FILED
NOT FOR PUBLICATION
FEB 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMMANUEL ONYENWE, No. 13-57084
Plaintiff - Appellee, D.C. No. 5:12-cv-01363-MMM-
SP
v.
CITY OF CORONA, MEMORANDUM*
Defendant,
And
BLAIR MONTALBANO, Officer No:
002508; DAVID DOPSON, Officer,
Defendants - Appellants.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted February 3, 2016
Pasadena, California
Before: REINHARDT, PAEZ, and M. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Officers David Dopson and Blair Montalbano (“Defendants”) appeal the
district court’s denial of qualified immunity on Emmanuel Onyenwe’s claims of
false arrest and excessive force in violation of 42 U.S.C. § 1983. We affirm.
We affirm the district court’s denial of qualified immunity on Onyenwe’s
false arrest claim. To determine whether a police officer is entitled to qualified
immunity, we ask, “[t]aken in the light most favorable to the party asserting the
injury, do the facts alleged show the officer’s conduct violated a constitutional
right?” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson v.
Callahan, 555 U.S. 223 (2009). We also ask “whether the right was clearly
established,” meaning that “it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” Id. at 201–02. On
Onyenwe’s false arrest claim, he alleges that he was arrested for public
intoxication without probable cause after he picked up two friends from a bar.
Taking the evidence in the light most favorable to Onyenwe, he had no
communication with police or security guards prior to his arrest. He had not been
drinking and was not involved in any altercations. On these facts, Defendants
could not reasonably have believed that there was probable cause to arrest him for
public intoxication. See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1443 (9th Cir.
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1991). Thus, the district court did not err in determining that Defendants were not
entitled to qualified immunity at the summary judgment stage.
The district court also properly found that Defendants were not entitled to
qualified immunity on Onyenwe’s excessive force claim. To determine whether a
police officer’s use of force violates the Fourth Amendment, the court examines
“the facts and circumstances of each particular case, including 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.” Graham v. Connor, 490 U.S. 386, 396 (1989). Here, Onyenwe
was arrested for public intoxication, a minor crime. Onyenwe presented evidence
that Defendants slammed him against a car and kicked him, and that Onyenwe was
not resisting arrest when this occurred. Taking these facts as true for purposes of
determining whether Defendants are entitled to qualified immunity, it would have
been clear to a reasonable officer that the force applied was unlawful. See
Winterrowd v. Nelson, 480 F.3d 1181, 1184–85 (9th Cir. 2007). Accordingly, the
district court did not err in denying Defendants’ motion for summary judgment on
Onyenwe’s excessive force claim.
AFFIRMED.
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