Blankerhorn v. City of Orange

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GARY BLANKENHORN, 
Plaintiff-Appellant,
v. No. 04-55938
CITY OF ORANGE; ANDY ROMERO;
DUNG NGUYEN; GARRETT ROSS;  D.C. No.
CV-02-01160-GLT
TAMARA SOUTH; GRAY, Sergeant;
OPINION
MONTANO, Officer; KAYANO,
Officer; ROMAN, Officer,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Gary L. Taylor, District Judge, Presiding

Argued and Submitted
March 6, 2006—Pasadena, California

Filed May 8, 2007

Before: M. Margaret McKeown and Marsha S. Berzon,
Circuit Judges, and Samuel P. King,* District Judge.

Opinion by Judge King;
Partial Concurrence and Partial Dissent by Judge Berzon

*The Honorable Samuel P. King, Senior United States District Judge
for the District of Hawaii, sitting by designation.

5187
 BLANKENHORN v. CITY OF ORANGE 5193

COUNSEL

Paul L. Hoffman and Michael S. Morrison, Schonbrun DeSi-
mone Seplow Harris & Hoffman, Venice, California, for the
appellant.

M. Lois Boback, Woodruff, Spradlin & Smart, Orange, Cali-
fornia; and David A. De Berry, City Attorney, City of Orange,
Orange, California, for the appellees.

OPINION

KING, District Judge:

In July 2001, police officers from the City of Orange
(“City”) found Gary Blankenhorn (“Blankenhorn”) at a shop-
5194 BLANKENHORN v. CITY OF ORANGE
ping mall where, six months before, he had been evicted and
permanently banned from entering again. The officers
arrested Blankenhorn on suspicion of trespass, and he was
later charged with disturbing the peace, trespass, and three
counts of resisting arrest. The prosecutor also added a gang-
related enhancement charge. After Blankenhorn had spent
three months in jail, all charges were dropped and he was
released.

Blankenhorn then brought this civil rights suit against
Defendants under 42 U.S.C. § 1983 for unlawful arrest,
excessive force, and malicious prosecution; and under Cali-
fornia state law for false imprisonment, negligence, assault
and battery, and intentional infliction of emotional distress.
Blankenhorn alleges that the police officers did not have
probable cause to arrest him and that they used unreasonable
force during the arrest by gang-tackling him, punching him,
and using hobble restraints. He also seeks damages from the
City and Chief Andy Romero (“Romero”) on theories of
municipal and supervisorial liability.

The district court granted Defendants’ motion for summary
judgment on all of Blankenhorn’s causes of action, and
Blankenhorn timely appealed. We have jurisdiction under 28
U.S.C. § 1291. We affirm in part and reverse and remand in
part.

I.

On February 4, 2001, a security guard at The Block at
Orange (“The Block” or “mall”), a shopping mall, issued
Blankenhorn a “Notice Forbidding Trespass” and asked him
to leave the premises. The Notice stated: “You are hereby
notified that you are FORBIDDEN TO TRESPASS or enter
upon my lands or buildings thereof . . . Failure to comply with
this NOTICE shall result in your prosecution for TRESPASS-
ING.” Sergeant Jeff Gray (“Gray”) was at The Block when
Blankenhorn was ejected on February 4, 2001, but did not
 BLANKENHORN v. CITY OF ORANGE 5195
actually see mall security issue the notice. Gray was, how-
ever, “aware that Gary Blankenhorn had been ejected from
The Block at that time and was provided notice that he was
not to return.”

Sometime around the first week of July 2001, Officer Gar-
ret Ross (“Ross”), heard a radio report of a gang fight at The
Block and, shortly afterward, saw Blankenhorn running from
the area. Ross stopped Blankenhorn, they sat down together,
and Ross asked Blankenhorn what he knew about the fight.
Ross found Blankenhorn “completely calm” and “coopera-
tive” throughout the interview.

About midnight on July 28, 2001, Gray saw Blankenhorn
in a crowd at The Block. He could not remember Blanken-
horn’s name but believed he had previously received a Notice
Forbidding Trespass. Gray asked Officer Dung Nguyen
(“Nguyen”) to help him locate Blankenhorn so they “could
talk to him, identify him and determine whether The Block
security wished to have him removed or take some other
action.” In Nguyen’s police report, Nguyen stated that Gray
told him that Blankenhorn is a “known 18th Street gang mem-
ber and had been banned from the Block facility in February
2001.” A short time later, Nguyen and Gray spotted Blanken-
horn, who was talking with Victor Garcia (“Garcia”) and Gar-
cia’s younger brother. A video1 taken by a mall security
camera shows that there was another young boy there as well.
1
A pole in the foreground of the video obstructs much of the encounter
between Blankenhorn and the officers. Furthermore, the video has no
audio. As a result, the video is of only limited assistance in determining
what happened during the encounter between Blankenhorn and the defen-
dant police officers. Not surprisingly, given these limitations, the parties
draw different inferences from the video regarding what actually occurred
during the incident. Because our review is of the district court’s grant of
summary judgment in favor of the Defendants, we draw all reasonable
inferences that can be drawn from the video in Blankenhorn’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (holding that
on summary judgment “the drawing of legitimate inferences from the facts
are jury functions, not those of a judge” and “all justifiable inferences”
must be drawn in favor of the non-movant).
5196 BLANKENHORN v. CITY OF ORANGE
The parties dispute certain incidents that occurred during
this initial encounter. In his police report, Nguyen claims that
he immediately told Blankenhorn he was being “detained for
trespassing.” In his declaration supporting the motion for
summary judgment, Nguyen claims he explained to Blanken-
horn that “he was being stopped so that we could determine
his identity and confirm with security whether or not he was
allowed at the location.” Nguyen also says in his police report
that, because Blankenhorn had a prior conviction for robbery
and was a known member of the 18th Street Gang, he asked
Blankenhorn if he was carrying any weapons.

Blankenhorn’s version of the initial encounter is quite dif-
ferent. He alleges that Nguyen, standing about fifteen feet
away, yelled for him to come over because he wanted to talk
to him. Blankenhorn asked why, but Nguyen did not respond.
Blankenhorn then said, “I’m having a conversation with a
friend, you rudely interrupt me, what’s wrong with you, you
don’t have any manners?” When Blankenhorn continued talk-
ing with Garcia, Nguyen simply stared at them. Finally,
Blankenhorn said, “What’s up? You want to talk to me[,]
come over here, talk to me, then.” Nguyen asked him what he
was doing. Blankenhorn said he was talking to a friend and
asked if Nguyen had any more questions. When Nguyen did
not respond, Blankenhorn tried to walk away. Nguyen then
got in front of him and put his hands out to prevent him from
leaving. Blankenhorn asked Nguyen why he could not leave,
but Nguyen again did not respond. When Blankenhorn tried
to walk around Nguyen, he grabbed Blankenhorn by the arm.
When Blankenhorn, by his own admission, “yanked out of
[Nguyen’s] grasp,” the officer threatened to spray him with
mace.

A security guard employed by The Block, Trevor Medlin
(“Medlin”), joined Nguyen and Gray shortly after the initial
stop. Although the parties’ statements do not make clear
exactly when he arrived, Medlin is already at the scene when
the video of the encounter begins. A short time after the video
 BLANKENHORN v. CITY OF ORANGE 5197
begins, another officer, Detective Tamara South (“South”),
appears on the scene. South came in response to Gray’s
request for back-up.

The parties characterize Blankenhorn’s conduct before
being taken into custody somewhat differently. Gray, Nguyen,
and South described Blankenhorn as rude, uncooperative, and
verbally abusive during the initial encounter. Blankenhorn
admits he was “angry” and “loud,” that he used profanity, and
that, in frustration, he threw his driver’s license on the
ground. Both Nguyen’s and Ross’s police reports state that
Blankenhorn took a fighting stance and clenched his fists.
South’s report says Blankenhorn several times approached
Nguyen “in a threatening manner.” Blankenhorn denies this.
The video shows Blankenhorn gesture several times by rais-
ing his arms above his head and touching his chest. It also
shows him approach Nguyen and once point at him. But it
does not show Blankenhorn clench his fists. South also
claimed in her police report that during the stop Blankenhorn
yelled out he was a member of the 18th Street Gang. Blanken-
horn and Garcia deny Blankenhorn ever identified himself as
a gang member.

The parties also dispute how the officers made the arrest.
Nguyen’s declaration states that he asked Blankenhorn to
kneel down so he could handcuff him. Blankenhorn refused,
saying, “I’m not going to my f***ing knees.” Blankenhorn
alleges that, immediately after he said this, Nguyen, Ross,2
and South “all jumped on [him],” though all three officers and
Gray maintain that Nguyen first reached for Blankenhorn’s
left wrist to place him in handcuffs. The video shows the offi-
cers and Blankenhorn struggling for several seconds before
the officers finally take him to the ground. Blankenhorn was
2
The video shows that Ross arrived on the scene and stood behind
Blankenhorn just seconds before the officers attempted to take him into
custody. It is not clear from the video whether Ross heard Nguyen’s
request to kneel or Blankenhorn’s response.
5198 BLANKENHORN v. CITY OF ORANGE
handcuffed. Once this was accomplished, Gray ordered Ross
to secure his wrists and ankles with ripp-hobble restraints, and
Ross did so.3

Blankenhorn claims that, during the struggle, Nguyen
punched him several times, and another officer or officers
placed a knee behind his neck and pressed his face to the
ground. The video clearly shows Nguyen punch Blankenhorn
in the head and twice more in the side. Nguyen landed at least
one punch to Blankenhorn’s body after Blankenhorn was
already on the ground. Though Nguyen, South, and Ross fail
to mention the punches in their police reports, they all
reported that Blankenhorn resisted being handcuffed by
maneuvering his hands and arms under his body. Blankenhorn
denies he ever did this. It is not clear from the video whether
Blankenhorn so maneuvered.

Blankenhorn was charged by information on September 17,
2001, with one count of trespass, three counts of resisting
arrest, and one count of disturbing the peace. The trespass was
charged as a misdemeanor, but the resisting arrest and disturb-
ing the peace counts were charged as felonies due to a gang-
related enhancement.4 At the preliminary hearing, Nguyen
admitted that, though he did not mention it in his police
3
Officers Kayano (“Kayano”) and Montano (“Montano”) arrived during
the struggle. Upon seeing the other officers trying to tackle Blankenhorn,
Kayano ran over to the pile and grabbed and held Blankenhorn’s left arm
so it could be handcuffed. Though Kayano stated in his declaration that
he could not remember whether he or Nguyen actually placed the hand-
cuffs on Blankenhorn’s left wrist, Kayano was certain that the handcuffs
used were his own. Montano helped with crowd control. Officer Paul
Roman (“Roman”) arrived on the scene after Blankenhorn was already
subdued.
4
California law provided at the time of Blankenhorn’s arrest for the
imprisonment of “[a]ny person who is convicted of a public offense pun-
ishable as a felony or a misdemeanor, which is committed for the benefit
of, at the direction of or in association with, any criminal street gang with
the specific intent to promote, further, or assist in any criminal conduct by
gang members.” CAL. PEN. CODE § 186.22(d) (West 1999 & Supp. 2001).
 BLANKENHORN v. CITY OF ORANGE 5199
reports, he punched Blankenhorn several times when making
the arrest. The deputy district attorney, Sonia Balleste
(“Balleste”), later decided to dismiss all charges against
Blankenhorn because she believed Nguyen’s admission at the
preliminary hearing would damage his credibility as a witness
and “cause enough of a concern in a jury’s mind to raise a
reasonable doubt.” By that time, however, Blankenhorn had
already spent three months in jail.

