Alejandro Velazquez v. City of Long Beach

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALEJANDRO VELAZQUEZ, No. 12-56933
Plaintiff-Appellant,
D.C. No.
v. 2:11-cv-00120-
R-JEM
CITY OF LONG BEACH; LONG BEACH
POLICE DEPARTMENT; KALID
ABUHADWAN, Officer, in his OPINION
individual and official capacity;
MARTIN RON, Officer, in his
individual and official capacity,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding

Argued and Submitted
December 9, 2014—Pasadena, California

Filed July 15, 2015

Before: Kim McLane Wardlaw and Marsha S. Berzon,
Circuit Judges and William E. Smith,* District Judge.

Opinion by Judge Berzon

*
The Honorable William E. Smith, Chief District Judge for the U.S.
District Court for the District of Rhode Island, sitting by designation.
2 VELAZQUEZ V. CITY OF LONG BEACH

SUMMARY**

Civil Rights

The panel reversed the district court’s judgment, entered
following a jury verdict, and remanded for a new trial in an
action brought pursuant to 42 U.S.C. § 1983, in which
plaintiff alleged that he was unlawfully arrested for resisting
a police officer, in violation of California Penal Code Section
148(a)(1), and that excessive force was used during his arrest.

Reversing the district court’s grant of judgment as a
matter of law on plaintiff’s unlawful arrest claim, the panel
held that there was sufficient evidence at trial on which a
reasonable jury could have concluded that no probable cause
for the arrest existed, based both on evidence that plaintiff did
not in fact resist the police officer and evidence that plaintiff
did not impede the police officer in the exercise of his lawful
duties.

Reversing the jury’s verdict on the excessive force claim,
the panel held that the district court’s grant of judgment as a
matter of law on the lawfulness of the arrest, in conjunction
with the district court’s instructions on the excessive force
claim, improperly influenced the jury’s consideration of the
excessive force claim.

The panel held that the district court’s categorical
exclusion of evidence relevant to establishing plaintiff’s
theory of municipal liability was an abuse of discretion and

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 VELAZQUEZ V. CITY OF LONG BEACH 3

that this incorrect evidentiary ruling resulted in the district
court erroneously entering judgment as a matter of law for the
defendants. The panel therefore reversed the district court’s
grant of judgment as a matter of law on the claims against the
City of Long Beach and Long Beach Police Department,
brought under Monell v. Department of Social Services, 436
U.S. 658 (1978).

Finally, the panel held that the district court erred by
dismissing plaintiff’s state law claims. On remand, the panel
instructed the Chief Judge for the Central District of
California to reassign this case to a different district judge.

COUNSEL

Mitchell Keiter, Beverly Hills, California, for Plaintiff-
Appellant.

Howard D. Russell (argued), Deputy City Attorney; Charles
Parkin, City Attorney, Long Beach, California, for
Defendants-Appellees.
4 VELAZQUEZ V. CITY OF LONG BEACH

OPINION

BERZON, Circuit Judge:

Alejandro Velazquez was arrested in front of his home in
Long Beach, California, for violating California Penal Code
§ 148, which prohibits resisting or obstructing a police
officer. In making the arrest, a Long Beach police officer
struck Velazquez with a police baton about eleven times,
injuring him. No charges relating to this incident were ever
brought against Velazquez.

Velazquez sued the city of Long Beach (“the City”) and
several police officers (collectively, the “Officers”) under
42 U.S.C. § 1983 and California law, contending that he was,
among other things, unlawfully arrested and subjected to
excessive force. The case went to trial. After the parties
finished putting on evidence, the district court granted the
City’s and the Officers’ Rule 50(a) motion for judgment as a
matter of law as to Velazquez’s § 1983 unlawful arrest and
municipal liability claims. The district court then dismissed
Velazquez’s state law claims without prejudice. Velazquez’s
excessive force claim went to the jury, which returned a
defense verdict.

We conclude that the district court incorrectly applied the
Rule 50(a) standard, erroneously excluded relevant Monell
evidence, and improperly dismissed the state law claims. The
district court’s grant of judgment as a matter of law on the
unlawful arrest claim so substantially affected the jury’s
verdict on the excessive force claim as to require its reversal.
Consequently, we reverse and remand for a new trial on all of
Velazquez’s claims.
 VELAZQUEZ V. CITY OF LONG BEACH 5

I. Background

A. The Incident

On the afternoon of October 24, 2009, Alejandro
Velazquez’s girlfriend took him to a restaurant for lunch to
celebrate his birthday. During lunch, Velazquez consumed
two or three mixed alcoholic drinks. Lunch over, Velazquez
returned to his home — he lived with his mother — to “hang
out” with some friends. Velazquez and his friends remained
at the home from late that afternoon through the early
morning, during which Velazquez drank some more —
several beers or mixed drinks.

At approximately 3:30 AM on October 25, 2009, Long
Beach Police Department Officers Kalid Abuhadwan and
Martin Ron received a call regarding a disturbance at
Velazquez’s home. The officers were informed that there
was a group of eight to ten individuals “drinking [and] being
loud [that] came from a party across the street, possibly,” and
that “the calling party just wanted them moved along and
checked out.” The officers were aware that an “advisal call”
regarding the same group had come over the radio some time
earlier that morning, meaning that group had been advised
regarding a disturbance but not cited for any crimes.

The officers drove to the scene to “[t]ell the group to go
inside.” From that point on, the parties’ accounts of the
events diverge considerably.

1. Abuhadwan’s version

When the officers arrived at the scene, they saw about
eight to ten Hispanic individuals, including Velazquez,
6 VELAZQUEZ V. CITY OF LONG BEACH

standing around a vehicle on a “dimly lit street.” Some in the
group were holding beer cans. According to Abuhadwan, the
officers had no intention of arresting anyone, as the problem
was “something [that] easily could be avoided by just going
inside and turn[ing] off the music.”

Abuhadwan saw Velazquez, who was not holding a drink,
leaning against a vehicle and “holding on to [it] with both of
his hands.” Abuhadwan testified that to him, Velazquez’s
position indicated that he “was possibly under the influence
to the extent he couldn’t hold his own balance.” At the same
time, Abuhadwan did not believe that Velazquez appeared
“unable to care for himself.” As the officers arrived in their
patrol car, Abuhadwan told the group to “go inside, pick up
your trash,” and move a car blocking the street. Members of
the group began to do as told.

In response to the officer’s instructions, Velazquez said
“yeah, sure” while shaking his head left to right. Abuhadwan
interpreted this statement “as being sarcastic and telling the
group we’re not leaving, like, yeah, sure, move on, cop.”
Abuhadwan “ma[d]e a decision to detain” Velazquez because
“he was the only subject that refused to comply with the
orders.” Abuhadwan left his vehicle and approached
Velazquez. From about four feet away, Abuhadwan smelled
alcohol on Velazquez’s breath and observed that his eyes
were watery.

Abuhadwan then commanded Velazquez to place his
hands behind his head so he could conduct a “cursory”
search, telling Velazquez that he was “being detained for
[being] drunk in public.” According to Abuhadwan,
Velazquez replied “fuck off, I’m good.” Abuhadwan
repeated his command, to which Velazquez replied, “I ain’t
 VELAZQUEZ V. CITY OF LONG BEACH 7

doing that. We don’t got to leave.” Abuhadwan then decided
to “apply a twist lock” to Velazquez.1 Velazquez did not
fight back. Abuhadwan testified that, at that point, Velazquez
was not under arrest, but was “being detained.”

