer has probable cause to believe that the suspect poses a threat of serious physical 27 harm, either to the officer or to others, it is not constitutionally unreasonable to prevent 28 escape by using deadly force.” 471 U.S. at 11. In light of this holding and the above 1 caselaw establishing that it is reasonable for officers to use deadly force to apprehend 2 fleeing motorists, a reasonable officer in Bowman’s position would not have known that 3 his conduct may have been unlawful. Accordingly, Bowman is entitled to qualified 4 immunity as to the use of force claim related to his use of a vehicle to seize Brown. 5 B. Defendants’ Use of Force After Brown was Handcuffed 6 The court has already determined that there is a question of fact whether Defendants 7 violated Brown’s Fourth Amendment rights when they used force against him after he was 8 on the ground and handcuffed. Qualified immunity therefore turns on the second prong 9 and whether the right at issue was clearly established. See Saucier, 533 U.S. at 201. 10 Defendants do not directly address qualified immunity as to this use of force 11 incident. (See Doc. 31.) They argue generally that after Brown was on the ground, he 12 punched, kicked, and clawed at Defendants to avoid being handcuffed, and that this 13 struggle lasted for approximately 30 seconds before Defendants were eventually able to 14 handcuff him. (Id. at 7; Doc. 32 ¶¶ 29–30.) But Brown disputes these facts, and the Court 15 must take his allegations are true. Brown states that after he was on the ground, he could 16 hardly move due to the impact from Bowman’s vehicle, and Defendants handcuffed him 17 immediately. (Doc. 15, Brown Aff. ¶ 6; Doc. 32, Ex. 1, Brown Dep. 20:25.) After he was 18 handcuffed, Defendants continued to punch and beat him, even though Brown was not 19 resisting. (Doc. 1 at 4; Doc. 15, Brown Aff. ¶¶ 7, 11.) 20 Multiple Ninth Circuit cases have addressed punching suspects who posed little to 21 no threat and were not resisting when force was used. In Blankenhorn v. City of Orange, 22 the court found that the officers were not entitled to qualified immunity because the state 23 of the law put the officers on notice that “punching [the plaintiff] to free his arms when, in 24 fact, he was not manipulating his arms in an attempt to avoid being handcuffed,” violated 25 the Fourth Amendment. 485 F.3d 463, 481 (9th Cir. 2007). In Drummond v. City of 26 Anaheim, the court found that the “officers’ use of severe force was constitutionally 27 excessive” in light of the fact that the force was used when the plaintiff was “handcuffed 28 and lying on the ground,” and the officers were not entitled to qualified immunity. 343 1 F.3d at 1059. 2 Finally, the Ninth Circuit has long held that “where there is no need for force, any 3 force used is constitutionally unreasonable.” See, e.g., Headwaters Forest Def., 240 F.3d 4 at 1199); see also Blankenhorn, 485 F.3d at 481 (citing Graham’s “clear principle” that 5 “force is only justified when there is a need for force”); Motley v. Parks, 432 F.3d 1072, 6 1088 (9th Cir. 2005) (“[t]he use of force against a person who is helpless or has been 7 subdued is constitutionally prohibited”), overruled on other grounds by United States v. 8 King, 687 F.3d 1189 (9th Cir. 2012); Fontana v. Haskin, 262 F.3d 871, 880 (9th Cir. 2001) 9 (“[g]ratuitous and completely unnecessary acts of violence by the police during a seizure 10 violate the Fourth Amendment”); P.B. v. Koch, 96 F.3d 1298, 1303–04 & n.4 (9th Cir. 11 1996) (“since there was no need for force, [the defendant’s] use of force was objectively 12 unreasonable”). 13 In light of this precedent, it is clear that Defendants were on notice that beating and 14 punching an arrestee who was already on the ground and handcuffed would violate the 15 Fourth Amendment. Consequently, Defendants are not entitled to qualified immunity as 16 to this use of force incident. 17 VI. Order to Show Cause 18 As mentioned, Brown failed to file a response to Defendants’ Motion for Summary 19 Judgment. Brown’s last filing in this matter was his Motion for Extension to File a 20 Response on November 20, 2020. (Doc. 35.) Thus, it is not clear whether Brown seeks to 21 proceed with this case. 22 Federal Rule of Civil Procedure 41(b) allows a court to dismiss an action for failure 23 to prosecute. See Fed. R. Civ. P. 41(b); Link v. Wabash Railroad Co., 370 U.S. 626, 629– 24 30 (1962) (a court’s authority to dismiss for lack of prosecution is necessary to prevent 25 undue delays in the disposition of pending cases and to avoid congestion in the calendars 26 of the district courts); Hells Canyon Pres. Council v. U .S. Forest Serv., 403 F.3d 683, 689 27 (9th Cir. 2005) (a court may dismiss under Rule 41(b) for failure to prosecute or comply 28 with rules of civil procedure or the court’s orders). 1 Before setting a settlement conference or a trial schedule, the Court will direct Brown to show cause why this action should not be dismissed for failure to prosecute. | Brown will be given 15 days to file a “Response” to this Order detailing whether he seeks 4| to proceed with his remaining Fourth Amendment claim and why this action should not be 5 | dismissed due to his failure to prosecute this action. If Brown fails to file a Response, the remaining claim in this action will be dismissed without further notice to Brown. 7| ITIS ORDERED: 8 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion for Summary Judgment (Doc. 31.) 10 (2) Defendants’ Motion for Summary Judgment (Doc. 31) is granted in part 11 | and denied in part as follows: 12 (a) the Motion is granted as to the Fourth Amendment excessive force 13 | claim against Defendant Bowman related to the use of his vehicle; and 14 (b) — the Motion is otherwise denied. 15 (3) The remaining claim is the Fourth Amendment excessive force claim against Defendants related to the use of force after Plaintiff was on the ground. 17 (4) | Within 15 days from the date of this Order, Plaintiff must file a Response to 18 | this Order and show cause why this action should not be dismissed for failure to prosecute. 19 Dated this 25th day of May, 2021. 20 21 A 7 5 22 3 _ James A. Teil Org Senior United States District Judge 24 25 26 27 28