II.

A grant of summary judgment is reviewed de novo. Olsen
v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).
Likewise, a grant of summary judgment on the ground of
qualified immunity is also reviewed de novo. Martinez v.
Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003).

We may not affirm a grant of summary judgment if there
is any genuine issue of material fact or the district court incor-
rectly applied the substantive law. See Olsen, 363 F.3d at 922.
Because “[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge,” when reviewing
a grant of summary judgment, “[t]he evidence of the non-
movant is to be believed, and all justifiable inferences are to
be drawn in his favor.” Anderson, 477 U.S. at 255. “[I]f a
rational trier of fact might resolve the issue in favor of the
nonmoving party, summary judgment must be denied.” T.W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d
626, 631 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

III.

A. Blankenhorn’s Causes of Action Under § 1983.

1. Unlawful Arrest.

Blankenhorn claims that his arrest violated his Fourth
Amendment rights. A warrantless arrest of an individual in a
5200 BLANKENHORN v. CITY OF ORANGE
public place for a crime committed in an officer’s presence
violates the Fourth Amendment if the arrest is not supported
by probable cause. See, e.g., Atwater v. City of Lago Vista,
532 U.S. 318, 354 (2001). Defendants seek qualified immu-
nity from this claim.

“Qualified immunity is ‘an entitlement not to stand trial or
face the other burdens of litigation.’ ” Saucier v. Katz, 533
U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S.
511, 526 (1985)). Defendants are entitled to such relief only
if the facts alleged and evidence submitted, resolved in
Blankenhorn’s favor and viewed in the light most favorable
to him, show that their conduct did not violate a federal right;
or, if it did, the scope of that right was not clearly established
at the time. See, e.g., Beier v. City of Lewiston, 354 F.3d
1058, 1064 (9th Cir. 2004).

Absent unusual circumstances, the analysis proceeds by
first concentrating on whether there was a constitutional vio-
lation. Even if it might be easier analytically to address
whether the scope of the right was “clearly established,” we
are to decide the constitutional question first. See Motley v.
Parks, 432 F.3d 1072, 1077-78 (9th Cir. 2005) (en banc); see
also Meyers v. Redwood City, 400 F.3d 765, 770 (9th Cir.
2005).

Thus, we first address whether Defendants violated
Blankenhorn’s Fourth Amendment Rights. If no violation is
found, Blankenhorn cannot prevail. On the other hand, if there
is a violation (or if there is a triable question of fact in that
regard), then we must determine whether that constitutional
violation was clearly established at the time. “Finally, even if
the violated right was clearly established, the Saucier court
recognized that it may be difficult for a police officer fully to
appreciate how the legal constraints apply to the specific situ-
ation he or she faces. Under such a circumstance, ‘[i]f the
officer’s mistake as to what the law requires is reasonable, . . .
the officer is entitled to the immunity defense.’ ” Motley, 432
 BLANKENHORN v. CITY OF ORANGE 5201
F.3d at 1077 (quoting Saucier, 533 U.S. at 205) (alteration in
original).

a. Officers had Probable Cause to Arrest.

[1] “A police officer may make a warrantless arrest when
the ‘officer has probable cause to believe that the person to be
arrested has committed a felony, whether or not a felony, in
fact, has been committed.’ ” Peng v. Mei Chin Penghu, 335
F.3d 970, 976 (9th Cir. 2003) (quoting Cal. Penal Code
§ 836(a)(3) (West 2003)). In California, “an officer has proba-
ble cause for a warrantless arrest ‘if the facts known to him
would lead a [person] of ordinary care and prudence to
believe and conscientiously entertain an honest and strong
suspicion that the person is guilty of a crime.’ ” Id. (citing
People v. Adams, 221 Cal. Rptr. 298, 301 (Cal. Ct. App.
1985)). Federal standards are consistent: “The test for whether
probable cause exists is whether ‘at the moment of arrest the
facts and circumstances within the knowledge of the arresting
officers and of which they had reasonably trustworthy infor-
mation were sufficient to warrant a prudent [person] in believ-
ing that the petitioner had committed or was committing an
offense.’ ” United States v. Jensen, 425 F.3d 698, 704 (9th
Cir. 2005) (citation omitted), cert. denied, 126 S. Ct. 1664
(2006).

[2] “Probable cause exists when, under the totality of the
circumstances known to the arresting officers (or within the
knowledge of the other officers at the scene), a prudent person
would believe the suspect had committed a crime.” Dubner v.
City & County of San Francisco, 266 F.3d 959, 966 (9th Cir.
2001) (citation omitted). “When there has been communica-
tions among [officers], probable cause can rest upon the
investigating [officers’] ‘collective knowledge.’ ” United
States v. Del Vizo, 918 F.2d 821, 826 (9th Cir. 1990) (citation
omitted).

“Because probable cause must be evaluated from the per-
spective of ‘prudent [people], not legal technicians,’ an officer
5202 BLANKENHORN v. CITY OF ORANGE
need not have probable cause for every element of the
offense. However, when specific intent is a required element
of the offense, the arresting officer must have probable cause
for that element in order to reasonably believe that a crime
has occurred.” Gasho v. United States, 39 F.3d 1420, 1428
(9th Cir. 1994) (citations omitted).

We focus on trespassing. Although Blankenhorn was also
arrested for resisting arrest under California Penal Code sec-
tion 148(a), any such resistence (and corresponding probable
cause) arose out of the initial arrest for trespassing. If there
was no probable cause to arrest Blankenhorn for trespassing
in the first place, it makes no difference for present purposes
if he resisted arrest. See Arpin v. Santa Clara Valley Transp.
Agency, 261 F.3d 912, 920 (9th Cir. 2001) (“If the officers
could not lawfully arrest [a person] for battery, the officers
could also not lawfully arrest [the person] for resisting
arrest.”) (citing In Re. Manuel G., 941 P.2d 880, 885 (Cal.
1997)); see also People v. Simons, 50 Cal. Rptr. 2d 351, 355
(Cal. Ct. App. 1996) (“Defendant cannot be convicted of an
offense against an officer engaged in the performance of offi-
cial duties unless the officer was acting lawfully at the time.
‘The rule flows from the premise that because an officer has
no duty to take illegal action, he or she is not engaged in
‘duties,’ for purposes of an offense defined in such terms, if
the officer’s conduct is unlawful.’ ”) (quoting People v. Gon-
zalez, 800 P.2d 1159, 1176 (Cal. 1990) (internal citation omit-
ted)).

Blankenhorn was forbidden from entering The Block. To
reiterate, he was issued a “Notice Forbidding Trespass” stat-
ing: “You are hereby notified that you are FORBIDDEN TO
TRESPASS or enter upon my lands or buildings thereof . . .
Failure to comply with this NOTICE shall result in your pros-
ecution for TRESPASSING.” He knew he was banned by The
Block. Officer Gray saw Blankenhorn and knew or thought he
had previously been banned by the owner. Gray (and other
officers) knew Blankenhorn was somehow associated with the
 BLANKENHORN v. CITY OF ORANGE 5203
“18th Street” gang.5 Gray and Nguyen then stopped Blanken-
horn, sought identification to confirm whether or not he had
previously been banned, and events escalated. Officers were
seeking an indication from The Block’s management or secur-
ity as to whether The Block wanted him removed, or had
actually been told by security that The Block wanted him
arrested for trespassing. And security guard Medlin did issue
(although immediately after the incident) a written citizen’s
arrest statement form indicating Blankenhorn was trespassing
and demanding officers “receive custody of [Blankenhorn]
pursuant to Penal Code Sections 847, 849 and 142.”6

Given those facts, Defendants had probable cause to
believe Blankenhorn was trespassing and that The Block
would want to prosecute or have him removed. Defendants
(Gray and Nguyen in particular) could have “conscientiously
entertain[ed] an honest and strong suspicion that [Blanken-
horn] [was] guilty of a crime.” Peng, 335 F.3d at 967. That
is, “under the totality of the circumstances known to the
arresting officers (or within the knowledge of the other offi-
cers at the scene), a prudent person would believe” Blanken-
horn was trespassing.” Dubner, 266 F.3d at 966.

Blankenhorn was arrested for a suspected violation of Cali-
fornia Penal Code section 602(j)7 [now section 602(k)] but
5
Blankenhorn does not deny he was, at least at some point, a gang mem-
ber; he testified that he “repeatedly told [police] ‘[a]t one point in time I
was [a gang member]. [But] I’m not doing that no more.’ ” There is no
disputed evidence to contradict various officers’ declarations and testi-
mony that Blankenhorn was known to officers to be (or have been) a gang
member on July 28, 2001, when he was arrested. (Officer South indicated
that she heard Blankenhorn yell in a loud voice at Nguyen and Gray on
July 28, 2001, that he was an “18th Street” gang member; Blankenhorn
and another witness, however, denies that he said that at the time.)
6
Other evidence in the record indicates that Blankenhorn had been dis-
ruptive earlier in the evening and had been ejected from a restaurant at
The Block. There is no indication, however, that officers knew about this
incident before or at the time of the arrest.
7
When Blankenhorn was arrested, section 602(j) made it a misdemeanor
trespass to “[e]nter[ ] any lands, whether unenclosed or enclosed by fence,
5204 BLANKENHORN v. CITY OF ORANGE
ultimately charged with violating section 602(n) [now section
602(o)].8 It doesn’t matter for present purposes if he was
charged with a different crime than that for which he was
arrested. “[P]robable cause may exist for an arrest ‘for a
closely related offense, even if that offense was not invoked
by the arresting officer, as long as it involves the same con-
duct for which the suspect was arrested.’ ” Bingham v. City of
Manhattan Beach, 341 F.3d 939, 950 (9th Cir. 2003) (citation
omitted). “As long as the officers had some reasonable basis
to believe [Blankenhorn] had committed a crime, the arrest is
justified as being [ ] based on probable cause. Probable cause
need only exist as to any offense that could be charged under
the circumstances.” Id. at 952 (quoting Barna v. City of Perth
Amboy, 42 F.3d 809, 819 (3d Cir. 1994)).

