NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MARCO AMARAL, No. 21-55420
Plaintiff-Appellant, D.C. No. 3:17-cv-02409-L-LL
v. MEMORANDUM* CITY OF SAN DIEGO; JEFFREY WILLIAMS, previously sued as FNU Williams, an individual,
Defendants-Appellees.
Appeal from the United States District Court for the Southern District of California M. James Lorenz, District Judge, Presiding
Argued and Submitted April 14, 2022 Pasadena, California
Before: PAEZ, SMITH,** and BADE, Circuit Judges. Dissent by Judge PAEZ
Plaintiff Marco Amaral appeals from the district court’s grant of summary
judgment in favor of the City of San Diego and Officer Jeffrey Williams
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable D. Brooks Smith, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. (Defendants) in this 42 U.S.C. § 1983 action based on Officer Williams’ use of a
maneuver to take Amaral to the ground during a protest in downtown San Diego,
California. Specifically, Amaral challenges the grant of summary judgment on his
Fourth Amendment excessive force and unlawful arrest claims.1 We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court properly concluded that Williams was entitled to qualified
immunity and granted Defendants’ motion for summary judgment on Amaral’s
Fourth Amendment excessive force claim. To determine whether a law
enforcement officer is entitled to qualified immunity, we consider “(1) whether
there has been a violation of a constitutional right; and (2) whether that right was
clearly established at the time of the officer’s alleged misconduct.” C.V. ex rel.
Villegas v. City of Anaheim, 823 F.3d 1252, 1255 (9th Cir. 2016) (internal
quotation marks and citations omitted). We have discretion to decide either prong
first, and we resolve this matter on the second prong. Pearson v. Callahan, 555
U.S. 223, 236 (2009).
Under the second prong, Defendants are entitled to summary judgment
because Williams’s conduct did not violate clearly established Fourth Amendment
1 The First Amended Complaint alleged several other claims that Amaral does not raise on appeal. Thus, we do not review those claims. Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003) (noting that this court “will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant's opening brief,” barring three applicable exceptions (citation omitted)).
2 law existing “at the time of the conduct.” Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018) (internal quotation marks and citation omitted). When viewing the facts
most favorably to Amaral, at the time of the conduct in question, November 9,
2016, it was not clearly established that the amount of force Williams used under
the circumstances would constitute excessive force. The district court correctly
granted Williams qualified immunity because “existing precedent” did not “place
the lawfulness of the particular [action] beyond debate.” City of Escondido v.
Emmons, 139 S. Ct. 500, 504 (2019) (alteration in original) (citation omitted).
2. The district court also properly granted Defendants’ motion for summary
judgment on Amaral’s unlawful arrest claim. “A claim for unlawful arrest is
cognizable under § 1983 as a violation of the Fourth Amendment, provided the
arrest was without probable cause or other justification.” Dubner v. City & Cnty.
of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). “Probable cause exists when,
under the totality of the circumstances known to the arresting officers (or within
the knowledge of other officers at the scene), a prudent person would believe the
suspect had committed a crime.” Id. at 966.
The district court properly concluded that Williams had probable cause to
arrest Amaral for failure to comply with a dispersal order in violation of California
Penal Code § 409. See Cal. Penal Code § 409 (“Every person remaining present at
the place of any riot, rout, or unlawful assembly, after the same has been lawfully
3 warned to disperse . . . is guilty of a misdemeanor.”). Around 8:20 p.m., an
unlawful assembly announcement and order to disperse was issued. Around 8:38
p.m., Williams saw Amaral in the vicinity of a “disturbance” where other police
officers were making arrests. From these facts, a “prudent person would believe
[that Amaral] had committed a crime.” Dubner, 266 F.3d at 966. The district
court did not err in granting summary judgment in favor of Defendants on
Amaral’s unlawful arrest claim, as no reasonable jury could conclude that
Williams lacked probable cause to arrest Amaral for violating California Penal
Code § 409. See Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994).
AFFIRMED.
