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Ninth Circuit Revives Octogenarian’s Suit Over Detention
Reversing a Summary Judgment for Defense, Majority Says Jury Could Find It Unreasonable for Police to Force Unarmed, Non-Belligerent Woman ‘to Her Knees and Handcuff Her’; Judge Nelson Dissents
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, yesterday reinstated an action for excessive force brought by an African American female in her eighties against two police officers who detained her at gunpoint based on a suspicion that she was driving a stolen car.
Circuit Judges Bridget Shelton Bade and Marsha S. Berzon signed a memorandum opinion reversing an order by District Court Judge Mark C. Scarsi of the Central District of California granting summary judgment in favor of two police officers, Matthew Gregory and Madalyn Briley, employed by the City of Chino, in San Bernardino County. Their opinion affirms the judgment for the officers, however, on the claim by plaintiff Elise Brown for unlawful arrest.
Circuit Judge Ryan D. Nelson dissented as to the partial reversal, insisting that qualified immunity protected the officers because they did not breach clearly established law.
Computer Error
The detention of Brown was brought about by a computer foul-up. Brown owned two cars and reported one as stolen; on July 7, 2019, she was driving the other car when an automated license plate reader (“ALPR”) read the license plate and sent out an alarm of having spotted a stolen vehicle.
Officers pulled Brown over and ordered that she toss her keys out.
Brown’s operative pleading, her third amended complaint, sets forth:
“[W]ithout reasonable suspicion and/or probable cause that Plaintiff had committed any crime, Defendants unreasonably and unlawfully detained Plaintiff by requiring her to walk backwards with her arm fully extended in the air, get on her knees, and handcuff her, humiliating her before the public and causing her severe, ongoing physical, mental and emotional distress.”
The complaint adds:
“At no time was Plaintiff armed with any weapon, nor did Defendants have any reasonable or lawful basis to believe that Plaintiff was aimed with any weapon or a reasonable threat of death or bodily harm to anyone.”
Brown’s pleading avers:
“The unreasonable use of force by Defendants Officer MATTHEW GREGORY and Officer MADALYN BRILEY and DOES 3-10 deprived PLAINTIFF of her right to be secure in her person against unreasonable searches and seizures as guaranteed to PLAINTIFF under the Fourth Amendment of the United States Constitution and applied to state actors by the Fourteenth Amendment.”
(The complaint states her age at the time of the detention as 84, while the opinions say she was 83.)
Scarsi’s Ruling
Scarsi, in granting summary judgment on the excessive-force claim, said:
“Officers Gregory and Briley participated in the stop near a prison and followed all training procedures during the incident. Though Plaintiff argues that Officer Gregory acted with excessive force by standing over her ‘with his gun aimed downward at her while she was kneeling and being restrained in handcuffs’ and keeping his gun ‘unholstered’ while walking back to the police vehicles, the evidence does not support that he aimed his gun downward at Plaintiff….Instead, the evidence Plaintiff cites as support for this inference shows that Officer Gregory had his gun pointed at the ground and not her body.”
He went on to say:
“Though Plaintiff experienced an unfortunate encounter with police officers on July 7, 2019. the law was not clearly established at the time of the incident that Defendants’ actions were ‘unlawful in that situation.’…The Court thus grants qualified immunity on that basis and declines to analyze whether Plaintiff suffered any constitutional violations.”
Majority’s Opinion
Bade and Berzon noted that under the U.S. Supreme Court’s 1989 decision in Graham v. Connor, one factor in determining if a detention is “whether the suspect poses an immediate threat to the safety of the officers or others.” In light of that concern, they said, Gregory and Briley “initially acted reasonably by removing Brown from her car and ascertaining whether she was armed or posed a threat.”
But “after Brown complied immediately with all instructions” and it was clear she did not pose such a threat, a different situation existed, they concluded, declaring:
“[A] jury could find that it was not reasonable for Defendants to believe that Brown—an 83-year-old, 5’2”, 117-pound, unarmed, completely compliant woman—posed any immediate threat. Therefore, a jury could find that it was not reasonable for Defendants to force Brown to her knees and handcuff her.”