After placing Velazquez in the twist lock, Abuhadwan
began to walk Velazquez to the patrol car. While walking
back to the vehicle, Abuhadwan felt Velazquez “sort of pull[]
away.” Abuhadwan executed an “arm bar takedown,”2 which
brought Velazquez to the ground. A “textbook” arm bar
takedown places the detainee in the “prone position,” with his
stomach to the ground, allowing the officer more control.
When Abuhadwan performed the takedown on Velazquez,
however, Velazquez “roll[ed] on his back and was facing”
Abuhadwan, with his fists clenched to his chest. Velazquez’s
legs were up in the air in a bicycle position, suggesting to
Abuhadwan that Velazquez was “ready to ground fight with
me.”3 Abuhadwan thereupon decided to arrest Velazquez

1
Abuhadwan described a “twist lock” as “grab[bing] the left arm [of the
subject] with your right hand, you C-clamp the back of the elbow to
prevent a subject from elbowing you in the face, and with your left hand
you grab the wrist in a C-lock motion . . . not to inflict pain, but to give .
. . the officer advantage and keep the subject off balance.”
2
Abuhadwan described an “arm bar takedown” as follows: “I maintain
control with my left hand and with my right hand I could either go over
the shoulder and push force downward; that causes the subject to go
towards the ground, or I use the edge of my hand and I apply force to the
elbow, which causes a pain arrow to the elbow to make the subject go
whatever direction you want.”
3
The police report Abuhadwan filed after the incident did not mention
that Velazquez had an aggressive bicycle stance, or that his legs were off
the ground.
8 VELAZQUEZ V. CITY OF LONG BEACH

“[f]or resisting, obstructing, [or] delaying a police officer,” in
violation of California Penal Code Section 148(a)(1).

Abuhadwan commanded Velazquez to roll over onto his
stomach and to place his hands to his sides. Velazquez did
not comply. Without warning, Abuhadwan struck him three
times on the shoulder with his baton, commanding Velazquez
again to roll over. With interspersed commands to roll over,
Abuhadwan proceeded to strike Velazquez eight more times,
hitting Velazquez’s shoulder, lower back and buttocks area,
left bicep, and hands (which were clenched to his chest).
When Velazquez did begin to roll over during the strikes,
Abuhadwan feared “he was going to get up onto his feet,” so
he continued the baton strikes,“swing[ing] at full force the
entire time.” While Velazquez was being struck with the
baton, he shouted “leave me the fuck alone.”

After eleven baton strikes, Velazquez rolled onto his
stomach and placed his hands to his side; Abuhadwan then
handcuffed him. Abuhadwan observed no injuries to
Velazquez. Once other police units arrived at the scene,
Abuhadwan lifted Velazquez from the ground, placed him
under arrest, and drove him to the police station to be booked.

2. Other witnesses’ version

Velazquez and other witnesses recalled a starkly different
series of events.

According to them, no one was drinking on the street at
the time the police arrived, and there were no beer bottles or
 VELAZQUEZ V. CITY OF LONG BEACH 9

cans present.4 Dennis Torres Magana, Velazquez’s nephew
who was at the scene, testified that, after the officers had
pulled up in their police car, he told Abuhadwan, “Don’t
worry. We’re leaving, Officer.” Velazquez, who had been
speaking to his mother, Elvira Hernandez, then asked Magana
and the officers, “what’s up?” Velazquez recalled a similar
interchange — according to him, he asked the officers,
“what’s going on?”

Abuhadwan appeared to be driving away when Velazquez
asked his question, but he “stopped the car, put it in reverse,
came back” and asked what Velazquez had said. Velazquez
replied, “I said, ‘what’s up.’” The officers then got out of the
car, and Abuhadwan started “speed walking towards”
Velazquez. Magana heard Abuhadwan say, “I’m tired of
people calling because of you, mother fuckers.”5 Abuhadwan
then, according to Magana, grabbed Velazquez and “threw
him to the ground.” Magana testified that Velazquez offered
“no resistance” when Abuhadwan grabbed him. Velazquez
similarly testified that Abuhadwan “walk[ed] up to [him],
“grab[bed] him,” and “threw [him] to the ground.”

According to Velazquez and Magana, Abuhadwan as he
approached did not tell Velazquez to put his hands behind his
head. Officer Ron, who was approximately four to ten feet
away, also testified that he did not hear Abuhadwan issue any
such order. Several witnesses at trial, including Ron, testified
that they did not recall Velazquez telling Abuhadwan to “fuck

4
No photographs were taken, nor was any evidence collected, at the
scene of the incident.
5
Abuhadwan disputed that he made such a statement.
10 VELAZQUEZ V. CITY OF LONG BEACH

off”; indeed, Ron testified that he did not hear Velazquez
utter any profanities during the “entire altercation.”

After being taken down to the ground, Velazquez did not
hear Abuhadwan tell him to roll over or issue any other
commands. Magana testified that Abuhadwan did not give
Velazquez an opportunity to roll over onto his stomach before
striking him with the baton. Several witnesses stated that
while being struck on the ground, Velazquez told Abuhadwan
several times, “I’m not about violence”; Abuhadwan disputed
that Velazquez said that. Witnesses also testified that after
Velazquez rolled over, Abuhadwan continued to strike him.
According to Velazquez’s mother, Velazquez was bleeding
from the side of his face as he was taken to the patrol car.

3. Subsequent events

At the police station, Velazquez agreed to a breathalyzer
test. The breath sample came back with a blood alcohol
content (BAC) level of 0.15.6

While at the station, Abuhadwan and Ron noticed that
Velazquez had been injured. A nurse at the station advised
that Velazquez should be taken to a hospital for treatment.
Abuhadwan, Ron, and their supervisor, Sergeant Mauk, then
transported Velazquez to the hospital. There was evidence

6
California’s public intoxication statute provides: “[E]very person . . .
[w]ho is found in any public place under the influence of intoxicating
liquor . . . in a condition that he or she is unable to exercise care for his or
her own safety or the safety of others [is guilty of a misdemeanor].” Cal.
Penal Code § 647(f). Although Abuhadwan testified that, as a matter of
Long Beach police policy, a person must have a BAC level of at least 0.15
or 0.16 to be charged with public intoxication, the Penal Code specifies no
BAC level for the public intoxication offense.
 VELAZQUEZ V. CITY OF LONG BEACH 11

that Velazquez was indeed injured. He needed surgery for
injuries to his finger and sutures on his ear. In addition,
Velazquez experienced significant bruising on his arms,
chest, and shoulder areas, as well as, he testified, “intense”
pain throughout his body.

Velazquez was discharged from police custody after he
left the hospital. He was never charged for any offense in
connection with the incident.

B. The Lawsuit

Velazquez sued Abuhadwan and Ron under 42 U.S.C.
§ 1983, alleging that the Officers unlawfully arrested him and
used excessive force against him in violation of the Fourth
Amendment. Velazquez also sued the City and Long Beach
Police Department under Monell v. Department of Social
Services, 436 U.S. 658 (1978), alleging, among other things,
that the City “maintained a policy, pattern, practice and
custom of permitting, encouraging, and ratifying the use of
unnecessary and unreasonable force” by police officers, and
that the City “fail[ed] and refus[ed] to investigate or
discipline police officers known to have repeatedly violated
the constitutional rights of suspects.” In addition to the
federal civil rights claims, Velazquez brought state law
claims of negligence, intentional infliction of emotional
distress, assault and battery, and false arrest.

Before trial, each side filed several motions in limine. As
relevant here, the defendants filed a motion to preclude any
reference to complaints, internal affairs history, and discipline
concerning the Officers. The district court reserved
consideration of all the motions in limine until trial. On the
first day of trial, the district court granted the motion to
12 VELAZQUEZ V. CITY OF LONG BEACH

preclude reference to officer complaints, discipline, and
internal affairs history.