4 FILED Marco Amaral v. City of San Diego, No. 21-55420 MAY 26 2022 MOLLY C. DWYER, CLERK Paez, J., Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent. I would reverse the grant of summary judgment to
Defendants because, in my view, there is a genuine issue of material fact on the
question of reasonableness, namely whether Marco Amaral (“Amaral”) formed a
fist with his right hand while standing behind Officer Eric Armstrong
(“Armstrong”). That inquiry should be decided by the trier of fact, either by a
special verdict or a general verdict with special interrogatories. Fed. R. Civ. P. 49;
Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1031 (9th Cir. 2003); see also
Morales v. Fry, 873 F.3d 817, 823–24 (9th Cir. 2017). Therefore, I would not
decide the issue of qualified immunity at this time.
If the evidence, viewed in the light most favorable to the non-movant, could
support a finding of excessive force, then Defendants should not be granted
summary judgment. Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005); see
also Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002) (acknowledging that an
excessive force inquiry “nearly always requires a jury to sift through disputed
factual contentions,” and thus summary judgment “should be granted sparingly”).
Here, the parties dispute a key issue: whether Amaral formed a fist with his right
hand such that Officer Jeffrey Williams’s (“Williams”) use of force was
reasonable. Fed. R. Civ. P. 56(a); Glenn v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MARCO AMARAL, No. 21-55420
Plaintiff-Appellant, D.C. No. 3:17-cv-02409-L-LL
v. MEMORANDUM* CITY OF SAN DIEGO; JEFFREY WILLIAMS, previously sued as FNU Williams, an individual,
Defendants-Appellees.
Appeal from the United States District Court for the Southern District of California M. James Lorenz, District Judge, Presiding
Argued and Submitted April 14, 2022 Pasadena, California
Before: PAEZ, SMITH,** and BADE, Circuit Judges. Dissent by Judge PAEZ
Plaintiff Marco Amaral appeals from the district court’s grant of summary
judgment in favor of the City of San Diego and Officer Jeffrey Williams
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable D. Brooks Smith, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. (Defendants) in this 42 U.S.C. § 1983 action based on Officer Williams’ use of a
maneuver to take Amaral to the ground during a protest in downtown San Diego,
California. Specifically, Amaral challenges the grant of summary judgment on his
Fourth Amendment excessive force and unlawful arrest claims.1 We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court properly concluded that Williams was entitled to qualified
immunity and granted Defendants’ motion for summary judgment on Amaral’s
Fourth Amendment excessive force claim. To determine whether a law
enforcement officer is entitled to qualified immunity, we consider “(1) whether
there has been a violation of a constitutional right; and (2) whether that right was
clearly established at the time of the officer’s alleged misconduct.” C.V. ex rel.
Villegas v. City of Anaheim, 823 F.3d 1252, 1255 (9th Cir. 2016) (internal
quotation marks and citations omitted). We have discretion to decide either prong
first, and we resolve this matter on the second prong. Pearson v. Callahan, 555
U.S. 223, 236 (2009).
Under the second prong, Defendants are entitled to summary judgment
because Williams’s conduct did not violate clearly established Fourth Amendment
1 The First Amended Complaint alleged several other claims that Amaral does not raise on appeal. Thus, we do not review those claims. Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003) (noting that this court “will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant's opening brief,” barring three applicable exceptions (citation omitted)).
2 law existing “at the time of the conduct.” Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018) (internal quotation marks and citation omitted). When viewing the facts
most favorably to Amaral, at the time of the conduct in question, November 9,
2016, it was not clearly established that the amount of force Williams used under
the circumstances would constitute excessive force. The district court correctly
granted Williams qualified immunity because “existing precedent” did not “place
the lawfulness of the particular [action] beyond debate.” City of Escondido v.
Emmons, 139 S. Ct. 500, 504 (2019) (alteration in original) (citation omitted).
2. The district court also properly granted Defendants’ motion for summary
judgment on Amaral’s unlawful arrest claim. “A claim for unlawful arrest is
cognizable under § 1983 as a violation of the Fourth Amendment, provided the
arrest was without probable cause or other justification.” Dubner v. City & Cnty.
of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). “Probable cause exists when,
under the totality of the circumstances known to the arresting officers (or within
the knowledge of other officers at the scene), a prudent person would believe the
suspect had committed a crime.” Id. at 966.