Nelson’s Opinion
Nelson said, in his partial dissent:
“To put this issue in context, the majority holds it is clearly established that police who encounter an unarmed grand theft auto suspect of small stature are forbidden from instructing the suspect to kneel for a few seconds and placing the suspect in handcuffs for a couple minutes while they verify automobile ownership and confirm nobody else is in the vehicle. We have never so held. And the majority’s holding today threatens to chill future police enforcement and investigation in these serious cases.”
He continued:
“To be sure, handcuffing a well-behaved, unarmed, 83-year-old woman who complied with police direction may violate standards of societal decorum. In hindsight, it seems unnecessary. And grandmas around the country may rightfully wag an experienced finger chastising the police action here. But that is not the standard for establishing a violation of the United States Constitution. More importantly, we have never held that, in these circumstances, instructing a grand theft auto suspect to kneel for a few seconds and handcuffing her for just three minutes while her ownership of the vehicle was verified and the vehicle was cleared constitutes excessive force under the Fourth [Amendment.”
2014 Precedent
The majority and the dissenter relied upon the Ninth Circuit’s 2014 decision in Green v. City & County of San Francisco. There an ALPR misread a license plate number and a driver, Denise Green, was forcibly detained. And sued.
District Court Judge William K. Sessions III of the District of Vermont, sitting by designation, wrote for the court in reversing a grant of summary judgment in favor of the defendants on a claim of excessive force, saying:
“While the crime at issue (stolen vehicle or plates) was arguably severe, there was no indication at the scene that Green posed an immediate threat to the safely of the officers or others…. Defendants seem to argue that the crime of vehicular theft is enough in itself to support a finding that Green posed an immediate threat; however, this is plainly an inference in Defendants’ favor. Construing the facts in the light most favorable to Green, a rational jury could find that the ALPR hit, without more, does not support a finding that Green posed a threat.”
Berzon and Bade quoted Sessions as saying that where the considerations pointed to in Graham “do not support a need for force, ‘any force used is constitutionally unreasonable,’ ” borrowing language from the Ninth Circuit 2003 decision in Lolli v. County of Orange.
Nelson wrote:
“It is true that in Green, we found suspicion of a stolen vehicle alone insufficient to make the force used in that case constitutional, but we did not find that any force would have been unjustified….[T]here are marked differences between the force used in Green and the force used here.”
Brown and Green
He noted that officers had guns trained on Green, she was handcuffed for as long as 10 minutes, and she was forced to go down on her knees despite a knee injury—factors not present in Brown’s case.
Berzon and Bade dueled with Nelson in footnotes over the applicability of Green. The majority opinion says:
“The dissent asserts that there are differences in the degree of force used in Green and the force used here. True, but beside the point. We rely on Green as clearly established law only with respect to whether the plaintiff posed an immediate threat solely by virtue of having been suspected of having stolen a car, not with regard to whether the force used was reasonable or whether the level of suspicion with regard to having stolen a car was higher or lower. The facts indicating that the plaintiff in Green did not present an immediate threat are materially the same as the facts at issue here.”
The dissent responds:
“It is not ‘beside the point’ that Green involved a higher degree of force than that used here. The majority claims that under Green, the crime of vehicular theft alone does not justify using any force. That is not what Green says. In Green, we merely held that vehicular theft alone did not justify the force used there, not that any force was unjustified.…It is very much to the point to explain why the differences in force between the two cases mean that Green does not clearly establish that the crime of vehicular theft alone foreclosed the lower degree of force used here.”
Unlawful Arrest
With respect to Brown’s false arrest claim, the panel members were in accord.
“[E]ven if Brown’s detention rose to the level of an arrest, and even if Defendants lacked probable cause to arrest her, Defendants are entitled to qualified immunity because they did not violate a clearly established right,” the opinion says, elaborating:
“Brown relies solely on Green to argue that Defendants’ conduct violated clearly established law. However, the analysis in Green is not applicable here because that case involved an unconfirmed, mistaken license plate match….Green thus did not provide adequate notice to the officers that Brown’s arrest, based on a confirmed license plate match, violated a clearly established constitutional right.”
The case is United States v. Brown, 21-56357.
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