After the close of evidence, the City and Officers filed a
Rule 50(a) motion for judgment as a matter of law on
Velazquez’s federal claims. The City argued that there was
insufficient evidence to find for Velazquez on his Monell
claims. As to Velazquez’s “Fourth Amendment [unlawful
arrest] claim,”7 the Officers contended that “the evidence is
that Mr. Velazquez refused to comply with the officers’
commands; that Mr. Velazquez, in response to the officers’
commands not only failed to comply, but he resisted by
pulling away from the officer.” These actions, the Officers
contended, created probable cause that Velazquez had
committed a misdemeanor, in violation of California Penal
Code Section 148(a)(1),8 in the presence of the officers. In
addition, the Officers claimed that Abuhadwan had
“reasonable suspicion to detain Mr. Velazquez to investigate
the possible crime of public intoxication,” that is, a violation
of California Penal Code Section 647(f). Thus, the Officers
maintained, “a reasonable juror would not be able to find by
a preponderance for the plaintiff on [the unlawful arrest]
claim.”

The district court granted the Rule 50(a) motion as to the
§ 1983 Monell and unlawful arrest claims. The district court

7
Although the Complaint alleges the § 1983 excessive force and
unlawful arrest claims in a single count, both parties analyzed the claims
separately. So do we.
8
Section 148(a)(1) provides that, “Every person who willfully resists,
delays, or obstructs any . . . peace officer . . . in the discharge or attempt
to discharge any duty of his or her office or employment, . . . shall be
[guilty of a misdemeanor].” Cal. Penal Code § 148(a)(1).
 VELAZQUEZ V. CITY OF LONG BEACH 13

did not explain the rationale for its grant of judgment as a
matter of law as to the Monell claims. As to the unlawful
arrest claim, the district court found “that there’s evidence
that [Velazquez] refused to do what the officer asked him to
do.” When Velazquez’s counsel noted that there had been
testimony from several witnesses that no commands were
given, the court responded that “[t]here’s no evidence of that
at all.” “The fact that witnesses testified that they didn’t hear
[Abuhadwan] give any instructions to Mr. Velazquez,” the
district court further stated, “doesn’t mean that it wasn’t done
[—] [t]hat doesn’t defeat the evidence that was given in the
[matter].” The district court also commented on the
credibility of Velazquez’s testimony: “[Velazquez’s]
testimony was not all that great either, because it was I don’t
remember, I don’t remember. . . . [Velazquez] is not too good
at remembering things.”

The district court then dismissed Velazquez’s state law
claims without prejudice, finding there to be a “problem of
instructing differently for State claims of excessive force and
1983 excessive force.” The district court reserved the § 1983
excessive force claim and submitted it to the jury, which
returned a defense verdict. Velazquez appeals the final
judgment.9

II. Analysis

We review the district court’s grant of a motion for
judgment as a matter of law de novo. See Krechman v. Cnty.
of Riverside, 723 F.3d 1104, 1109 (9th Cir. 2013). A district

9
The issue of qualified immunity did not factor into the district court’s
decision, and the Officers do not contend on appeal that they are entitled
to qualified immunity as to any of Velazquez’s claims.
14 VELAZQUEZ V. CITY OF LONG BEACH

court’s evidentiary rulings are reviewed for abuse of
discretion and the district court will be reversed on the basis
of an erroneous evidentiary ruling only if any error was
prejudicial. See C.B. v. City of Sonora, 769 F.3d 1005, 1021
(9th Cir. 2014) (en banc). Likewise, we “review the district
court’s refusal to exercise supplemental jurisdiction for an
abuse of discretion.” San Pedro Hotel Co. v. City of L.A.,
159 F.3d 470, 478 (9th Cir. 1998).

A. § 1983 Unlawful Arrest Claim

The district court ruled that a reasonable jury could not
have found that Abuhadwan lacked probable cause to arrest
Velazquez for resisting a police officer, in violation of
California Penal Code Section 148(a)(1). Applying the
proper legal standard, however, there was certainly sufficient
evidence at trial on which a reasonable jury could have
concluded that no probable cause existed, based both on
evidence that Velazquez did not in fact resist Abuhadwan and
evidence that Velazquez did not impede Abuhadwan in the
exercise of his lawful duties, a requirement under the
California misdemeanor prohibiting resisting a police officer.
In concluding otherwise, the district court “improperly
weighed evidence favorable to [Velazquez] against other
evidence presented at trial and failed to draw all reasonable
inferences in [Velazquez’s] favor.” Krechman, 723 F.3d at
1110. We therefore reverse the grant of judgment as a matter
of law on Velazquez’s unlawful arrest claim.

1. Legal Principles

(i) A motion for judgment as a matter of law may be
granted if “the court finds that a reasonable jury would not
have a legally sufficient evidentiary basis to find for the party
 VELAZQUEZ V. CITY OF LONG BEACH 15

on that issue,” Fed. R. Civ. P. 50(a), — that is, “if, under the
governing law, there can be but one reasonable conclusion as
to the verdict,” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). Conversely, “[i]f reasonable minds could
differ as to the import of the evidence, . . . a verdict should
not be directed.” Id. at 250–51. When deciding whether to
grant a Rule 50(a) motion, “[t]he court must draw all
reasonable inferences in favor of the nonmoving party, and it
may not make credibility determinations or weigh the
evidence.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000); see also Krechman, 723 F.3d at
1110.

“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.” Lacey v.
Maricopa Cnty., 693 F.3d 896, 918 (9th Cir. 2012) (quoting
Dubner v. City & Cnty. of S.F., 266 F.3d 959, 964 (9th Cir.
2001)). “Probable cause exists when there is a fair
probability or substantial chance of criminal activity.” United
States v. Patayan Soriano, 361 F.3d 494, 505 (9th Cir. 2004).
“[T]he determination of probable cause is based upon the
totality of the circumstances known to the officers at the
time” of the arrest. Id.

(ii) In analyzing whether a reasonable jury could have
found a lack of probable cause to arrest, we look to the
asserted crime for which the arrest took place. The elements
of the asserted crime at issue here, a Section 148(a)(1)
violation, are: “(1) the defendant willfully resisted, delayed,
or obstructed a peace officer, (2) when the officer was
engaged in the performance of his or her duties, and (3) the
defendant knew or reasonably should have known that the
other person was a peace officer engaged in the performance
16 VELAZQUEZ V. CITY OF LONG BEACH

of his or her duties.” Garcia v. Superior Court, 177 Cal.
App. 4th 803, 818 (2009) (internal quotation marks omitted).
Notably, “[f]or a § 148(a)(1) conviction to be valid, a
criminal defendant must have ‘resist[ed], delay[ed], or
obstruct[ed]’ a police officer in the lawful exercise of his
duties.” Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir.
2005) (en banc) (alterations in original). “The longstanding
rule in California . . . is that a defendant cannot be convicted
of an offense against a peace officer ‘engaged in . . . the
performance of . . . [his or her] duties’ unless the officer was
acting lawfully at the time the offense against the officer was
committed.” In re Manuel G., 16 Cal. 4th 805, 815 (1997)
(alteration in original) (quoting People v. Gonzalez, 51 Cal.3d
1179, 1217 (1990)). Consequently, “Section 148(a) does not
make it a crime . . . to resist unlawful orders.” Maxwell v.
Cnty. of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2013).
And, for the purposes of Section 148(a), “an officer is not
lawfully performing her duties when she detains an individual
without reasonable suspicion or arrests an individual without
probable cause.” Garcia, 177 Cal. App. 4th at 819 (emphasis
omitted).

In Johnson v. Bay Area Rapid Transit District, 724 F.3d
1159 (9th Cir. 2013), for instance, a defendant police officer
argued that the district court incorrectly denied him qualified
immunity for arresting plaintiff Greer. More specifically, he
“contend[ed] he had probable cause to arrest Greer for
impeding him in the performance of his duties — a violation
of California Penal Code § 148 — because by returning to the
train, Greer evaded [the officer’s] attempt to detain and
question the entire group of young men.” 724 F.3d at 1178.
The district court had found that because the officer “lacked
both ‘probable cause to believe that plaintiffs had committed
any underlying criminal violation,’ and ‘reasonable suspicion
 VELAZQUEZ V. CITY OF LONG BEACH 17

to detain plaintiffs for investigatory purposes,’” the officer
“also lacked probable cause to arrest Greer for violating
section 148.” Id. We affirmed, observing that “[a] suspect
cannot be arrested for violating section 148 because he
evaded an officer’s attempt to arrest him unlawfully.” Id.
Where police officers “ha[ve] no lawful basis for stopping”
an individual, we held, they “ha[ve] no lawful basis to pursue
and arrest [that individual] for not acceding to the
investigatory stop.” Id.