[3] Under then-section 602(j), reasonable officers could
have concluded that Blankenhorn — known to be (or have
been) a gang member who had previously been banned a few

for the purpose of injuring any property or property rights or with the
intention of interfering with, obstructing, or injuring any lawful business
or occupation carried on by the owner of the land, the owner’s agent or
by the person in lawful possession.” CAL. PEN. CODE § 602(j) (West 1999
& Supp. 2001).
8
When Blankenhorn was arrested, in relevant part section 602(n) made
the following action a misdemeanor trespass:
Refusing or failing to leave land, real property, or structures
belonging to or lawfully occupied by another and not open to the
general public, upon being requested to leave by (1) a peace offi-
cer at the request of the owner, the owner’s agent, or the person
in lawful possession, and upon being informed by the peace offi-
cer that he or she is acting at the request of the owner, the
owner’s agent, or the person in lawful possession, or (2) the
owner, the owner’s agent, or the person in lawful possession. The
owner, the owner’s agent, or the person in lawful possession shall
make a separate request to the peace officer on each occasion
when the peace officer’s assistance in dealing with a trespass is
requested.
CAL. PEN. CODE § 602(n) (West 1999 & Supp. 2001).
 BLANKENHORN v. CITY OF ORANGE 5205
months earlier — could have returned either “for the purpose
of injuring any property or property rights” or “with the inten-
tion of interfering with, obstructing, or injuring any lawful
business.” Reasonable officers could have thought that
Blankenhorn, knowing he had been banned a few months ear-
lier, could have intended that his presence would constitute
“injury to property rights” or “interference” with The Block’s
business.

[4] Alternatively, a reasonable officer could conclude that
Blankenhorn’s conduct satisfied the elements under section
602(n). His return to The Block constituted a “[r]efus[al] or
fail[ure] to leave” after being issued the Notice Forbidding
Trespass. While a shopping center, under California law, is
generally “open to the public,” the Notice Forbidding Tres-
pass arguably rendered The Block “not open to the public”
with respect to Blankenhorn. Cf. Picray v. Sealock, 138 F.3d
767, 772 (9th Cir. 1998) (discussing a similar requirement in
an Oregon trespassing statute and recognizing that “premises
are not considered ‘open to the public’ with regard to a partic-
ular individual when that person previously has been barred
from the property.”). And the Notice Forbidding Trespass
issued to Blankenhorn could constitute at least part of a “re-
quest to leave” under section 602(n).

Section 602(n) requires a “separate request to the peace
officer [by the owner] on each occasion when the peace offi-
cer’s assistance in dealing with a trespass is requested” and
the undisputed facts indicate Defendants gave The Block a
chance to fulfill this requirement and that it was fulfilled.
Nguyen declared that “I tried to explain to Blankenhorn that
he was being stopped so that we could determine his identity
and confirm with security whether or not he was allowed at
the location . . . . Block security confirmed that Mr. Blanken-
horn had previously been banned from the Block and that they
wished to place him under arrest for trespassing.” Similarly,
Gray indicated that they were determining “whether Block
security wished to have [Blankenhorn] removed or take some
5206 BLANKENHORN v. CITY OF ORANGE
other action” and that “security further confirmed that they
wished to place Mr. Blankenhorn under arrest for trespassing.
. . . Block security then advised Mr. Blankenhorn that he was
under arrest for trespassing.”

As it turns out, upon close parsing of the statutory language
and California case law, it appears an actual conviction for
trespass might have been difficult without additional evi-
dence. The California Penal Code does not define “injury to
property” nor “interfer[ence] with” any lawful business as
those terms are used in section 602(j). Rather, section 602(j)
is to be interpreted “according to its general usage.” People
v. Harris, 12 Cal. Rptr. 916, 919 n.4 (Cal. Ct. App. 1961). In
a criminal context under California law, “[t]he word ‘inter-
fere’ is a word of ‘well recognized, defined meaning.’ . . . It
imports to ‘disarrange,’ ‘disturb,’ or ‘hinder.’ ” People v.
Agnello, 66 Cal. Rptr. 571, 574 (Cal. Ct. App. 1968) (citations
omitted). A fact-finder could certainly infer that Blankenhorn
was at The Block deliberately and that he knew his presence
was not welcome. But it might be more difficult to prove such
a deliberate presence was intended to “injure property rights”
or “interfere” with its business. Compare In re Ball, 100 Cal.
Rptr. 189, 193 (Cal. Ct. App. 1972) (concluding that the req-
uisite intent under section 602(j) could be inferred from the
defendant “deliberately entering [a Disneyland] parking lot
and engaging in the conduct disclosed after having requested
and been denied permission to do so and from his refusal to
leave when asked to do so.”) (emphases added).9
9
Blankenhorn’s reliance upon In re Wallace, 475 P.2d 208 (Cal. 1970)
(In Bank), for the proposition that criminal intent cannot be inferred
merely from Blankenhorn’s return to The Block is misplaced. In that case,
three protesters were asked by a deputy sheriff to leave a county fair but
returned two hours later to resume their leafletting. Id. at 212. When asked
a second time to leave, the protesters refused and were arrested for tres-
passing. Id. The only evidence that the protesters had been obstructing
business at the fair was the deputy sheriff’s testimony that he informed
them they would be arrested “if they did not cease their obstruction of the
pathway.” Id. The court held that the officer’s testimony “establishe[d]
 BLANKENHORN v. CITY OF ORANGE 5207
Likewise, actually convicting under section 602(n) might
have been difficult. It is undisputed that Blankenhorn was not
asked to leave the premises on that night (i.e., other than the
Notice Forbidding Trespass issued in February of 2001).
Although the statute does require a “request to leave,” it does
not specifically provide that the request must be contempora-
neous. (The statute specifically requires a “separate request to
the peace officer on each occasion when the peace officer’s
request in dealing with a trespass is required,” but the statute
does not provide that a specific request is required “on each
occasion” to the accused trespasser.) But a version of the stat-
ute has been interpreted to require “dual requests to leave, one
from a peace officer, the other from the property possessor.”
People v. Medrano, 144 Cal. Rptr. 217, 227 (Cal. Ct. App.
1978), disapproved of on other grounds, Vista Verde Farms
v. Agricultural Relations Bd., 625 P.2d 263 (Cal. 1981). In
any event, Defendants appear to concede that Blankenhorn
should have been asked to leave that night before he could be
convicted under 602(n).

Ultimately, however, our inquiry is not whether Blanken-
horn was trespassing. Rather, it is whether a reasonable offi-

only the content of his admonition to [the protesters], not the fact of actual
obstruction.” Id. Finding that the protesters “were not in fact arrested
because of any physical ‘obstruction’ they may have caused, but simply
because they insisted on their lawful right to distribute leaflets,” the court
overturned the conviction. Id. Thus, In re Wallace does not stand for the
proposition that criminal intent sufficient to support probable cause for a
trespass arrest cannot be inferred from the arrestee’s return to property
after previously being told to stay away. Rather, it holds that a conviction
under § 602(j) without evidence of actual interference or obstruction is
invalid.
Unlike in In re Wallace, there is undisputed evidence of possible inter-
ference in Blankenhorn’s case. There’s no indication Blankenhorn was
distributing leaflets or the like. Blankenhorn had been banned and Medlin
was required to leave his duties at the security station to find Blankenhorn
and, once again, usher him off the premises. Whether these facts alone
would suffice to convict under § 602(j), they would justify a reasonable
officer in believing that Blankenhorn was trespassing.
5208 BLANKENHORN v. CITY OF ORANGE
cer had probable cause to think he could have been. See, e.g.,
Anderson v. Creighton, 483 U.S. 635, 641 (1987); Peng, 335
F.3d at 976 (“A police officer may make a warrantless arrest
when the ‘officer has probable cause to believe that the person
to be arrested has committed a felony, whether or not a fel-
ony, in fact, has been committed.’ ”) (citation omitted); cf.
Tobias v. County of Putnam, 191 F. Supp. 2d 364, 374
(S.D.N.Y. 2002) (“Whether or not the criminal trespassing
charge would have led to an indictment or a conviction is of
no moment. It is sufficient for the officer defendants to show
that they had arguable probable cause to believe that [the sec-
tion 1983 plaintiff] was committing a trespass.”).

[5] As we have discussed, given (1) the prior “Notice For-
bidding Trespass” and other facts known to the officers, and
(2) The Block security’s request that police place Blanken-
horn under arrest, it was reasonable for officers to believe
they had probable cause to arrest Blankenhorn for trespassing.

b. The Law Was Not Clearly Established.

Moreover, even absent probable cause (or if there were a
factual issue as to whether probable cause existed), Defen-
dants are entitled to qualified immunity under the second part
of the Saucier analysis. Because probable cause is a complex
question here, it is appropriate to proceed past the threshold
question. See Meyers, 400 F.3d at 770 (“Although we con-
clude that the Defendants did not violate the constitutional
rights of the Plaintiffs, given the complexity of the question,
we address the easier question of qualified immunity as
well.”).

[6] “[E]ven absent probable cause, qualified immunity is
available if a reasonable police officer could have believed
that his or her conduct was lawful, in light of the clearly
established law and the information the searching officers
possessed.” Peng, 335 F.3d at 980. “Whether a right is
‘clearly established’ for purposes of qualified immunity is an
 BLANKENHORN v. CITY OF ORANGE 5209
inquiry that ‘must be undertaken in light of the specific con-
text of the case, not as a broad general proposition.’ In other
words, ‘[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he is
doing violates that right.’ ” Graves v. City of Coeur d’Alene,
339 F.3d 828, 846 (9th Cir. 2003) (quoting Saucier, 533 U.S.
at 201-02) (other citation omitted).

[7] Thus, while it was clearly established long ago that an
officer may not conduct a warrantless arrest absent probable
cause, our analysis must be more focused. Applied to the Cal-
ifornia trespassing statutes, as explained earlier, there is no
statutory definition of “injury to property” or “interfer[ence]”
with a lawful business under section 602(j). Nor does Califor-
nia case law make clear that returning to property after having
been permanently banned cannot constitute an “injury” to
property or “interference with” (or be a “disturbance”10), espe-
cially where a property owner specifically requests police to
arrest a person.

