Derrick Sanderlin v. Jason Dwyer

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 4 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DERRICK SANDERLIN; et al., No. 23-15487

Plaintiffs-Appellees, D.C. No. 5:20-cv-04824-BLF

v. MEMORANDUM* JASON DWYER; et al.,

Defendants-Appellants,

and

CITY OF SAN JOSE; et al.,

Defendants,

v.

NAACP OF SAN JOSE/ SILICON VALLEY,

Third-party-plaintiff.

Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding

Argued and Submitted May 7, 2024 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: PAEZ, NGUYEN, and FRIEDLAND, Circuit Judges.

Plaintiff-Appellees Derrick Sanderlin, Breanna Contreras, Pietro di Donato,

Adira Sharkey, and Vera Clanton (Plaintiffs)1 are individuals who attended protests

that took place in San Jose following the death of George Floyd in 2020.

Defendant-Appellants Jason Dwyer, Lee Tassio, Jonathan Marshall, and Juan

Avila (Defendants) are police officers who were on the scene responding to those

protests. Plaintiffs allege that during the protests, Defendants violated their

constitutional rights under the First and Fourth Amendments. Defendants moved

for summary judgment, asserting qualified immunity. As relevant here, the district

court denied qualified immunity to Defendant Dwyer as to the claims brought by

Plaintiffs Sanderlin, Contreras, di Donato, and Sharkey (Group Plaintiffs),2 and it

denied qualified immunity to Defendants Tassio, Marshall, and Avila as to the

claims brought by Plaintiff Clanton. We have jurisdiction under 28 U.S.C. 1291,

1 Both parties incorrectly assume that the claims of Plaintiff Joseph Stukes are at issue in this appeal. Stukes brought 42 U.S.C. § 1983 claims only against Defendant Edgardo Garcia, to whom the district court granted summary judgment on all claims asserted against him on the ground that he could not be held liable as a supervisor. Stukes has not brought a cross-appeal of this holding by the district court. Accordingly, Stukes’s claims against Garcia are not the subject of this appeal. 2 In the district court’s order, the “Group Plaintiffs” also included Plaintiff Cayla Sanderlin. The Plaintiffs’ answering brief, however, does not defend any claim asserted by Cayla Sanderlin, including her First Amendment claim that survived summary judgment.

2 and we review de novo the district court’s denial of summary judgment. Hopson v.

Alexander, 71 F.4th 692, 697 (9th Cir. 2023). We reverse the district court’s denial

of qualified immunity to Dwyer, but we affirm as to the other Defendants.

1. Group Plaintiffs were each struck by a projectile fired by an unknown

officer (except for Sanderlin, who was struck by a projectile fired by Defendant

Michael Panighetti). 3 Group Plaintiffs assert First and Fourth Amendment claims

under 42 U.S.C. § 1983 against Defendant Dwyer, who served as the San Jose

Police Department’s (SJPD) Incident Commander in responding to the protests on

May 29, 2020—the day each of the Group Plaintiffs were struck. In this role,

Dwyer authorized two other SJPD officers, neither of whom are named as

defendants in this case, to use 37mm launchers as a crowd control technique after

the crowd failed to abide by dispersal orders. Group Plaintiffs argue that Dwyer

can be held liable as a supervisor for the alleged First and Fourth Amendment

violations they suffered because his authorization of the 37mm against the

protestors set in motion “the nature and extent of the SJPD showing of force,”

which ultimately resulted in them being struck by projectiles.

Group Plaintiffs’ claims against Dwyer as a supervisor fail as a matter of

law. Even assuming that Group Plaintiffs could demonstrate the requisite causal

3 We resolve the claims brought by Plaintiff Derrick Sanderlin against Defendant Panighetti in a concurrently filed opinion.

3 connection to hold Dwyer liable for the alleged constitutional violations they

suffered, see Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011), Dwyer would still

be entitled to qualified immunity because his actions did not violate clearly

established law.

Officers are entitled to qualified immunity “unless (1) they violated a federal

statutory or constitutional right, and (2) the unlawfulness of their conduct was

clearly established at the time.” Hopson, 71 F.4th at 697 (citation omitted). In

denying qualified immunity to Dwyer, the district court framed the question under

the second prong as “whether it was clearly established that an officer could not

shoot a projectile at an individual who was peacefully protesting,” and that

“[under] Group Plaintiffs’ version of events, the officers had notice that shooting

these Plaintiffs would be unconstitutional.” The district court erred by focusing the

“clearly established law” inquiry on the acts of the officers who struck Group

Plaintiffs, rather than on the acts of Dwyer himself.

Under Chavez v. United States, “a supervisor faces liability under the Fourth

Amendment only where ‘it would be clear to a reasonable [supervisor] that his

conduct was unlawful in the situation he confronted.’” 683 F.3d 1102, 1110 (9th

Cir. 2012) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001) (emphasis added)).

“[P]laintiffs cannot base a claim against supervisors on a theory of respondeat

superior, and must instead show that the supervisors, ‘through [their] own

4 individual actions, ha[ve] violated the Constitution.’” Id. at 1109 (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Thus, to determine whether Dwyer is

entitled to qualified immunity, we ask not whether the officers who fired

projectiles at Group Plaintiffs knew that their actions were unconstitutional, but

instead whether clearly established law prohibited Dwyer from authorizing the use

of crowd control devices consistent with policy when confronted with a crowd that

was not abiding by dispersal orders. Group Plaintiffs have failed to identify any

authority that would have put a reasonable officer in Dwyer’s position on notice

that such authorization would violate clearly established law. The district court

therefore erred in denying qualified immunity to Dwyer.

2. We affirm the district court’s denial of qualified immunity to

Defendants Tassio, Avila, and Marshall. Plaintiff Clanton asserts that she was

roughly manhandled and slammed to the ground while the officers arrested her.

Resolving factual disputes and drawing inferences in Clanton’s favor, as we must

at this stage, the Defendants violated Clanton’s clearly established rights. Case

law from this court clearly establishes that a police officer violates the Fourth

Amendment when he grabs an individual suspected of a nonviolent offense, who

objects and passively resists, throws the individual to the ground, and twists that

individual’s arms while handcuffing them. Meredith v. Erath, 342 F.3d 1057,

1061 (9th Cir. 2003). The district court therefore appropriately denied Defendants

5 Tassio, Marshall, and Avila qualified immunity.

AFFIRMED in part, REVERSED in part, and REMANDED.