(iii) Additionally, “Ninth Circuit law . . . clearly
establishes the right verbally to challenge the police,” and
“verbal protests [cannot] support an arrest under § 148.”
Mackinney v. Nielsen, 69 F.3d 1002, 1007 (9th Cir. 1995);
see also Johnson, 724 F.3d at 1174; Duran v. City of
Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990). Likewise,
“California law . . . gives citizens considerable latitude in
confronting the police.” Mackinney, 69 F.3d at 1007 (citing
People v. Wetzel, 11 Cal. 3d 104, 107–09 (1974)).
Furthermore, Section 148 does not “criminalize[] a person’s
failure to respond with alacrity to police orders.” People v.
Quiroga, 16 Cal. App. 4th 961, 966 (1993); see also
Mackinney, 69 F.3d at 1008 (holding that plaintiff’s “refus[al]
to comply for a matter of seconds” with police officers’
“order[] to stop writing on the sidewalk” was not a violation
of Section 148).

Duran v. City of Douglas is particularly illuminating in
this regard. In Duran, defendant Officer Aguilar was
“dispatched to a downtown hotel in response to a bartender’s
complaints about an unruly patron,” plaintiff Duran.
904 F.2d at 1374. Duran, who was intoxicated and
threatening the bartender, “exchanged a few heated words”
with Aguilar and then left the bar in a car driven by his wife.
18 VELAZQUEZ V. CITY OF LONG BEACH

Id. “Soon thereafter, while out on patrol, Aguilar observed a
car with a passenger [Duran] who was directing an obscene
gesture toward him through an open window.” Id. Aguilar
followed the car and initiated a traffic stop; when Aguilar
then ordered Duran to step away from the car, Duran replied
“I don’t have to.” Id. In response to Aguilar’s explanation
that he had stopped Duran “to find out why [he] had yelled
profanities and made an obscene gesture,” Duran uttered
“further profanities.” Id. at 1375. Aguilar then decided to
arrest Duran for disorderly conduct. Duran brought a § 1983
action for damages resulting from the alleged unlawful stop
and arrest against Aguilar.

The district court granted him partial summary judgment,
and we affirmed. Noting that “police [may] not interfere with
the freedom of private persons unless it be for specific,
legitimate reasons,” Duran found any such reasons to be
“[m]issing from the record.” Id. at 1376–77. That Duran
“was making obscene gestures toward [Aguilar] and yelling
profanities,” we explained, “was not illegal,” as “criticism of
the police is not a crime.” Id. at 1377 (citing Houston v. Hill,
482 U.S. 451, 461–63 (1987)). Nor, we held, did Duran’s
verbal conduct “constitute[] disorderly conduct or a
disturbing of the peace”; Duran was traveling “late at night on
a deserted road,” and there was no evidence “that he had
committed or was about to commit any other illegal act.” Id.
We thus held that “the stop and detention was illegal.” Id.

Furthermore, we observed that the “possible motive” for
Duran’s detention was “retaliation for the insult [Aguilar]
received from Duran.” Id. at 1377–78. But this motive is
“one upon which law enforcement officers may not
legitimately rely,” as it “would constitute a serious First
Amendment violation.” Id. “While police . . . may resent
 VELAZQUEZ V. CITY OF LONG BEACH 19

having obscene words and gestures directed at them,” we
explained, “they may not exercise the awesome power at their
disposal to punish individuals for conduct that is not merely
lawful, but protected by the First Amendment.” Id. at 1378.
Indeed, an “expression of disapproval toward a police officer
. . . f[alls] squarely within the protective umbrella of the First
Amendment and any action to punish or deter such speech —
such as stopping or hassling the speaker — is categorically
prohibited by the Constitution.” Id.

The district court’s Rule 50 ruling cannot be squared
with these governing principles, either procedurally or
substantively.

2. The District Court’s Procedurally Improper Rule 50
Analysis

The district court noted, first, that “there’s evidence that
the plaintiff refused to do what the officer asked him to do,”
further explaining that Velazquez was “impeding the actions
of the officers in trying to disperse [the] crowd, and that’s it.”
There was indeed testimony as to the first point —
principally, that of Abuhadwan himself. Whether there was
actually evidence on the second point, impeding the officers
in their attempt to disperse the crowd, is debatable. But
whether there was or was not doesn’t matter. Velazquez
indisputably presented significant evidence at trial tending to
show that he did not in fact disobey or impede Abuhadwan in
the ways Abuhadwan maintained and the district court found.

Abuhadwan testified that Velazquez responded to his
order to disperse by sarcastically stating, “yeah sure.” But
other witnesses disputed that Velazquez ever made such a
statement. Instead, they testified that Velazquez was
20 VELAZQUEZ V. CITY OF LONG BEACH

speaking with his mother when the police arrived, and then
approached the officers to simply inquire about what was
happening — saying “what’s up” or “what’s going on.” And,
although the district court was particularly concerned by
Velazquez’s alleged statement to Abuhadwan to “fuck off,”
and indeed asked counsel whether that statement was
“something that creates probable cause,” the second officer
on the scene, Ron, testified that he was four to ten feet away
from Abuhadwan but heard no profanity. Other witnesses
similarly testified that they never heard Velazquez utter a
single profanity. Rather, they recalled Abuhadwan stating,
“I’m tired of people calling because of you, mother fuckers.”

Yet, when plaintiff’s counsel argued that Abuhadwan was
the only witness who testified that Velazquez said “fuck
you,” the district judge replied that there was “[n]o evidence
to the contrary.” That was not so. Velazquez had specifically
denied that he made such a statement. When reminded of that
detail, the district court pronounced Velazquez generally not
credible: “His testimony was not all that great either, because
it was I don’t remember, I don’t remember.” And the district
judge further commented, when discussing Velazquez’s
witnesses, that although “they say they didn’t hear [the
profanities] . . . we don’t know that they didn’t hear it,”
remarking that “it appears that the witnesses were prepared to
answer those questions.” Contrary to the district court’s
conclusion, a jury could reasonably infer from the testimony
of several nearby witnesses — including a police officer —
that they did not hear Velazquez say “fuck off” or use any
other profanity, and that no such words were uttered.

Other aspects of Velazquez’s alleged resistance were also
highly contested. Several witnesses, including Ron, the
second officer, testified that they never heard Abuhadwan ask
 VELAZQUEZ V. CITY OF LONG BEACH 21

Velazquez to put his hands behind his head before using the
arm twist lock. The district court found — once more — that
the fact that “Officer Ron didn’t hear it[] doesn’t mean
anything,” and further noted that “[t]he fact that witnesses
testified that they didn’t hear [Abuhadwan] give any
instructions to Mr. Velazquez, doesn’t mean that it wasn’t
done . . . [it] doesn’t defeat the evidence that was given in the
[matter].” Moreover, when plaintiff’s counsel stated during
the Rule 50(a) colloquy that the witnesses were “in a position
that if a command was given, they would have heard it,” the
district court concluded that “[t]here’s no evidence of that at
all.” But, again, a reasonable jury could view the testimony
as demonstrating that the witnesses would have heard the
order had it been audibly given, thus confirming Velazquez’s
and Magana’s statements that no such audible order was
given.