[8] Similarly, there is no California case law specifically
holding that a previous, relatively-recent, banishment from
private property cannot serve as a requisite “request to leave”
under section 602(n). What little case law there is interpreting
similar issues has emerged from First Amendment or union-
organizing contexts. See, e.g., In re. Ball, 100 Cal. Rptr. at
189 (upholding conviction under 602(j) where defendant was,
among other things, blocking access while seeking signatures
on an antipollution initiative); Medrano, 144 Cal. Rptr. at
224-25 (discussing balancing of free speech demands by out-
siders or physical access to audiences within private prop-
erty); Hamburg v. Wal-Mart Stores, Inc., 10 Cal. Rptr. 3d 568
(Cal. Ct. App. 2004) (finding question of fact as to whether
protesters were intentionally interfering with a business for
10
See Agnello, 66 Cal. Rptr. at 574 (“The word ‘interfere’. . . imports
to ‘disarrange,’ ‘disturb,’ or ‘hinder.’ ”).
5210 BLANKENHORN v. CITY OF ORANGE
actions in picketing and collecting signatures for a voter ini-
tiative at business premises).

[9] Even if a trespassing conviction ultimately might have
been difficult, there was no clearly established law indicating
that Blankenhorn could not have been trespassing under pres-
ent circumstances. Accordingly, even if there were no proba-
ble cause (or there were a triable question of fact), the
Defendants would still be entitled to qualified immunity. The
“contours” of Blankenhorn’s Fourth Amendment right to be
free of unreasonable seizures were not clearly established so
as to encompass the trespassing charges at issue under present
circumstances. See Saucier, 533 U.S. at 201.

2. Excessive Force.

Blankenhorn claims the arresting officers used excessive
force in violation of his Fourth Amendment rights. Defen-
dants claim qualified immunity from this cause of action.

Although we hold that Defendants were entitled to sum-
mary judgment as to Blankenhorn’s unlawful arrest claim, we
are still required to determine whether, under the circum-
stances, the arresting officers used an unreasonable amount of
force when taking Blankenhorn into custody. See Beier, 354
F.3d at 1064 (“Because 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.”); see also Arpin, 261 F.3d at 921-22
(use of force may be reasonable even in the absence of proba-
ble cause).

a. Violation of Blankenhorn’s Constitutional Rights.

[10] The Fourth Amendment requires police officers mak-
ing an arrest to use only an amount of force that is objectively
reasonable in light of the circumstances facing them. Tennes-
see v. Garner, 471 U.S. 1, 7-8 (1985). Neither tackling nor
 BLANKENHORN v. CITY OF ORANGE 5211
punching a suspect to make an arrest necessarily constitutes
excessive force. Graham v. Connor, 490 U.S. 386, 396 (1989)
(“ ‘Not every push or shove, even if it may seem unnecessary
in the peace of the judge’s chambers,’ . . . violates the Fourth
Amendment”) (quoting Johnson v. Glick, 481 F.2d 1028,
1033 (2d Cir. 1973)). But “even where some force is justified,
the amount actually used may be excessive.” Santos v. Gates,
287 F.3d 846, 853 (9th Cir. 2002). The question in all cases
is whether the use of force was “objectively reasonable in
light of the facts and circumstances confronting” the arresting
officers. Graham, 490 U.S. at 397 (internal quotation marks
omitted).

To determine whether a specific use of force was reason-
able, we must balance “the nature and quality of the intrusion
on the individual’s Fourth Amendment interests against the
countervailing government interests at stake.” Id. at 396
(internal quotation marks omitted). Relevant factors to this
inquiry include, but are not limited to, “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.” Id.; see also Forrester v. City of San Diego, 25 F.3d
804, 806 n.2 (9th Cir. 1994). When appropriate, our reason-
ableness determination must also make “allowance for the
fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary
in a particular situation.” Graham, 490 U.S. at 396-97.

The parties dispute some facts necessary to decide the issue
of qualified immunity on excessive force. For example,
Defendants allege that Blankenhorn yelled out before his
arrest that he was a member of the 18th Street Gang, but
Blankenhorn denies this. Also, Nguyen claims that Blanken-
horn resisted being handcuffed by pinning his arms beneath
his body. Blankenhorn denies he did this or that he in any
other way resisted being handcuffed. Where such disputes
5212 BLANKENHORN v. CITY OF ORANGE
exist, summary judgment is appropriate only if Defendants
are entitled to qualified immunity on the facts as alleged by
the non-moving party. Barlow v. Ground, 943 F.2d 1132,
1136 (9th Cir. 1991). We must therefore make our excessive
force determination by viewing the disputed facts in favor of
Blankenhorn.

Six months before the arrest, mall security issued Blanken-
horn a Notice Forbidding Trespass. Three weeks before the
arrest, Officer Ross stopped Blankenhorn after spotting him
near the scene of an alleged gang fight at The Block.
Throughout the stop, Blankenhorn remained calm, and, when
asked, willingly provided Ross with information about the
gang fight. The night of his arrest, Blankenhorn was sus-
pected of having committed a misdemeanor trespass. When
Nguyen and Gray stopped him, he was talking with an adult
friend and was accompanied by two young boys. Nguyen
asked Blankenhorn what he was doing at the mall, and
Blankenhorn responded that he was talking with some friends.
At some point, Nguyen grabbed his arm and, when Blanken-
horn pulled free, threatened to spray him with mace. Blanken-
horn threw his driver’s license on the ground, but he did not
take a combative stance, clench his fists, or otherwise make
threatening gestures. When Nguyen asked him to kneel down
so he could be handcuffed, Blankenhorn refused. Almost
immediately, Nguyen, Ross, and South gang-tackled him.
Nguyen did not try to handcuff Blankenhorn before the three
officers tackled him. Blankenhorn struggled for several
moments before the officers brought him to the ground. Once
on the ground, however, Blankenhorn did not attempt to pre-
vent the officers from handcuffing him. Even so, Nguyen
punched him several times, and an officer or officers pushed
his face into the pavement by shoving a knee into the back of
his neck. Once Blankenhorn was subdued, the officers placed
hobble restraints on his ankles, which made it difficult for
Blankenhorn to move and breathe.

If Blankenhorn can prove the events as set forth above,
some or all of the Defendants would probably be liable for
 BLANKENHORN v. CITY OF ORANGE 5213
excessive force, both in their “gang tackling,” use of hobble
restraints, and in Nguyen’s punching of Blankenhorn. That is,
there are genuine issues of material fact.

(1) Gang Tackle.

[11] A rational jury could find that the use of a gang tackle
by Nguyen, Ross, and South under these circumstances was
unreasonable. First, the severity of the alleged crime, misde-
meanor trespass, was minimal, when the only bases for sus-
pecting that Blankenhorn was interfering with mall business
were his presence at the mall, his previous banishment, his
known gang association, and the attention by security that his
presence required. Second, a rational jury could conclude
from Blankenhorn’s cooperative behavior with Ross just three
weeks before his arrest, the fact that Nguyen and Gray discov-
ered him talking casually with a friend, and the video footage
of Blankenhorn’s behavior during the detention, that Blanken-
horn did not pose a serious threat to the officers’ or others’
safety. The officers’ conduct during Blankenhorn’s detention
as captured on the video — e.g., Nguyen’s standing for long
periods of time with his arms folded, South’s permitting Gar-
cia to speak with Blankenhorn, the officers’ failure to prevent
other mall patrons from walking within a few feet of the scene
— could reasonably support this conclusion. Furthermore, the
pace of events could reasonably lead to the conclusion that the
latitude Graham requires for split-second police judgments in
“tense, uncertain, or rapidly evolving” situations was not war-
ranted here. See Graham, 490 U.S. at 397. Finally, though
Blankenhorn verbally refused to comply with Nguyen’s
request to kneel down, a reasonable jury could conclude from
his testimony and the video that Nguyen never tried to hand-
cuff Blankenhorn, and Blankenhorn did not actively resist
being handcuffed, before Nguyen, Ross, and South gang-
tackled him.

[12] Because a rational jury — drawing all reasonable
inferences from the facts alleged — could conclude the gang
5214 BLANKENHORN v. CITY OF ORANGE
tackle was unreasonable under the circumstances, under Sau-
cier, the officers’ conduct violated Blankenhorn’s Fourth
Amendment rights.

(2) Hobble Restraints.

The video of Blankenhorn’s arrest shows that Blankenhorn
did not initially submit to the officers’ attempts to arrest him.
Rather, he struggled with them for several seconds before
being tackled to the ground, where the officers eventually
gained control over him. Defendants argue that Blankenhorn’s
resistance could have led a prudent officer to conclude that he
might pose an increased risk of danger to others and that the
use of hobble restraints was therefore justified as a matter of
law. We disagree.

[13] In assessing the reasonableness of the defendant offi-
cers’ use of hobble restraints after taking custody of Blanken-
horn, we must balance competing concerns. On the one hand,
the Fourth Amendment permits police officers to use some
force to overcome resistance to being arrested. See Graham,
490 U.S. at 396. We agree with our sister circuit that, in some
situations, the need to maintain control of a person who physi-
cally struggled while being taken into custody might reason-
ably call for the use of hobble restraints. See, e.g., Mayard v.
Hopwood, 105 F.3d 1226, 1227-28 (8th Cir. 1997). On the
other hand, a person has the “limited right to offer reasonable
resistance to an arrest that is the product of an officer’s per-
sonal frolic. That right is not triggered by the absence of prob-
able cause, but rather by the officer’s bad faith or provocative
conduct.” United States v. Span, 970 F.2d 573, 580 (9th Cir.
1992) (citation omitted); see also Arpin, 261 F.3d at 921.
Thus, we must ask whether a reasonable jury could conclude,
viewing the evidence in the light most favorable to Blanken-
horn, that the Defendant officers acted in bad faith or engaged
in “provocative” conduct when arresting him. If so, and
Blankenhorn’s resistance was reasonable, a constitutional vio-
lation occurred.
 BLANKENHORN v. CITY OF ORANGE 5215
[14] Span supports the conclusion that the officers acted in
bad faith. Span held that it was not reversible error in a trial
for assault on a federal officer under 18 U.S.C. § 111 to
instruct the jury that a United States Marshal “who is . . . try-
ing to arrest a person is engaged in his official duties.” Span,
970 F.2d at 580-81. Span claimed this instruction foreclosed
her defense that she had the right to resist the use of excessive
force because it was essentially a directed verdict on the issue
of good faith. Id. at 581. There was no error, and Span’s
defense was not foreclosed, because “[a]n officer who uses
excessive force is not acting in good faith.” Id. Under Span,
then, our earlier holding that a reasonable jury could find the
defendant arresting officers used excessive force in gang-
tackling Blankenhorn precludes a finding as a matter of law
that those same officers acted in good faith.

[15] We also conclude that the officers’ precipitate actions
in making the arrest could reasonably be considered “provoc-
ative.” According to Blankenhorn, the arresting officers gave
no warning that they were going to arrest him before gang-
tackling him and later applying hobble restraints. Indeed, as
the video shows, Nguyen did not even attempt to handcuff
Blankenhorn before he, Ross, and South — as if by predeter-
mined signal — simultaneously took hold of and wrestled him
to the ground. The lack of forewarning, the swiftness, and the
violence with which the defendant officers threw themselves
upon Blankenhorn could reasonably be considered “provoca-
tive,” triggering Blankenhorn’s limited right to reasonable
resistance and thus making their later use of the hobble
restraints unreasonable.