The district court properly concluded that Williams had probable cause to
arrest Amaral for failure to comply with a dispersal order in violation of California
Penal Code § 409. See Cal. Penal Code § 409 (“Every person remaining present at
the place of any riot, rout, or unlawful assembly, after the same has been lawfully
3 warned to disperse . . . is guilty of a misdemeanor.”). Around 8:20 p.m., an
unlawful assembly announcement and order to disperse was issued. Around 8:38
p.m., Williams saw Amaral in the vicinity of a “disturbance” where other police
officers were making arrests. From these facts, a “prudent person would believe
[that Amaral] had committed a crime.” Dubner, 266 F.3d at 966. The district
court did not err in granting summary judgment in favor of Defendants on
Amaral’s unlawful arrest claim, as no reasonable jury could conclude that
Williams lacked probable cause to arrest Amaral for violating California Penal
Code § 409. See Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994).
AFFIRMED.
4 FILED Marco Amaral v. City of San Diego, No. 21-55420 MAY 26 2022 MOLLY C. DWYER, CLERK Paez, J., Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent. I would reverse the grant of summary judgment to
Defendants because, in my view, there is a genuine issue of material fact on the
question of reasonableness, namely whether Marco Amaral (“Amaral”) formed a
fist with his right hand while standing behind Officer Eric Armstrong
(“Armstrong”). That inquiry should be decided by the trier of fact, either by a
special verdict or a general verdict with special interrogatories. Fed. R. Civ. P. 49;
Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1031 (9th Cir. 2003); see also
Morales v. Fry, 873 F.3d 817, 823–24 (9th Cir. 2017). Therefore, I would not
decide the issue of qualified immunity at this time.
If the evidence, viewed in the light most favorable to the non-movant, could
support a finding of excessive force, then Defendants should not be granted
summary judgment. Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005); see
also Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002) (acknowledging that an
excessive force inquiry “nearly always requires a jury to sift through disputed
factual contentions,” and thus summary judgment “should be granted sparingly”).
Here, the parties dispute a key issue: whether Amaral formed a fist with his right
hand such that Officer Jeffrey Williams’s (“Williams”) use of force was
reasonable. Fed. R. Civ. P. 56(a); Glenn v. Washington County, 673 F.3d 864, 870
1 (9th Cir. 2011) (citation omitted). Because the body-camera footage did not “quite
clearly contradict[]” Amaral’s account, we must credit his version of events, which
creates a dispute best left for a jury to resolve. Scott v. County of San Bernardino,
903 F.3d 943, 952 (9th Cir. 2018) (quoting Scott v. Harris, 550 U.S. 372, 378
(2007)).
Defendants argue that given the exigent circumstances of the incident,
Williams’s takedown was reasonable. Not so. We have held in cases involving
non-deadly force in exigent circumstances that the question of whether an officer’s
use of force was reasonable was a jury question. See, e.g., Glenn, 673 F.3d at 871–
78 (holding that genuine issues of material fact regarding whether an officer’s use
of a non-lethal beanbag projectile during the arrest of a mentally ill man was
reasonable precluded summary judgment); Blankenhorn v. City of Orange, 485
F.3d 463, 477–79 (9th Cir. 2007) (holding that genuine issues of material fact
regarding whether the officers’ gang-tackle of a man suspected of a trespass during
a potentially violent arrest was reasonable precluded summary judgment). While
Williams may have perceived Amaral as a threat to officer safety, given the
disputed facts surrounding Williams’s use of non-deadly force in a potentially
exigent circumstances, Williams’s fear alone is insufficient. See Deorle v.
Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001) (“[A] simple statement by an
officer that he fears for his safety or the safety of others is not enough; there must
2 be objective factors to justify such a concern.”).
Because I would find that a genuine question of material fact precludes
summary judgment on the question of reasonableness, I respectfully dissent.