Witnesses also testified that Abuhadwan did not give
Velazquez the opportunity to comply with his command to
roll over on his stomach as he was striking him. Furthermore,
numerous witnesses, including Velazquez himself, recalled
that Velazquez had shouted that he was “not about violence”
several times during the altercation. And Abuhadwan
acknowledged that Velazquez never threatened him or
physically assaulted him, although he feared that he might
physically assault him from the fact that his feet were in the
air. A reasonable jury could have inferred from this evidence
that Abuhadwan had no plausible reason to believe that
Velazquez was a physical threat to him, and that Abuhadwan
never gave Velazquez an opportunity peacefully to comply
once on the ground.

It is evident that, in granting the defendants’ motion for
judgment as a matter of law on Velazquez’s unlawful arrest
22 VELAZQUEZ V. CITY OF LONG BEACH

claim, the district court did not apply the correct legal
standard for granting a judgment as a matter of law after the
close of evidence in a civil trial. Instead, the district court
disregarded evidence supporting Velazquez’s version of
events; improperly chose to credit the defense’s witnesses
over Velazquez’s; made adverse credibility findings about
Velazquez and his supporting witness; and refused to draw all
reasonable inferences in Velazquez’s favor. To be sure, the
jury could reasonably have believed Abuhadwan’s account of
the events. But the evidence was far from “one-sided,” and
surely did not give rise to “but one reasonable conclusion as
to the verdict.” Anderson, 477 U.S. at 250, 252. The district
court’s grant of judgment as a matter of law was therefore
procedurally improper, and cannot stand unless, despite the
district court’s erroneous analysis, the facts as construed most
favorably to Velazquez could only lead a rational jury to the
conclusion that Abuhadwan had probable cause to arrest him.

3. Proper Substantive Application of Rule 50

Applying the correct Rule 50 analysis, there is no doubt
that the unlawful arrest claim should have gone to the jury, as
a reasonable jury could have decided in Velazquez’s favor.
Drawing all reasonable inferences in Velazquez’s favor,
Velazquez’s conduct in this case appears “not only lawful,
but . . . protected by the First Amendment.” Johnson,
724 F.3d at 1174.

According to Velazquez’s and the other witnesses’
accounts of the incident, the only asserted “resistance”
Velazquez posed to Abuhadwan before Abuhadwan decided
to detain him was his questioning — “what’s up” or “what’s
going on” — aimed at learning why the police officers
arrived in front of his home. Such benign questioning cannot
 VELAZQUEZ V. CITY OF LONG BEACH 23

give rise to probable cause that Velazquez “willfully
resist[ed], delay[ed], or obstruct[ed]” a police officer, Cal.
Penal Code § 148(a)(1), within the meaning of the statute.
The constitutional guarantee of free speech precludes
criminalizing even strong expressions of frustration or
dislike, whether directed at a law enforcement officer or
someone else. See United States v. Poocha, 259 F.3d 1077,
1082 (9th Cir. 2001); Duran, 904 F.2d at 1378.

Rather, on Velazquez’s version of events, a reasonable
jury could infer that the likely “motive” for Abuhadwan’s
detention and subsequent arrest of Velazquez was
“retaliation” for a perceived challenge to the officer.10

10
Although the Officers acknowledge that “any alleged public
intoxication did not factor into the district court’s . . . ruling,” they tersely
contend on appeal that “there was reasonable suspicion to detain” him on
this basis nonetheless. However, “[i]ssues raised in a brief that are not
supported by argument are deemed abandoned.” Martinez-Serrano v. INS,
94 F.3d 1256, 1259 (9th Cir. 1996).

In any event, under California law, a criminal defendant must be
“incapacitated as a result” of a substance to be convicted of public
intoxication under Section 647(f). People v. Rich, 72 Cal. App. 3d 115,
122 (1977). The evidence at trial, including Abuhadwan’s own testimony,
indicates that Velazquez at no point appeared “unable to exercise care for
his . . . own safety or the safety of others.” Cal. Penal Code § 647(f). In
front of his own home leaning on a car, in the presence of his mother and
a group of friends, he was in no apparent danger at all. Nor was there any
evidence that he was endangering anyone around him when Abuhadwan
decided to detain him. Thus, a reasonable jury could have found that
Abuhadwan’s initial investigation and detention was unsupported by
reasonable suspicion that Velazquez had violated Section 647(f). That
Velazquez was later found to have had a blood alcohol level of 0.15 or
higher is of no relevance. That blood level was not known at the time
Abuhadwan decided to detain him. More importantly, a BAC level of
0.15 or higher is a Long Beach police minimum benchmark for a public
24 VELAZQUEZ V. CITY OF LONG BEACH

Duran, 904 F.2d at 1378. That is, a reasonable jury could
conclude that Abuhadwan might simply have been upset at
being subjected to what he believed to be mild sarcasm or
disrespect, and that Abuhadwan then arrested Velazquez for
the “offense of ‘contempt of cop,’ in which officers charge
resisting arrest or failure to obey or other minimal procedural
offenses simply to punish or exact retribution on disrespectful
or non-submissive individuals.” Erin Murphy,
Manufacturing Crime: Process, Pretext, and Criminal
Justice, 97 Geo. L.J 1435, 1451 n.50 (2009). But, as we held
in Duran, “law enforcement officers may not legitimately
rely” on such a basis for arrest, as doing so “would constitute
a serious First Amendment violation.” 904 F.2d at
1377–78.11

Nor did the events that took place after the initial
detention justify the arrest, on Velazquez’s version of events.
According to Velazquez, he did not resist later, either — he
was never told to put his hands behind his head and never
refused to do so, whether by uttering a profanity or otherwise.
Cf. Mackinney, 69 F.3d at 1006–07. In any event, “[i]t is well
established under California law that even ‘an outright refusal
to cooperate with police officers cannot create adequate
grounds for [police] intrusion’ without more.” Id. at 1006
(alteration in original) (quoting People v. Bower, 24 Cal.3d

intoxication arrest, not a substitute for the statutory lack of safety
elements.
11
Moreover, “contempt of cop” arrests may have other pernicious
consequences, such as wasting police resources and harming the overall
relationship between police departments and local communities. See
Christy E. Lopez, Disorderly (mis)Conduct: The Problem with “Contempt
of Cop” Arrests (June 2010), https://www.acslaw.org/sites/default/
files/Lopez_Contempt_of_Cop.pdf.
 VELAZQUEZ V. CITY OF LONG BEACH 25

638, 649 (1979)). Furthermore, according to Velazquez and
the other witnesses, he was immediately thrown to the
ground; he was not first walked toward the police car, and so
never pulled away from Abhuhadwan while doing so.
According to those witnesses, Velazquez was never given a
chance to roll over; never had his legs in the air; and never
verbally or physically threatened Abuhadwan.

Crediting Velazquez’s account of the incident — as we
must on a Rule 50(a) motion — Velazquez’s conduct
provided Abuhadwan no lawful basis to justify detaining, let
alone arresting, Velazquez. At most, Velazquez’s statements
to Abuhadwan could be interpreted as expressing skepticism
about Abuhadwan’s intervention. But “[c]riticism of the
police, profane or otherwise, is not a crime.” Poocha,
259 F.3d at 1082; see also Duran, 904 F.2d at 1378. In
“detain[ing] [Velazquez] without reasonable suspicion,”
Abuhadwan was “not lawfully performing h[is] duties” under
California law. Garcia, 177 Cal. App. 4th at 819; see also In
re Manuel G., 16 Cal. 4th at 815. And, for the purposes of
Section 148(a)(1), where police officers “ha[ve] no lawful
basis for stopping” an individual, they “ha[ve] no lawful basis
to pursue and arrest [that individual] for not acceding to the
investigatory stop.” Johnson, 724 F.3d at 1178.