As for whether Blankenhorn’s resistance was itself reason-
able under the circumstances, the video appears to show that
he tried to stay on his feet while three officers wrestled with
him and, in Nguyen’s case, punched him several times.
Defendants do not allege, and the video does not show, that
Blankenhorn struck out at any of the officers or mall patrons.
Considering the rapidity of the officers’ actions and the
5216 BLANKENHORN v. CITY OF ORANGE
restrained nature of Blankenhorn’s own response, a jury could
conclude Blankenhorn’s resistance was reasonable under the
circumstances.

[16] Since a reasonable jury could conclude that Nguyen,
Ross, and South acted in a provocative manner and in bad
faith, and that Blankenhorn’s resistance was reasonable under
the circumstances, the arresting officers are not entitled to
summary judgment on Blankenhorn’s claim that the use of
hobble restraints was excessive under the circumstances.

(3) Punches.

Although Blankenhorn initially resisted being arrested,
Nguyen’s punches were not necessarily a reasonable
response. 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.’ ” Liston
v. County of Riverside, 120 F.3d 965, 976 (9th Cir. 1997)
(quoting Alexander v. City & County of San Francisco, 29
F.3d 1355, 1367 (9th Cir. 1994)); see also Headwaters Forest
Def. v. County of Humboldt, 276 F.3d 1125, 1130 (9th Cir.
2002) (“Because the officers had control over the protesters[,]
it would have been clear to any reasonable officer that it was
unnecessary to use pepper spray to bring them under con-
trol[.]”).

[17] At the preliminary hearing, Nguyen said he punched
Blankenhorn several times during the arrest because he “was
trying to get Mr. Blankenhorn’s arms out from underneath
him and secure the handcuffs.” Nguyen further testified that
such punches are “utilized at times to distract an individual so
that his muscles relax momentarily and then you are able to
take control.” But Blankenhorn claims he never pinned his
arms underneath his body. (The video does not clearly show
whether he did so or not.) Crediting Blankenhorn’s version of
the events, as we must at a summary-judgment stage, we con-
 BLANKENHORN v. CITY OF ORANGE 5217
clude that a rational jury could find that if Blankenhorn did
not maneuver his arms beneath his body it eliminated the need
for any use of force to release them, and thus that Nguyen’s
punches were not reasonably justified by the circumstances as
he claims.11

b. The Federal Rights Were Clearly Established.

“[I]f a violation could be made out on a favorable view of
the parties’ submissions, the next, sequential step is to ask
whether the right was clearly established” at the time of the
arrest. Saucier, 533 U.S. at 201. Saucier’s requirement that
the plaintiff’s asserted right be clearly established “does not
mean that the very action at issue must have been held unlaw-
ful before qualified immunity is shed.” Wall v. County of
Orange, 364 F.3d 1107, 1111 (9th Cir. 2004). On the con-
trary, police officers “can still be on notice that their conduct
violates established law even in novel factual circumstances.”
Hope v. Pelzer, 536 U.S. 730, 741 (2002). While no prior
Supreme Court or circuit case presents facts that are “funda-
mentally similar” or “materially similar” to those presented
here, the salient question is still whether, at the time of the
encounter with Blankenhorn, “the state of the law . . . gave
[defendants] fair warning that their alleged treatment of [him]
was unconstitutional.” Id.; see also Boyd v. Benton County,
374 F.3d 773, 781 (9th Cir. 2004) (“In excessive force cases,
the inquiry remains whether, ‘under the circumstances, a rea-
sonable officer would have had fair notice that the force
employed was unlawful, and [whether] any mistake to the
contrary would have been unreasonable.’ ”) (alteration in
11
Cf. Arpin, 261 F.3d at 921-22 (affirming grant of summary judgment
for officer on claim of excessive force in making arrest without probable
cause where the officer warned plaintiff, who was denied access to a city
bus when she failed to provide proper identification, that she would be
arrested if she did not cooperate by showing her transit identification; the
plaintiff refused; when officer attempted to make the arrest, plaintiff stiff-
ened her arms and pulled free from the his grasp; and the officer twisted
plaintiff’s arm behind her and applied handcuffs).
5218 BLANKENHORN v. CITY OF ORANGE
original) (quoting Drummond v. City of Anaheim, 343 F.3d
1052, 1060 (9th Cir. 2003)).

[18] In assessing the state of the law at the time of Blanken-
horn’s arrest, we need look no further than Graham’s holding
that force is only justified when there is a need for force. We
conclude that this clear principle would have put a prudent
officer on notice that gang-tackling without first attempting a
less violent means of arresting a relatively calm trespass sus-
pect — especially one who had been cooperative in the past
and was at the moment not actively resisting arrest — was a
violation of that person’s Fourth Amendment rights. This
same principle would also adequately put a reasonable officer
on notice that punching Blankenhorn to free his arms when,
in fact, he was not manipulating his arms in an attempt to
avoid being handcuffed, was also a Fourth Amendment viola-
tion. Finally, we hold that no reasonable officer would have
believed that hobble restraints on his wrists and ankles, in
addition to handcuffs, were necessary to maintain control of
him and prevent possible danger to passersby.

[19] Therefore, we conclude that the state of the law was
“clearly established” at the time of Blankenhorn’s arrest and
gave the arresting officers sufficiently fair notice that their
conduct could have been unconstitutional. Accordingly, Gray,
Nguyen, Ross, and South are not entitled to qualified immu-
nity as to the gang tackle and punches used while taking
Blankenhorn into custody. Gray, Nguyen, Ross, South and
Kayano are not entitled to qualified immunity as to the use of
hobble restraints.12
12
Defendants argue that, because Blankenhorn offered no evidence that
Montano and Roman had physical contact with him, summary judgment
for them was proper. Defendants also argue that, though Kayano helped
handcuff Blankenhorn, summary judgment for him was proper because
Blankenhorn did not allege he used excessive force in doing so.
An officer’s liability under section 1983 is predicated on his “integral
participation” in the alleged violation. Chuman v. Wright, 76 F.3d 292,
 BLANKENHORN v. CITY OF ORANGE 5219
3. Malicious Prosecution.

[20] Blankenhorn seeks damages for the three months he
spent incarcerated after the district attorney filed charges
against him. A police officer who maliciously or recklessly
makes false reports to the prosecutor may be held liable for
damages incurred as a proximate result of those reports. See
Barlow, 943 F.2d at 1136-37; see also Galbraith v. County of
Santa Clara, 307 F.3d 1119, 1126-27 (9th Cir. 2002) (finding

294-95 (9th Cir. 1996). “ ‘[I]ntegral participation’ does not require that
each officer’s actions themselves rise to the level of a constitutional viola-
tion.” Boyd, 374 F.3d at 780. But it does require some fundamental
involvement in the conduct that allegedly caused the violation. See id.
(holding that every officer who provided armed backup for another officer
who unconstitutionally deployed a flash-bang device to gain entry to a
suspect’s home could be held liable for that use of excessive force because
“every officer participated in some meaningful way” in the arrest and
“every officer was aware of the decision to use the flash-bang, did not
object to it, and participated in the search operation knowing the flash-
bang was to be deployed”).
Roman, who arrived on the scene after the arrest was completed, and
Montano, who at most provided crowd control, did not participate in any
integral way in the arrest. Therefore, summary judgment in their favor was
properly granted.
Kayano’s help in handcuffing the prone Blankenhorn was, of course,
meaningful participation in the arrest. It is true that Blankenhorn does not
claim Kayano used excessive force in handcuffing him, and Ross, not
Kayano, placed the ripp-hobbles on Blankenhorn’s wrists and ankles. But
Kayano’s own declaration indicates that his help in handcuffing Blanken-
horn was instrumental in the officers’ gaining control of Blankenhorn,
which culminated in Ross’s application of hobble restraints. Therefore,
Kayano’s participation was integral to the use of the hobble restraints. See
id.
It follows that Gray, who ordered Ross to use the hobble restraints, and
Nguyen and South, who tackled Blankenhorn, also participated in an inte-
gral way in the application of the hobble restraints.
Accordingly, Gray, Nguyen, Ross, South, and Kayano may be held lia-
ble for this particular alleged use of excessive force. See Chuman, 76 F.3d
at 294-95.
5220 BLANKENHORN v. CITY OF ORANGE
that a coroner who “deliberately lied about the autopsy in the
autopsy report” could be held liable under § 1983).

Defendants claim that Nguyen, Ross, and South are entitled
to immunity from damages for malicious prosecution under
Smiddy v. Varney, 665 F.2d 261 (9th Cir. 1981). Smiddy held
that, “where police officers do not act maliciously or with
reckless disregard for the rights of an arrested person, they are
not liable for damages suffered by the arrested person after a
district attorney files charges unless the presumption of inde-
pendent judgment by the district attorney is rebutted.” Id. at
267. This presumption may be rebutted by showing, for
example, that the prosecutor “was pressured or caused by the
investigating officers to act contrary to his independent judg-
ment” or that the investigating officers presented the prosecu-
tor with “information known by them to be false.” Id. at 266-
67.

To overcome the presumption, Blankenhorn alleges that
Nguyen provided false information in his report by not dis-
closing that he punched Blankenhorn; that Balleste charged
him with two counts of resisting arrest based on Nguyen’s and
Ross’s false statements that he took a combative stance and
clenched his fists before being taken into custody; and that
Balleste added the gang-enhancement charges against him on
the basis of South’s false statement that he identified himself
as a gang-member.

[21] Blankenhorn’s allegations do not support a finding that
Gray, Montano, Kayano, Roman, and Romero were integrally
involved in providing false statements to the prosecutor and
thus in his allegedly malicious prosecution. See Chuman, 76
F.3d at 294-95. Therefore, we hold that the grant of summary
judgment on this claim in favor of those defendants was
proper.

The district court granted summary judgment for Nguyen
on Blankenhorn’s first contention because Nguyen’s omission
 BLANKENHORN v. CITY OF ORANGE 5221
was not material to the charges. As to Blankenhorn’s second
claim, the district court held, citing Sloman v. Tadlock, 21
F.3d 1462 (9th Cir. 1994), that inconsistencies between
South’s and Blankenhorn’s versions of events was insufficient
to rebut the presumption of prosecutorial independence. The
district court did not address Blankenhorn’s third allegation.

