Tatum v. City and County of San Francisco

441 F.3d 1090, 2006 WL 846263
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 3, 2006
Docket04-15055
StatusPublished
Cited by57 cases

This text of 441 F.3d 1090 (Tatum v. City and County of San Francisco) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tatum v. City and County of San Francisco, 441 F.3d 1090, 2006 WL 846263 (9th Cir. 2006).

Opinion

GOULD, Circuit Judge.

Verlie Tatum appeals from the district court’s order granting summary judgment to the defendants, and dismissing her claims brought under 42 U.S.C. § 1983. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

I 1

On the morning of March 2, 2001, San Francisco Police Officer Leslie Smith was waiting for a tow truck to remove a stolen car located in San Francisco’s Tenderloin neighborhood. Across the street, Smith saw Glenn Fullard begin to kick the side door of the Tenderloin police station. Smith yelled at Fullard to stop kicking the door, but Fullard did not stop. Officer Smith then approached Fullard and asked him what he was doing. Fullard did not respond and he continued to kick the door, so Smith pulled Fullard away from the door and again asked him what he was doing. Fullard did not reply, but he began to walk away from the police station after Officer Smith told Fullard to “get out of here.”

As Smith was walking back across the street, he heard Fullard kicking the police *1093 station’s door again. Based on Fullard’s odd behavior, as well as his bloodshot eyes, heavy perspiration, and slurred speech, Smith suspected that Fullard might be intoxicated or under the influence of a controlled substance. Smith pulled Ful-lard away from the door again and explained to him that he could be arrested if he did not -stop. Fullard still did not respond, so Smith asked to see Fullard’s identification. Fullard did not comply with Officer Smith’s request, at which point Smith told Fullard that he would be placed in handcuffs.

According to Officer Smith’s deposition testimony, he positioned Fullard’s left arm behind his back in a bar arm control hold and asked Fullard to place his right arm behind his back. Instead of complying, Fullard spun to his left, partially escaping Smith’s grasp. Officer Smith instructed Fullard to stop resisting, but Fullard continued turning to his left. Smith was able to maintain control over Fullard by positioning him against a nearby wall. Smith told Fullard to calm down. Fullard continued to struggle. Smith then used the bar arm control hold to force Fullard to the ground. Smith placed a radio call for assistance. Officers Chan, Busalacchi, Torres, and Yamaguchi responded at once. Against continued resistance from Fullard, the officers placed him in handcuffs.

Officer Smith then sent a radio message that he no longer needed assistance. He and Chan remained at the scene to monitor Fullard while the other officers left. According to Officer Smith’s testimony, Fullard lay on his stomach for about a minute after he was handcuffed. Officers Smith and Chan next positioned Fullard so that he lay on his side. About two minutes later, Smith sent a radio message requesting an ambulance after Smith noticed that Fullard’s breathing was heavy and that his eyes were bulging. As Smith monitored Fullard’s condition, Fullard’s breathing became shallow. Smith sent another radio message asking that his previous request for an ambulance be given priority. Smith and Chan monitored Fullard while they waited for the ambulance to arrive, but neither officer attempted to perform cardiopulmonary resuscitation (CPR) on Ful-lard. Smith did, however, place his right ear to Fullard’s mouth to verify that he was still breathing. Smith also checked Fullard’s pulse and observed his chest movements. When paramedics arrived about ten minutes later, they could not detect Fullard’s breathing or pulse and one paramedic observed that Fullard was on his back. They pronounced Fullard dead at the scene. The coroner concluded that Fullard died of cocaine toxicity.

In March 2002, Verlie Tatum, Fullard’s mother, commenced this civil rights action against the named defendants: Officers Smith, Chan, Busalacchi, Torres, and Yamaguchi, as well as their supervising officers, Garrity and Carr, and the City and County of San Francisco. Tatum brought suit in San Francisco Superior Court, seeking damages for her son’s wrongful death and other torts under California law. Tatum also sought to recover damages under 42 U.S.C. § 1983 as Ful-lard’s successor in interest, 2 alleging that *1094 he was wrongfully arrested and subjected to excessive force in violation of his rights under the Fourth and Fourteenth Amendments. On the basis of the federal question presented, one of the defendants removed this action to federal court. The district court granted summary judgment on all claims to all of the defendants in December 2003.

II

Before addressing the specifics of Tatum’s appeal, we note that to recover damages under 42 U.S.C. § 1983, Tatum must prove by a preponderance of the evidence that the defendants deprived Fullard of a constitutional right while acting under color of state law. See Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir.2001). 3

A

We first address Tatum’s false arrest claim. Tatum contends that Fullard’s arrest violated the Fourth and Fourteenth Amendments because Officer Smith did not have probable cause to believe that Fullard had committed a crime. Tatum urges that the motivation for Fullard’s arrest was his failure to produce identification upon Smith’s request and she argues that an arrest on this basis violates the Fourth Amendment under our decisions in Carey v. Nevada Gaming Control Bd., 279 F.3d 873, 880 (9th Cir.2002) (holding that a defendant’s arrest under two Nevada statutes requiring a person to identify himself to a police officer violated the Fourth Amendment), and Martinelli v. City of Beaumont, 820 F.2d 1491, 1494 (9th Cir.1987) (stating that a defendant’s arrest for refusing to identify herself during a Terry stop violated the Fourth Amendment).

Tatum’s arguments do not persuade us. A police officer has probable cause to arrest a suspect without a warrant if the available facts suggest a “fair probability” that the suspect has committed a crime. See United States v. Valencia-Amezcua, 278 F.3d 901, 906 (9th Cir.2002); United States v. Fixen, 780 F.2d 1434, 1436 (9th Cir.1986). An officer who observes criminal conduct may arrest the offender without a warrant, even if the pertinent offense carries only a minor penalty. See Atwater v. City of Lago Vista,

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Bluebook (online)
441 F.3d 1090, 2006 WL 846263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tatum-v-city-and-county-of-san-francisco-ca9-2006.