In sum, there was sufficient evidence for a jury to
conclude that Abuhadwan had no lawful basis upon which to
detain or investigate Velazquez, and thus that Abuhadwan
unlawfully arrested Velazquez for resisting or obstructing a
police officer in violation of Section 148(a)(1). We reverse
26 VELAZQUEZ V. CITY OF LONG BEACH

the district court’s grant of judgment as a matter of law as to
Velazquez’s unlawful arrest claim.12

4. Effect on Excessive Force Claim

Although Velazquez does not challenge the sufficiency of
evidence as to the jury’s verdict on his § 1983 excessive force
claim, he contends that the district court’s grant of judgment
as a matter of law on his unlawful arrest claim so
substantially prejudiced the jury’s consideration of the
excessive force claim as to warrant reversal of the verdict.
We agree. Removal of the unlawful arrest claim from the
jury’s consideration, in combination with the district court’s
jury instructions, fatally infected the jury’s verdict as to
excessive force.

(i) Under Graham v. Connor, 490 U.S. 386 (1989),
determining whether force used in making an arrest is
excessive calls for a fact-intensive inquiry requiring attention
to all circumstances pertinent to the need for the force used.
See id. at 396; see also Green v. City & Cnty. of S.F.,
751 F.3d 1039, 1049 (9th Cir. 2014) (the “objective
reasonableness” of officers’ use of force “is determined by an
assessment of the totality of the circumstances”). “[T]here
are no per se rules in the Fourth Amendment excessive force
context; rather, courts ‘must still slosh [their] way through the
factbound morass of ‘reasonableness.’” Mattos v. Agarano,

12
At oral argument, the City’s counsel contended for the first time that
the officers had reason to believe that Velazquez and the other individuals
present at the scene were disturbing the peace, in violation of California
Penal Code Section 415. As this argument was not mentioned in district
court or the appellate briefs, it is waived on appeal. See Clem v. Lomeli,
566 F.3d 1177, 1182 (9th Cir. 2009).
 VELAZQUEZ V. CITY OF LONG BEACH 27

661 F.3d 433, 441 (9th Cir. 2011) (en banc) (alteration in
original) (quoting Scott v. Harris, 550 U.S. 372, 383 (2007)).
Therefore, courts “are free to consider issues outside the three
enumerated [in Graham] when additional facts are necessary
to account for the totality of circumstances in a given case.”
Id.

As we have recognized, “[b]ecause the excessive force
and false arrest factual inquiries are distinct, establishing a
lack of probable cause to make an arrest does not establish an
excessive force claim, and vice-versa.” Beier v. City of
Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004). Just proving
lack of probable cause for the arrest, for instance, does not
establish that the police used excessive force, or, indeed, any
force. See Mattos, 661 F.3d at 443 n.4 (rejecting plaintiff’s
argument that “any amount of force against her” was
excessive if the officers did not have probable cause, as the
absence of probable cause alone is insufficient to establish
excessive force). And force used by an officer to effectuate
an arrest, “regardless of whether [the officer] had probable
cause to [make the] arrest,” may still be reasonable, for
instance to overcome the arrestee’s forcible resistance. Arpin
v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 921–22
(9th Cir. 2001).13

13
Like this court, all other circuits that have addressed the question
prohibit a finding of excessive force predicated only on the fact of
unlawful arrest. See Snell v. City of York, Pa., 564 F.3d 659, 672 (3d Cir.
2009); Cortez v. McCauley, 478 F.3d 1108, 1127 (10th Cir. 2007) (en
banc); Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007); Papineau v.
Parmley, 465 F.3d 46, 61–62 (2d Cir. 2006); Bashir v. Rockdale Cnty.,
Ga., 445 F.3d 1323, 1331–32 (11th Cir. 2006); Bodine v. Warwick,
72 F.3d 393, 400–01 (3d Cir. 1995). That principle, however, is fully
consistent with the recognition that “the damages recoverable on an
unlawful arrest claim include damages suffered because of the use of force
28 VELAZQUEZ V. CITY OF LONG BEACH

Nevertheless, Graham counsels that the facts that gave
rise to an unlawful detention or arrest can factor into the
determination whether the force used to make the arrest was
excessive. Graham held that a constitutional complaint of
excessive force arises under the Fourth Amendment and
constitutes a claim concerning the overall reasonableness of
a seizure. See 490 U.S. at 394–97. “Determining whether the
force used to effect a particular seizure is ‘reasonable’ under
the Fourth Amendment requires a careful balancing of ‘the
nature and quality of the intrusion on the individual’s Fourth
Amendment interests’ against the countervailing
governmental interests at stake.” Id. at 396 (quoting
Tennessee v. Garner, 471 U.S. 1, 7–8 (1985)). Determining
whether a seizure is unreasonable because the force used was
excessive “requires careful attention to the facts and
circumstances of each particular case,” including the
consideration of the factors set forth in Graham: the “severity
of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by
flight.” 490 U.S. at 396. “Underlying Graham’s
objective-reasonableness test is the clear principle that the
force used to make an arrest must be balanced against the
need for force: it is the need for force which is at the heart of
the Graham factors.” Blankenhorn v. City of Orange,
485 F.3d 463, 480 (9th Cir. 2007) (internal quotation marks
omitted).

Applying these principles, the facts underlying the seizure
are pertinent in judging the overall reasonableness of the
seizure for Fourth Amendment purposes, including the

in effecting the arrest.” Bashir, 445 F.3d at 1332 (internal quotation
marks omitted); see also Bodine, 72 F.3d at 400.
 VELAZQUEZ V. CITY OF LONG BEACH 29

reasonableness of the force used to effectuate the seizure.
Graham specifies “the severity of the crime at issue” as one
of the factors to be considered, and stresses the need to attend
to the specific “facts and circumstances of each particular
case.” 490 U.S. at 396. Conducting this fact-based inquiry
encompasses a consideration of the facts known to the police
officers at the time. Id. Where officers are presented with
circumstances indicating that no crime was committed, the
“severity of the crime at issue” factor is necessarily
diminished as a justification for the use of force — although,
as our cases have held, the force used may still be reasonable
if the other Graham factors taken together favor that
conclusion.

The Second and Third Circuits’s approaches to the
intersection of unlawful arrest and excessive force claims are
compatible with ours, as they hold the Graham
reasonableness analysis applicable to an excessive force issue
whether or not there is also an unlawful arrest claim. See
Papineau, 465 F.3d at 61–62; Bodine, 72 F.3d at 400–01. In
Papineau, for instance, then-Judge Sotomayor explained that
“the reasonableness test established in Graham remains the
applicable test for determining when excessive force has been
used, including those cases where officers allegedly lack
probable cause to arrest.” 465 F.3d at 62. And, although the
Eleventh Circuit in Bashir held that a claim that officers
“used excessive force in the arrest because they lacked the
right to make the arrest . . . is not a discrete constitutional
violation [as] it is dependent upon and inseparable from [an]
unlawful arrest claim,” it stressed that the claim presented
there was “predicated solely on allegations the arresting
officer lacked the power to make an arrest.” 445 F.3d at
1332. Indeed, Bashir compared the circumstances there with
Thornton v. City of Macon, 132 F.3d 1395 (11th Cir. 1998),
30 VELAZQUEZ V. CITY OF LONG BEACH

a case in which the court had found that officers use
excessive force and committed an unlawful arrest. In
Thornton, Bashir explained, the Graham factor analysis
indicated that “‘the officers were not justified in using any
force.’” 445 F.3d at 1333 (quoting Thornton, 132 F.3d at
1400). Bashir’s approach, therefore, is likewise compatible
with ours detailed above.

The Tenth Circuit’s inquiry in cases “involving claims of
both unlawful arrest and excessive force arising from a single
encounter,” adopted without further elaboration by the Fifth
Circuit, appears on the surface somewhat different from our
analysis and that of the other circuits. Cortez, 478 F.3d at
1127–30; see also Freeman, 483 F.3d at 417. Cortez’s
excessive force framework requires assuming a hypothetical
lawful arrest for purposes of an excessive force claim, even
where there was none. 478 F.3d at 1129. Cortez thus
rejected one of the plaintiffs’ excessive force claims as the
force used “d[id] not exceed what would have been
reasonable to effectuate a lawful arrest under the[]
circumstances,” even though the plaintiff was arrested
without probable cause. Id.; see also Romero v. Story,
672 F.3d 880, 890 (10th Cir. 2012) (explaining that, under
Cortez, district courts facing unlawful arrest and excessive
force claims “must . . . analyze the excessive force inquiry
under the assumption the arrest was lawful”); Freeman,
483 F.3d at 417 (“[W]e must . . . analyze the excessive force
claim without regard to whether the arrest itself was
justified.”).