[22] The district court’s resolution of Nguyen’s failure to
include the punches in his report was correct as to trespassing.
Even if Nguyen purposely omitted mentioning that he
punched Blankenhorn, that information was not legally rele-
vant to whether there was probable cause to charge Blanken-
horn with trespass. Consequently, Nguyen’s omissions —
though influential on Balleste’s tactical decision to drop the
charges — were not themselves the basis upon which the
charges were made. Because this evidence, even if true, does
not overcome the presumption of prosecutorial independence,
see Smiddy, 665 F.2d at 266-67, we affirm summary judgment
for Nguyen on this claim as to trespassing.

However, the district court’s holding with regard to
Blankenhorn’s malicious prosecution claim against South was
improper because the district court’s reliance on Sloman was
misplaced. Sloman held that “conclusory allegations [of false-
hood], standing alone, are insufficient to prevent summary
judgment” against a claim of malicious prosecution on the
ground of independent prosecutorial judgment. Sloman, 21
F.3d at 1474. The key fact in Sloman was that the plaintiff
“did not . . . point to any evidence of . . . fabrication, other
than the fact that the officers’ reports were inconsistent with
[his] own account of the incidents leading to his arrest.” Id.
Blankenhorn, however, provided more than conclusory alle-
gations of the falsehood of South’s statement. Specifically, he
supported his motion in opposition with Garcia’s declaration
that he “never heard Gary say or yell out that he was an 18th
Street gang member.” While Deputy D.A. Balleste may have
relied at least in part on the fact that Blankenhorn “was a
known 18th Street Gang member” in deciding to file the
5222 BLANKENHORN v. CITY OF ORANGE
gang-enhancement charges, Balleste stated that she relied on
South’s (potentially false) statement when the charges were
filed. (Blankenhorn’s later deposition testimony where he told
police he was, or had been, a gang member was obviously not
part of the charging decision.) Defendants did not provide any
additional evidence to prove that Balleste’s independent judg-
ment was an intervening cause of Blankenhorn’s gang-related
prosecution. Blankenhorn thus provided sufficient evidence to
survive Sloman and, in so doing, to rebut the presumption of
prosecutorial independence. Therefore, we reverse the grant
of summary judgment on this cause of action against South.
An issue of fact remains. See Smiddy, 665 F.2d at 267.

Blankenhorn also claims false statements in the arrest
reports filed by Ross and Nguyen led to his three resisting-
arrest charges. Before filing the charges, Balleste did not look
at the video, relying instead on Ross’s and Nguyen’s police
reports, both of which state that Blankenhorn took a combat-
ive stance and clenched his fists. Thus, the information in
those reports was the only basis for the resisting-arrest
charges. Again, Blankenhorn submitted more than mere con-
clusory allegations of falsehood by submitting the declaration
of a witness, Garcia, that directly contradicted the police
reports. A reasonable jury drawing all justifiable inferences
from the video and witness statements in Blankenhorn’s favor
could conclude that Blankenhorn did not act as Nguyen and
Ross alleged and, thus, that the reports included intentionally
false information. If so, Blankenhorn would overcome the
presumption of prosecutorial independence. See Borunda v.
Richmond, 885 F.2d 1384, 1390 (9th Cir. 1989) (plaintiff
overcame presumption where prosecutor had no information
but police reports and plaintiff presented evidence, in addition
to his own testimony, of false information in the reports); see
also Barlow, 943 F.2d at 1137 (discussing Borunda).

[23] Moreover, Nguyen’s purposeful omission that he
punched Blankenhorn is relevant to whether there was proba-
ble cause to charge him with resisting arrest. If the prosecutor
 BLANKENHORN v. CITY OF ORANGE 5223
knew Nguyen used excessive force, there would likely be lit-
tle or no basis for charging him with resisting arrest as was
done here.13 See People v. Olguin, 173 Cal. Rptr. 663, 667
(Cal. Ct. App. 1981) (“[I]t has long been established that a
police officer is not permitted to use unreasonable or exces-
sive force in making an otherwise lawful arrest, and if the
officer does use such force the arrestee may use reasonable
force to protect himself in accordance with the principles of
self-defense.”); People v. White, 161 Cal. Rptr. 541, 544 (Cal.
Ct. App. 1980) (“[I]f a defendant is charged with [resisting
arrest] and the arrest is [made with excessive force], a defen-
dant cannot be convicted of [resisting arrest].”).

[24] We therefore hold that Ross and Nguyen are not enti-
tled to summary judgment under Smiddy. Accordingly, we
reverse the district court’s grant of summary judgment for
Ross and Nguyen on this cause of action.

4. Municipal Liability.

[25] Blankenhorn seeks to hold the City liable for the
arresting officers’ alleged use of excessive force. The City
may be held liable under section 1983 if its deliberate policy
caused the constitutional violation alleged. See Monell v.
Dep’t of Social Services of New York, 436 U.S. 658, 694
(1978); see also Lee v. City of Los Angeles, 250 F.3d 668, 681
(9th Cir. 2001). Because the policy Blankenhorn complains of
is a failure to train, he must show that (1) he was deprived of
a constitutional right, (2) the City had a training policy that
“ ‘amounts to deliberate indifference to the [constitutional]
rights of the persons’ with whom [its police officers] are
13
Blankenhorn was charged with three counts of resisting arrest. It is
impossible to discern from the record if any of these counts stem from his
actions before excessive force may have been used on him. Because this
case is on summary judgment, all inferences must be drawn in his favor
and, consequently, his claim for malicious prosecution analyzed with
respect to all three.
5224 BLANKENHORN v. CITY OF ORANGE
likely to come into contact”; and (3) his constitutional injury
would have been avoided had the City properly trained those
officers. See Lee, 250 F.3d at 681 (quoting City of Canton v.
Harris, 489 U.S. 378, 388-89 (1989)).

[26] The evidence Blankenhorn proffered to establish the
City’s policy of failing to train its officers in the use of exces-
sive force focused exclusively on Officer Nguyen. This
included performance evaluations and internal affairs inter-
views regarding Blankenhorn’s arrest as well as prior com-
plaints against Nguyen for excessive force.

[27] However, evidence of the failure to train a single offi-
cer is insufficient to establish a municipality’s deliberate pol-
icy. In Alexander we held that an executor seeking to hold a
municipality liable for the testator’s shooting death during a
police raid of his home could not establish as a matter of law,
solely on evidence of the municipality’s failure to train only
one officer, that the municipality had made the “deliberate” or
“conscious” choice required under Canton. See Alexander, 29
F.3d at 1367. We explained that, absent evidence of a
“program-wide inadequacy in training,” any shortfall in a sin-
gle officer’s training “can only be classified as negligence on
the part of the municipal defendant — a much lower standard
of fault than deliberate indifference.” Id. Because Blanken-
horn has limited his proof to the City’s failure to train only
Nguyen, he did not meet his burden to withstand Defendants’
motion for summary judgment. We therefore affirm this
aspect of the grant of summary judgment in the City’s favor.

5. Supervisorial Liability.

[28] Blankenhorn also seeks to hold Chief Romero liable
for Nguyen’s alleged use of excessive force in punching
Blankenhorn during the arrest. Chief Romero can be held lia-
ble in his individual capacity “ ‘for his own culpable action or
inaction in the training, supervision, or control of his subordi-
nates; for his acquiescence in the constitutional deprivation[;]
 BLANKENHORN v. CITY OF ORANGE 5225
or for conduct that showed a reckless or callous indifference
to the rights of others.’ ” Watkins v. City of Oakland, 145 F.3d
1087, 1093 (9th Cir. 1998) (quoting Larez v. City of Los
Angeles, 946 F.2d 630, 646 (9th Cir. 1991)). If Nguyen used
excessive force, Chief Romero’s liability as supervisor
depends upon whether he “ ‘set in motion a series of acts by
others, or knowingly refused to terminate a series of acts by
others, which he knew or reasonably should have known,
would cause others to inflict the constitutional injury.’ ” Id.
(quoting Larez, 946 F.2d at 646).

Blankenhorn presented evidence that Chief Romero
approved Nguyen’s personnel evaluations despite three com-
plaints of excessive force having been lodged against him. For
the first incident (shaking an arrestee by the hair), Nguyen
received a forty-hour suspension and was ordered to complete
a mandatory fitness-for-duty psychological evaluation. For
the second incident (ordering his dog to attack a child), which
occurred while Nguyen was off-duty, he also received a forty-
hour suspension. For the last one (allegedly pushing a woman
in the breast during an investigatory stop), Nguyen received
a departmental reprimand. Nguyen’s evaluations also include
several citizen commendations.

In addition to the approved evaluations, Blankenhorn pre-
sented expert testimony from Roger Clark (“Clark”), a former
sergeant and lieutenant with twenty-seven years of experience
in the Los Angeles County Sheriff’s Department. Clark’s
opinion was that the Department’s discipline of Nguyen in all
three matters was insufficient. Clark opined that discipline for
the first complaint “should have included a re-training compo-
nent and a period of monitoring to make this effective disci-
pline and for deterrence.” For the second, Clark said Nguyen
should have been fired. For the last complaint, Clark said that
the “imposition of a written reprimand was tantamount to no
discipline.”

In Larez, the Ninth Circuit held there was no plain error in
a jury verdict finding Los Angeles Chief of Police Daryl
5226 BLANKENHORN v. CITY OF ORANGE
Gates liable for his officers’ use of excessive force. See Larez,
946 F.2d at 646. Larez presented evidence that Gates person-
ally dismissed his excessive force complaint against the offi-
cers who searched Larez’s house. Id. at 635. He also
presented an expert witness who testified that Chief Gates
should have disciplined the officers and established new pro-
cedures to avoid future similar incidents. Id. at 636. The
expert further testified that, based on a two-year comparative
study he had conducted, Los Angeles police officers almost
never received discipline as a result of citizens complaints. Id.
Larez held that on this evidence the jury could have found
Chief Gates “condoned, ratified, and encouraged excessive
use of force” among the officers he supervised, and thereby
caused Larez’s constitutional violations. Id. at 646.

Watkins is similar. Watkins, who sought damages for inju-
ries caused by a police dog during his arrest on suspicion of
burglary, charged the officer who released the dog, Chew,
with use of excessive force and sought to hold Oakland Police
Chief Samuels liable as well. Watkins, 145 F.3d at 1093. Wat-
kins presented evidence that Samuels, without determining
whether ameliorative action was called for, signed an internal
affairs report dismissing Watkins’s complaint against Chew
despite evidence in the report of Chew’s excessive force dur-
ing Watkins’s arrest and in other dog bite incidents. Id. Wat-
kins also argued that Chief Samuels failed to establish new
procedures to avoid similar injuries “despite evidence of
numerous injuries to suspects apprehended by the use of
police dogs.” Id.

