FILED
NOT FOR PUBLICATION
NOV 29 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEE ARTHUR RICE, II, No. 15-35010
Plaintiff-Appellee, D.C. No. 1:13-cv-00441-BLW
v.
MEMORANDUM*
JANET MURAKAMI,
Defendant-Appellant,
and
DALE MOREHOUSE; et al.,
Defendants.
LEE ARTHUR RICE, II, No. 15-35019
Plaintiff-Appellee, D.C. No. 1:13-cv-00441-BLW
v.
JEFFREY A. HILL and MARK
ABERCROMBIE,
Defendants-Appellants,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and
JANET MURAKAMI; et al.,
Defendants.
LEE ARTHUR RICE, II, No. 15-35398
Plaintiff-Appellee, D.C. No. 1:13-cv-00441-BLW
v.
DALE MOREHOUSE,
Defendant-Appellant,
NICK SHAFFER,
Defendant-Appellant,
and
JANET MURAKAMI,
Defendant,
JOHN DOES, 1-20,
Defendant,
JEFFREY A. HILL; et al.,
Defendants.
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Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Argued and Submitted October 4, 2016
Portland, Oregon
Before: CLIFTON, MURGUIA, and NGUYEN, Circuit Judges.
Defendant law enforcement officers appeal the district court’s denial of their
motions for summary judgment on qualified immunity grounds in Plaintiff Lee
Arthur Rice, II’s 42 U.S.C. § 1983 action alleging excessive force. We have
jurisdiction under 28 U.S.C. § 1291. We reverse the denial of qualified immunity
as to Officer Janet Murakami and affirm the denial as to the other officers.
The denial of a motion for summary judgment based on qualified immunity
is reviewed de novo. Espinosa v. City & Cnty. of S.F., 598 F.3d 528, 532 (9th Cir.
2010). We view the facts and draw all inferences in the light most favorable to the
non-moving party to the extent supportable by the record. Scott v. Harris, 550
U.S. 372, 381 n.8 (2007). An officer is entitled to qualified immunity unless “it
would be clear to a reasonable officer that his conduct was unlawful in the situation
he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled in part on
other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009).
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Officer Murakami was entitled to summary judgment based on qualified
immunity. Rice does not allege that Murakami herself applied excessive force, but
rather that she knew or should have known that calling the Code 3 alert “would
likely cause others to use excessive force.” Rice provided no evidence and cited
no support to buttress that claim. Though it is true that a person may be held
responsible for the natural consequences of her actions, it is far from established
that an officer should have reasonably foreseen that other officers responding to a
call would use excessive force, acting in contravention of the Fourth Amendment
and the policies, procedures, and training provided them by their respective law
enforcement agencies.
The district court did not err in denying summary judgment on qualified
immunity grounds for the remaining officers, however, as there were genuine
disputes of material fact. There were conflicting versions of what happened that
night, and the video of the incident, including what the district court described as
“[t]he scrum,” was not so clear as to definitively resolve the conflict. It was clearly
established at the time of the incident that striking and kneeing a person being
arrested who was not physically resisting constituted excessive force. See, e.g.,
Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993); Hansen v. Black, 885
F.2d 642, 645 (9th Cir. 1989); see also Young v.Cnty. of Los Angeles, 655 F.3d
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1156, 1161-68 (9th Cir. 2011); Winterrowd v. Nelson, 480 F.3d 1181, 1186 (9th
Cir. 2007). Viewing the evidence in the light most favorable to Rice, a jury could
reasonably conclude that Rice was not physically resisting and that the officers
applied excessive force on him while he was lying on the ground. Defendants
argue that Rice's allegations were not sufficiently supported by evidence, but
“[a]ny decision by the district court that the parties’ evidence presents genuine
issues of material fact is categorically unreviewable on interlocutory appeal.”
George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013) (internal quotation marks
omitted). We affirm the denial of summary judgment as to the other officers.
Costs are to be taxed in favor of Defendant-Appellant Murakami in
No. 15-35010 and in favor of Plaintiff-Appellee in Nos. 15-35019 & 15-35398.
REVERSED (No. 15-35010); AFFIRMED (Nos. 15-35019 & 15-35398);
and REMANDED.
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