Still, in practice, Cortez seems to have applied an
approach similar to ours, as it did take into account the
circumstances underlying the arrest when assessing whether
excessive force was used. Taking the plaintiffs’ allegations
 VELAZQUEZ V. CITY OF LONG BEACH 31

as true, Cortez first concluded that plaintiff Tina Cortez’s
detention was unlawful. It then looked to the facts underlying
that detention in making its excessive force determination in
favor of Tina Cortez, including the facts that she “was never
the target of the investigation,” and posed no safety or flight
threat. Cortez, 478 F.3d at 1130–31.

Moreover, the excessive force claim Cortez rejected
involved simply the force required to effectuate an arrest. Id.
at 1126 (the force consisted of officers “(1) grabb[ing]
[plaintiff Rick Cortez] by the arm and pull[ing] him from the
doorway of his home; (2) handcuff[ing] him; (3) plac[ing]
him in the back seat of a locked patrol car”). We thus cannot
say what the Tenth Circuit would conclude in a case like this
one, where the force the officers applied could likely have
resulted, according to Abuhadwan himself, in “serious bodily
injury,” if not death.

In sum, we conclude that, under Graham, an excessive
force analysis takes into account, among other considerations,
the facts known to the police at the time of the arrest with
respect to the alleged offense that triggered the arrest.

(ii) Proceeding under Graham, we conclude that the grant
of the Rule 50(a) motion on the lawfulness of the arrest, in
conjunction with the district court’s instructions on the
excessive force claim, improperly influenced the jury’s
consideration of Velazquez’s excessive force claim. The
judgment on the excessive force claim therefore cannot stand.

The bulk of the evidence presented by both sides went to
both the lawful arrest and excessive force claims, and the
circumstances underlying Velazquez’s arrest were a central
issue from the outset. On the first day of trial, the district
32 VELAZQUEZ V. CITY OF LONG BEACH

judge explained to the jury that they had been called to “an
excessive force . . . and an arrest” case. Moreover,
throughout the trial, the central theory of Velazquez’s case
was that Abuhadwan had no basis for detaining or arresting
him.

Yet, as it turned out, the jury was not provided any real
opportunity to consider, as part of the excessive force claim,
the circumstances that justified, or did not justify, the
detention and arrest. When instructing the jury on excessive
force, the district court explained that “a seizure of a person
is unreasonable under the Fourth Amendment if a police
officer uses excessive force in making a lawful arrest.”
Because a verdict had been directed as to the lawfulness of
the arrest, no jury instructions provided the jury with the
elements of the California crimes asserted to have provided
reasonable suspicion or probable cause for the detention and
arrest, or directed the jury to consider as part of the excessive
force claim the basis for the detention and arrest. The Ninth
Circuit Model Jury Instructions expressly direct district courts
to instruct juries considering § 1983 unlawful arrest claims as
to the “elements or description of applicable crime for which
probable cause must have existed.” 9th Cir. Model Civ. Jury
Instr. 9.20 (2007). Had the unlawful arrest claim gone to the
jury, as it should have, these matters would have been before
the jury, front and center.

Instead, the district court effectively required the jury to
presume that the arrest was constitutionally lawful, and so not
to consider facts concerning the basis for the arrest. Doing so
removed critical factual questions that were within the jury’s
province to decide. For instance, by taking from the jury the
question whether Abuhadawan’s arrest of Velazquez for
resisting or obstructing a police officer was lawful, the
 VELAZQUEZ V. CITY OF LONG BEACH 33

district judge implied simultaneously that Velazquez was in
fact resisting or failing to obey the police officer’s lawful
instructions. Presuming such resistance could certainly have
influenced the jury’s assessment of “the need for force,”
Blankenhorn, 485 F.3d at 480, as well as its consideration of
the other Graham factors, including “whether [the suspect] is
actively resisting arrest or attempting to evade arrest by
flight,” 490 U.S. at 396. By erroneously granting judgment
as a matter of law on Velazquez’s unlawful arrest claim, the
district court impermissibly truncated the jury’s consideration
of Velazquez’s excessive force claim. Accordingly, we
reverse the jury’s verdict.14

B. Monell Claims

We also reverse the district court’s grant of the City’s
motion for a judgment as a matter of law on Velazquez’s
municipal liability claims.

Municipalities may be held directly liable for
constitutional violations under 42 U.S.C. § 1983, but they
“cannot be held liable . . . on a respondeat superior theory.”
Monell, 436 U.S. at 691. “Rather, . . . a plaintiff seeking to
impose liability on a municipality under § 1983 [must]
identify a municipal policy or custom that caused the
plaintiff’s injury.” Hunter v. Cnty. of Sacramento, 652 F.3d
1225, 1232–33 (9th Cir. 2011) (internal quotation marks
omitted). “[A] custom or practice can be inferred from . . .
evidence of repeated constitutional violations for which the
errant municipal officers were not discharged or

14
Because we reverse the jury’s verdict on the excessive force claim on
this ground alone, we do not address Velazquez’s evidentiary arguments
as to the excessive force claim.
34 VELAZQUEZ V. CITY OF LONG BEACH

reprimanded.” Id. at 1233 (internal quotation marks omitted).
Evidence of “identical incident[s]” to that alleged by the
plaintiff may establish that a municipality was put on notice
of its agents’ unconstitutional actions, Henry v. Cnty. of
Shasta, 132 F.3d 512, 518–21 (9th Cir. 1997), opinion
amended on denial of reh’g, 137 F.3d 1372 (9th Cir. 1998),
while general evidence of departmental treatment of
complaints and of the use of force can “support[] the
[plaintiff’s] theory that . . . disciplinary and complaint
processes . . . contributed to the police excesses complained
of because the procedures made clear to [the] officer that . . .
[he] could get away with anything,” Larez v. City of L.A.,
946 F.2d 630, 646–47 (9th Cir. 1991).

Velazquez advanced several theories of Monell liability
for excessive use of force, one of which was that the City had
a policy or custom of failing to investigate and discipline
officers who had allegedly committed prior instances of
excessive force. In his pre-trial motions, Velazquez
represented that Abuhadwan in particular had received “ten
citizen complaints regarding his conduct,” that three of these
complaints involved excessive force, and that Abuhadwan
had over “30 internal affairs incidents of force since 2007, 19
of them using a baton or flashlight.” At the start of trial,
however, without any explanation, the district court granted
Defendants’ motion in limine to “preclude reference to
complaints, Internal Affairs, and discipline.”15 As a result,
the evidentiary basis for a failure-to-discipline Monell theory
was never presented to the jury.

15
Defendants had argued that such evidence was irrelevant to
establishing Velazquez’s Monell claims, in addition to causing prejudice
and constituting inadmissible character evidence.
 VELAZQUEZ V. CITY OF LONG BEACH 35

“Evidence is relevant if . . . it has any tendency to make
a fact more or less probable than it would be without the
evidence.” Fed. R. Evid. 401. The excluded evidence was
relevant, indeed critical, to prove that the City was aware of
Abuhadwan’s alleged tendency to use excessive force.