[29] While Chief Romero did not personally dismiss com-
plaints against Nguyen, as was the case in Larez and Watkins,
he did approve Nguyen’s personnel evaluations despite
repeated and serious complaints against him for use of exces-
sive force. That approval, together with the expert testimony
regarding the ineffectiveness of Nguyen’s discipline for those
complaints, could lead a rational factfinder to conclude that
Romero knowingly condoned and ratified actions by Nguyen
 BLANKENHORN v. CITY OF ORANGE 5227
that he reasonably should have known would cause constitu-
tional injuries like the ones Blankenhorn may have suffered.
Another genuine issue of material fact exists. Accordingly,
summary judgment for Chief Romero on this issue was improp-
er.14

B. Blankenhorn’s State Law Causes of Action.

Blankenhorn’s suit includes state law claims against Defen-
dants for false arrest/false imprisonment,15 assault and battery,
negligence, and intentional infliction of emotional distress.
The district court granted summary judgment for Defendants
on all these claims on grounds that Defendants were immune
under California law.

[30] Defendants claim that they enjoy statutory immunity
under California Penal Code section 847(b) from Blanken-
horn’s false arrest/false imprisonment claim. That statute pro-
vides that an officer cannot be held civilly liable for false
imprisonment where the officer, “acting within the scope of
his or her authority,” made a “lawful” arrest or “had reason-
able cause to believe the arrest was lawful.” CAL. PEN. CODE
§ 847(b); see also Galvin v. Hay, 374 F.3d 739, 758 (9th Cir.
2004). A California police officer is authorized by statute to
make a warrantless arrest on probable cause that a person has
14
If, on remand, Blankenhorn fails to establish a constitutional violation,
then the question of supervisorial liability would be moot. See City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986); Quintanilla v. City of Dow-
ney, 84 F.3d 353, 355 (9th Cir. 1996).
15
In California, false arrest is a species of the tort of false imprisonment.
Collins v. City & County of San Francisco, 123 Cal. Rptr. 525, 526 (Cal.
Ct. App. 1975) (“False arrest is but one way of committing a false impris-
onment.”). “False imprisonment is ‘the nonconsensual, intentional con-
finement of a person, without lawful privilege, for an appreciable length
of time, however short.’ ” George v. City of Long Beach, 973 F.2d 706,
710 (9th Cir. 1992) (quoting Molko v. Holy Spirit Ass’n for Unification of
World Christianity, 762 P.2d 46, 63 (Cal. 1988), cert. denied, 490 U.S.
1084 (1989)).
5228 BLANKENHORN v. CITY OF ORANGE
committed a “public offense” in the officer’s presence. CAL.
PEN. CODE § 836(a)(1). Trespass is a public offense. See CAL.
PEN. CODE §§ 15(2) & (3) (defining “public offense” as viola-
tion of the law for which a person may be, inter alia, impris-
oned or fined); § 602 (enumerating misdemeanor trespasses);
§ 19 (providing for punishment of imprisonment or fine for
misdemeanors). Because the arresting officers had probable
cause to believe Blankenhorn was trespassing at The Block
when he was arrested, we conclude that they were acting
within the scope of their authority under California law and,
therefore, that the arrest was lawful. See CAL. PEN. CODE
§ 836(a)(1); Atwater, 532 U.S. at 354. Accordingly, the offi-
cers are entitled to immunity from Blankenhorn’s state law
false imprisonment claim.

Defendants cite several other statutory provisions that, they
claim, provide immunity from Blankenhorn’s remaining state
law causes of action. However, none of these provisions sup-
ports their claim.

[31] First, Defendants’ argue that the arresting officers can-
not be held liable for Blankenhorn’s remaining state law
claims under California Government Code section 820.2.16
This provision of the California Tort Claims Act applies to
police officers’ discretionary decisions made during arrests.
See Price v. County of San Diego, 990 F. Supp. 1230, 1244
(S.D. Cal. 1998); Martinez v. County of Los Angeles, 54 Cal.
Rptr. 2d 772, 780 (Cal. Ct. App. 1996). But it has long been
established that this provision does not apply to officers who
use unreasonable force in making an arrest. See Scruggs v.
Haynes, 60 Cal. Rptr. 355, 360 (Cal. Ct. App. 1967) (“[A]
peace officer making an arrest is liable to the person arrested
16
Section 820.2 provides: “Except as otherwise provided by statute, a
public employee is not liable for an injury resulting from his act or omis-
sion where the act or omission was the result of the exercise of the discre-
tion vested in him, whether or not such discretion be abused.” CAL. GOV’T
CODE § 820.2
 BLANKENHORN v. CITY OF ORANGE 5229
for using unreasonable force.”); Robinson v. Solano County,
278 F.3d 1007, 1016 (9th Cir. 2002) (en banc) (“California
denies immunity to police officers who use excessive force in
arresting a suspect.”). Because Blankenhorn’s remaining state
law claims arise from the alleged use of force during his
arrest, and because Gray, Nguyen, Ross, South, and Kayano
are not entitled to summary judgment on Blankenhorn’s
unlawful force claim under § 1983, those officers are there-
fore not entitled to summary judgment on Blankenhorn’s
remaining state law claims on the ground that they are
immune from liability under section 820.2.17

[32] Second, Defendants claim that California Government
Code section 821.6 bars liability from Blankenhorn’s remain-
ing state law causes of action.18 The provision’s principal
function is to provide relief from malicious prosecution. See
Kayfetz v. California, 203 Cal. Rptr. 33, 36 (Cal. Ct. App.
1984). But the statute also “extends to actions taken in prepa-
ration for formal proceedings,” including actions “incidental
to the investigation of crimes.” Amylou R. v. County of River-
side, 34 Cal. Rptr. 2d 319, 321-22 (Cal. Ct. App. 1994). Even
so, section 821.6, as it applies to police conduct, is limited to
17
For the same reason, we reject the district court’s basis for granting
summary judgment in Defendants’s favor on Blankenhorn’s intentional
infliction of emotional distress claim. In their motion, Defendants claimed
they were entitled to summary judgment on this cause of action because
Blankenhorn could not prove as a matter of law that taking lawful custody
of him was an “outrageous” act, a required element of the tort. The district
court held that, since Blankenhorn did not oppose Defendants’ argument,
Defendants were entitled to judgment as a matter of law. However,
Blankenhorn also alleges that the officers’ use of excessive force against
him was outrageous conduct. Since we cannot rule at this stage of the liti-
gation that the arresting officers use of force was lawful, Blankenhorn’s
supposed failure to oppose Defendants’ argument is inconsequential. Sum-
mary judgment on this claim was improper.
18
Section 821.6 provides: “A public employee is not liable for injury
caused by his instituting or prosecuting any judicial or administrative pro-
ceeding within the scope of his employment, even if he acts maliciously
and without probable cause.” CAL. GOV’T CODE § 821.6.
5230 BLANKENHORN v. CITY OF ORANGE
actions taken in the course or as a consequence of an investi-
gation. See, e.g., Phillips v. City of Fairfield, 406 F. Supp. 2d
1101, 1118 (E.D. Cal. 2005). Here, the alleged tortious con-
duct occurred during an arrest, not an investigation. More-
over, this is not the sort of conduct to which section 821.6
immunity has been held to apply. See, e.g., Crowe v. County
of San Diego, 303 F. Supp. 2d 1050, 1120 (S.D. Cal. 2004)
(interrogations and strip searches conducted during the course
of a murder investigation); Baughman v. California, 45 Cal.
Rptr. 2d 82, 89 (Cal. Ct. App. 1995) (destroying computer
floppy disks during search pursuant to investigation of com-
puter equipment theft); Amylou R., 34 Cal. Rptr. 2d at 322
(taking rape and attempted murder victim against her will to
the crime scene and later telling neighbors that she was lying
about what happened). Because Blankenhorn’s assault and
battery, negligence, and intentional infliction of emotional
distress claims are based on acts that allegedly happened dur-
ing his arrest, not pursuant to an investigation into his guilt,
section 821.6 does not confer immunity from those claims
upon Defendants.

[33] Third, Defendants argue that the City, at least, is enti-
tled to immunity from liability under Government Code sec-
tion 815.2. That section provides: “A public entity is liable for
injury proximately caused by an act or omission of an
employee of the public entity within the scope of his employ-
ment if the act or omission would, apart from this section,
have given rise to a cause of action against that employee or
his personal representative.” CAL. GOV’T CODE § 815.2(a).
This provision clearly allows for vicarious liability of a public
entity when one of its police officers uses excessive force in
making an arrest. See Mary M. v. City of Los Angeles, 814
P.2d 1341, 1348 (Cal. 1991) (“[A] governmental entity can be
held vicariously liable when a police officer acting in the
course and scope of employment uses excessive force or
engages in assaultive conduct.”). Because the City does not
claim that the arresting officers were acting outside the scope
of their duties, and the arresting officers are not entitled to
 BLANKENHORN v. CITY OF ORANGE 5231
summary judgment on the use of unreasonable force, the City
is not entitled to immunity from liability under Government
Code section 815.2.

IV.

For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment for the City on Blankenhorn’s
municipal liability claim, and AFFIRM the grant of summary
judgment for Gray, Nguyen, Ross, and South on Blanken-
horn’s unlawful arrest claim. We REVERSE the grant of
summary judgment for Gray, Nguyen, Ross, South, and Kay-
ano on Blankenhorn’s excessive force claims; for Nguyen,
Ross, and South on his malicious prosecution claim; and for
Chief Romero on his supervisorial liability claim. We also
REVERSE the grant of summary judgment for Defendants
on all of Blankenhorn’s state law claims, except the false
arrest claim. We REMAND for further proceedings consis-
tent with this opinion.

The parties shall bear their own costs on appeal.

BERZON, Circuit Judge, concurring in part and dissenting in
part:

I am fully in accord with the majority opinion and join it,
except in one respect: I disagree with the majority’s holding
that there was probable cause to arrest Blankenhorn. I concur
rather than dissent on the false arrest issue, however, because
I believe that the arresting officers are qualifiedly immune
from liability for arresting Blankenhorn pursuant to California
Penal Code § 602(j). My remarks are styled a dissent only
because my conclusion with respect to probable cause
requires me to conclude that, on the subsequent question of
Blankenhorn’s state law claim for false arrest, the arresting
officers were not acting within the scope of their authority
5232 BLANKENHORN v. CITY OF ORANGE
under California law and thus do not enjoy statutory immu-
nity for their actions.

A. Probable Cause to Arrest

I cannot agree with the majority’s conclusion that the offi-
cers had probable cause to arrest Blankenhorn for trespassing
under both section 602(n) and section 602(j) of the California
Penal Code. In my view, there was probable cause under nei-
ther section.

First, the parties agree that there was no request to leave
sufficient to trigger section 602(n). They do not suggest that
the “Notice Forbidding Trespass” could serve as such a
request. And the parties are quite right: The language of the
statute explicitly requires a contemporaneous request for the
individual to leave and, when necessary, for the assistance of
a peace officer, not a notice issued weeks earlier. And, as the
record is clear that on the night of his arrest Blankenhorn was
never asked to leave the premises prior to his arrest nor did
The Block ever ask the officers to remove him, our probable
cause analysis should end there.