The district court may have been concerned that
permitting the introduction of evidence of prior complaints
would have suggested to the jury that Abuhadwan acted in
accordance with these past actions. See Fed. R. Evid. 404(b).
But any such suggestion could have been cured short of
categorical exclusion by an appropriate limiting instruction.
See, e.g., United States v. Ramos-Atondo, 732 F.3d 1113,
1124 (9th Cir. 2013) (noting that any “practical prejudice”
resulting from the admission of Rule 404(b) evidence can be
“minimized by the district court’s careful limiting instruction
to the jury”); Dubria v. Smith, 224 F.3d 995, 1002 (9th Cir.
2000) (“[C]autionary instruction[s] [are] presumed to have
cured prejudicial impact.”). Instead, the district court entirely
prevented Velazquez from developing a potentially
meritorious Monell claim, without any explanation for its
decision.

Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996), is
particularly instructive in explaining why the exclusion of the
proffered lack-of-discipline evidence was an abuse of
discretion. The plaintiff in Beck presented five prior
complaints of excessive force against the defendant officer in
support of his Monell claim and demonstrated that none of the
complaints resulted in disciplinary action. Id. at 973. Beck
recognized that “evidence of other wrongs or acts [that are]
not admissible to prove the character of a person” under
Federal Rule of Evidence 404(b) was nonetheless admissible
for “proof of knowledge” on the part of the police
36 VELAZQUEZ V. CITY OF LONG BEACH

department. Id. Based on the admitted evidence, Beck held
that “a reasonable jury could have inferred that the Chief of
Police knew, or should have known, of [the officer’s]
propensity for violence when making arrests.” Id.

As in Beck, a jury might have been able reasonably to
infer from prior complaints that the Long Beach Police
Department was aware that Abuhadwan had previously used
excessive force when making arrests, but had taken no steps
to curb his propensity. By precluding any reference to such
evidence, the district court prevented Velazquez from even
attempting to make such a showing. We thus hold the district
court’s categorical exclusion of evidence relevant to
establishing Velazquez’s theory of municipal liability an
abuse of discretion.

In granting judgment as a matter of law, the district court
concluded that “a reasonable jury would not have a legally
sufficient evidentiary basis to find for” Velazquez on his
municipal liability claim. Fed. R. Civ. P. 50(a). But when
the district court categorically excluded relevant Monell
evidence, it “invaded the province of the jury,” to whom the
excluded evidence may well have made a difference.
Stuhlmacher v. Home Depot U.S.A., Inc., 774 F.3d 405, 409
(7th Cir. 2014).

The City does not argue that this exclusion of potentially
critical evidence was harmless. See C.B., 769 F.3d at 1021.
We therefore hold that the “incorrect evidentiary ruling
resulted in the judge erroneously entering judgment as a
matter of law for the defendants,” Stuhlmacher, 774 F.3d at
409, and reverse the district court’s grant of judgment as a
matter of law on the Monell claims.
 VELAZQUEZ V. CITY OF LONG BEACH 37

C. State Law Claims

The district court dismissed Velazquez’s state law claims,
over plaintiff counsel’s objection, on the ground that
instructing on both federal and state liability for false arrest
and excessive force would confuse the jury. The dismissal of
the state law claims was error.

A district court “may decline to exercise supplemental
jurisdiction over a claim . . . if . . . the district court has
dismissed all claims over which it has original jurisdiction.”
28 U.S.C. § 1367(c); see also Sanford v. MemberWorks, Inc.,
483 F.3d 956, 965 (9th Cir. 2007). Here, the district court did
not dismiss all of Velazquez’s federal claims when it
dismissed his state law claims, as it sent Velazquez’s § 1983
excessive force claim to the jury. Nor did the district court
suggest that the dismissal was based on one of the other
reasons set forth in § 1367(c) — for example, that the state
law claims “raise[d] a novel or complex issue of State law”
or “substantially predominate[d] over the claim or claims
over which the district court has original jurisdiction.”
28 U.S.C. § 1367(c). Moreover, the district court gave no
reason to believe that the general considerations underlying
the supplemental jurisdiction doctrine — “judicial economy,
convenience, fairness, and comity” — counseled dismissal of
the state-law claims. Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 n.7 (1988).

Rather, the district court’s sole explanation for the
dismissal was that instructing the jury on the § 1983 claims
while simultaneously instructing it on the state claims for
false arrest and assault and battery would be difficult or
misleading. But such claims are routinely combined in
district courts, and we are unaware of any case in which
38 VELAZQUEZ V. CITY OF LONG BEACH

prejudicial confusion resulted. See, e.g., Chaudhry v. City of
L.A., 751 F.3d 1096, 1102 (9th Cir. 2014) (reviewing jury
verdict on both § 1983 excessive force and state-law assault
claims); Mahach-Watkins v. Depee, 593 F.3d 1054, 1056
(9th Cir. 2010) (reviewing jury verdict on both § 1983
excessive force and state-law tort claims). Careful
instructions should be sufficient to highlight for the jury the
differences between the elements of the federal and the state
causes of action. “[J]uries are presumed to follow their
instructions.” Richardson v. Marsh, 481 U.S. 200, 211
(1987). In any case, the district court gave no reason for its
dismissal of Velazquez’s separate state law claims of
negligence and intentional infliction of emotional distress.

We therefore hold that the district court abused its
discretion in blanketly refusing to exercise supplemental
jurisdiction, and so reverse its dismissal of Velazquez’s state
law claims.

III. Conclusion

“Police officers have a difficult job, and they deserve the
respect of their community.” Mackinney, 69 F.3d at 1007.
At the same time, “[t]he freedom of individuals verbally to
oppose or challenge police action without thereby risking
arrest is one of the principal characteristics by which we
distinguish a free nation from a police state.” Hill, 482 U.S.
at 462–63. And plaintiffs in § 1983 cases challenging police
action, like other plaintiffs in civil cases in federal court, have
a constitutionally-based right to a jury verdict as long as they
present evidence on which a reasonable jury could decide in
their favor.
 VELAZQUEZ V. CITY OF LONG BEACH 39

Velazquez was not accorded his right to such a verdict at
all on his unlawful arrest and Monell claims. And on the
excessive force claim, the jury’s verdict was fatally infected
by the trial judge’s ruling on the Rule 50(a) motion.
Accordingly, for the reasons set forth above, we reverse the
district court’s grant of judgment as a matter of law as to the
unlawful arrest and Monell claims, reverse the jury’s verdict
on the excessive force claim, reverse the district court’s
dismissal without prejudice of the state law claims, and
remand for a new trial.

Furthermore, we instruct the Chief Judge for the Central
District of California to reassign this case to a different
district judge on remand. Although the district judge may
have intended to afford Velazquez a fair trial, reassignment
is warranted here because the judge may “have substantial
difficulty in putting out of his . . . mind previously expressed
views or findings determined to be erroneous.” United States
v. Rivera, 682 F.3d 1223, 1237 (9th Cir. 2012) (internal
quotation marks omitted).

During the Rule 50 colloquy, for example, the district
judge frequently indicated that he disbelieved Velazquez and
his witnesses. He also stated to Velazquez’s counsel, as if the
practice of preparing witnesses were unusual or made the
testimony suspect, that “it appears that the witnesses were
prepared to answer those questions.” Furthermore, the record
reveals that, during trial, the district judge criticized and
rebuked Velazquez’s counsel numerous times — often for
exceedingly minor issues — while maintaining a more
40 VELAZQUEZ V. CITY OF LONG BEACH

permissive and accommodating approach toward defense
counsel.16

“Litigants are entitled to a fair trial and a perception that
the presiding judge does not possess a bias that will affect
rulings during trial.” Montiel v. City of Los Angeles, 2 F.3d
335, 344 (9th Cir. 1993). Reassignment is therefore
“advisable to preserve the appearance of justice.” Rivera,
682 F.3d at 1237.

REVERSED AND REMANDED.

16
For example, the district judge at several points during the trial
rebuked Velazquez’s lawyer for thanking him, stating “Mr. Zola, I don’t
have to be thanked for anything. I’m not here to do anybody on either side
any favors,” and “don’t thank me for anything I do. I do it because I am
required to do it under my oath.” The judge also criticized the lawyer for
saying “good afternoon.”