Instead, the majority asserts that the request to leave
required by section 602(n) need not be contemporaneous with
the arrest because the “on each occasion” language in the stat-
ute only applies to the property owner’s request to the peace
officer.1 The statute, however, plainly indicates otherwise:
1
At the time of Blankenhorn’s arrest, section 602(n) read in relevant
part:
Refusing or failing to leave land, real property, or structures
belonging to or lawfully occupied by another and not open to the
general public, upon being requested to leave by (1) a peace offi-
cer at the request of the owner, the owner’s agent, or the person
in lawful possession, and upon being informed by the peace offi-
cer that he or she is acting at the request of the owner, the
owner’s agent, or the person in lawful possession, or (2) the
 BLANKENHORN v. CITY OF ORANGE 5233
Section 602(n) prohibits an individual from “[r]efusing or
failing to leave land . . . upon being requested to leave.” CAL.
PENAL CODE § 602(n) (emphasis added). In this context,
“upon” denotes a temporal relationship between the refusal
and the request much more immediate than the five months
that passed between the “Notice Forbidding Trespass” and the
night in question. See WEBSTER’S NEW INTERNATIONAL DICTIO-
NARY OF THE ENGLISH LANGUAGE 2518 (3d ed., 1976) (defining
“upon” as “immediately following on : very soon thereafter”);
THE COMPACT OXFORD ENGLISH DICTIONARY 2199 (2d ed.,
1989) (defining “upon” as “[o]n the occasion of” and
“[i]mmediately after, following on”). Because Blankenhorn
was never asked to leave that evening, the officers lacked
probable cause to believe that section 602(n) had been violated.2

owner, the owner’s agent, or the person in lawful possession. The
owner, the owner’s agent, or the person in lawful possession shall
make a separate request to the peace officer on each occasion
when the peace officer’s assistance in dealing with a trespass is
requested. However, a single request for a peace officer’s assis-
tance may be made to cover a limited period of time not to
exceed 30 days and identified by specific dates, during which
there is a fire hazard or the owner, owner’s agent or person in
lawful possession is absent from the premises or property. In
addition, a single request for a peace officer’s assistance may be
made for a period not to exceed six months when the premises
or property is closed to the public and posted as being closed.
CAL. PENAL CODE § 602(n) (West 2001).
2
Even if the timing were different, the “Notice Forbidding Trespass”
hardly constituted a “request” to leave. Rather, it was essentially the
equivalent of a “No Trespassing” sign tailored specifically to Blanken-
horn, serving to take him out of the “public” to whom the property nor-
mally was open. The “request” requirement in section 602(n) indicates
that such a posting is not enough — there also must be a contemporaneous
request to leave the property before trespassing has occurred. Cf. CAL.
PENAL CODE §§ 602(I), (k) (barring only certain actions, but not simple
entry without a request to leave, “where signs forbidding trespass are dis-
played”).
5234 BLANKENHORN v. CITY OF ORANGE
Moreover, the majority improperly considers satisfied the
statutory requirement that the property owner make a “sepa-
rate request to the peace officer on each occasion when the
peace officer’s assistance in dealing with a trespass is request-
ed.” CAL. PENAL CODE § 602(n) (emphasis added). Although
the majority notes that “[d]efendants gave The Block a chance
to fulfill this requirement and that it was fulfilled,” this recita-
tion of the facts is misleading. In fact, The Block’s security
communicated the desire that the police assist in removing
Blankenhorn from the mall only after he was arrested. But the
statute plainly contemplates a request to the police officer
before, not after, an individual is requested to leave and then
arrested for failing to do so. Moreover, “[w]hether probable
cause exists depends upon the reasonable conclusion to be
drawn from the facts known to the arrest officer at the time
of arrest,” Devenpeck v. Alford, 543 U.S. 146, 152 (2004)
(emphasis added), so the post-arrest request cannot support a
finding of probable cause.

Additionally, a portion of section 602(n) not quoted by the
majority demonstrates why the “Notice Forbidding Trespass”
could not serve as the requisite request to the police officer.
After the language quoted in footnote 8, the statue continues:

However, a single request for a peace officer’s assis-
tance may be made to cover a limited period of time
not to exceed 30 days and identified by specific
dates, during which there is a fire hazard or the
owner, owner’s agent or person in lawful possession
is absent from the premises or property. In addition,
a single request for a peace officer’s assistance may
be made for a period not to exceed six months when
the premises or property is closed to the public and
posted as being closed.

CAL. PENAL CODE § 602(n) (emphasis added). Here, of course,
the “Notice Forbidding Trespass” was issued more than 30
days earlier, there was no fire hazard or absent owner, and the
 BLANKENHORN v. CITY OF ORANGE 5235
property, The Block mall, was open to the public, although
not to Blankenhorn.

The majority recognizes that “actually convicting
[Blankenhorn] under section 602(n) might have been diffi-
cult,” but asserts that a reasonable officer could nonetheless
have had probable cause to think that Blankenhorn violated
the statute. Probable cause, however, cannot be established by
misreading a statute. See United States v. Twilley, 222 F.3d
1092, 1096 (9th Cir. 2000) (“[I]n this circuit, a belief based
on a misunderstanding of the law cannot constitute the rea-
sonable suspicion required for a constitutional traffic stop.”);
see also United States v. Tibbetts, 396 F.3d 1132, 1138 (10th
Cir. 2005) (“[F]ailure to understand the law by the very per-
son charged with enforcing it is not objectively reasonable.”);
United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th
Cir. 2003) (holding that a mistake of law cannot provide the
“objectively reasonable grounds for reasonable suspicion or
probable cause”).

In sum, in the absence of a contemporaneous request to
Blankenhorn to leave The Block and the absence of a valid
request for police assistance, there is no factual basis for find-
ing probable cause.

Second, with respect to section 602(j), I cannot go along
with the majority’s conclusion that it was reasonable for the
officers to conclude that Blankenhorn intended to interfere
with, obstruct, or injure the lawful business of The Block. The
majority relies on a single fact to support such a finding: that
Blankenhorn had been banned from The Block a few months
earlier. The inference that one who enters on commercial
property where one is unwanted necessarily intends to inter-
fere with the business conducted there is too tenuous to sup-
port probable cause.

Indeed, California case law has read section 602(j) to
require much more tangible indices of intent on the part of the
5236 BLANKENHORN v. CITY OF ORANGE
alleged trespasser. In In re Ball, 100 Cal. Rptr. 189, 193 (Cal.
Ct. App. 1972), the defendant knew, because he had been told
so, that the activity he wanted to engage in would interfere
with Disneyland’s business. Moreover, he came on the prop-
erty to engage in the interfering activity, specifically to set up
a solicitation table in the path of a passenger tram. Id. at 192.
And interfere it did; the regular route of the passenger trams
had to be diverted. See id. (noting that “[a]s a result of peti-
tioner’s activities, . . . [the] supervisor of Disneyland security,
‘had to initiate action for the Tram to avoid the area by divert-
ing the Tram offloading to another area”). In re Ball inferred
intent from all these circumstances — “deliberately entering
the [Disneyland] parking lot and engaging in the conduct dis-
closed after having requested and been denied permission to
do so and from his refusal to leave when asked to do so.” Id.
at 193 (emphasis added).

Applying In re Ball here, it is relevant to his intent that
Blankenhorn was told not to return to The Block and did so
anyhow. But his being so told cannot be dispositive of the
question whether there is probable cause to believe that he
entered The Block with “the intention of interfering with,
obstructing, or injuring any lawful business” of The Block.
See CAL. PENAL CODE § 602(j). Unlike in In re Ball, where the
defendant came on to the property intending to set up a table
in the middle of the parking lot, the arresting officers had no
reason whatever to believe that Blankenhorn came onto the
mall property intending that any interference with the mall’s
business take place. If anything, the only reasonable inference
we can draw — because no facts to the contrary have been
presented — is that Blankenhorn came to The Block intend-
ing that he not act in a manner that would draw attention; pre-
sumably he did not want to be found out and ousted or
arrested.

As a result, I would hold that a prudent officer could not
have concluded that there was probable cause to arrest
Blankenhorn for violation of section 602(j), when all that was
 BLANKENHORN v. CITY OF ORANGE 5237
known at the time of arrest was (1) he had been told he was
not to return to The Block; and (2) he did so anyway.

B. Qualified Immunity

As discussed above, the parties agree that section 602(n)
did not apply, and I find that section’s language unambiguous
on both the need for a contemporaneous request to leave and
the need for a pre-arrest, contemporaneous request for police
assistance. Consequently, I would hold that qualified immu-
nity fails as to section 602(n).3

I do agree with the majority, however, that qualified immu-
nity precludes liability with respect to arrest pursuant to sec-
tion 602(j). That statute lacks the specificity of section 602(n).
As the majority notes, there is little pertinent California case
law construing section 602(j), and none that makes clear that
returning to property after having been permanently banned
from it could not constitute an intent to interfere with busi-
ness.

Further, as the majority explains, there is at least one theory
on which an officer could reasonably believe that such a
return demonstrates the requisite intent — that the security
officers at The Block would likely have spent time interacting
with Blankenhorn to get him to leave. Although I do not
believe that the likelihood that a security officer would have
to do what he is hired to do can support probable cause of an
intent to interfere with The Block’s business, there is no Cali-
fornia case law to the contrary. See Peng v. Mei Chin Penghu,
335 F.3d 970, 980 (9th Cir. 2003) (“Even absent probable
cause, qualified immunity is available if a reasonable police
officer could have believed that his or her conduct was lawful,
in light of the clearly established law . . . .”). I therefore con-
cur in the conclusion that there was qualified immunity with
3
The fact that the defendants concede the probable cause issue as to sec-
tion 602(n) further suggests that the question is not a close one.
5238 BLANKENHORN v. CITY OF ORANGE
regard to whether there was probable cause to arrest Blanken-
horn pursuant to section 602(j).

C. State Law False Arrest Claim

Finally, because I part ways with the majority with respect
to probable cause for arrest, it follows that I must dissent from
its conclusion that Blankenhorn’s state law claim for false
arrest is precluded by statutory immunity. In California, an
officer cannot be held civilly liable in these circumstances if
he or she, “acting within the scope of his or her authority,”
made a “lawful” arrest, or “had reasonable cause to believe
the arrest was lawful.” CAL. PENAL CODE § 847(b). Because I
would hold that the arrest was unlawful and, thus, not within
the scope of the officers’ authority, I also would find that the
officers could not claim immunity under section 847(b).
Because I agree with the majority that no provisions provide
immunity on the other state law claims, all of Blankenhorn’s
state law claims should be allowed to go forward.