FILED
NOT FOR PUBLICATION
JUN 29 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMI TILLOTSON, an individual, No. 17-15321
Plaintiff-Appellant, D.C. No. 4:15-cv-04014-DMR
v.
MEMORANDUM*
CITY OF SAN FRANCISCO, a municipal
corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Donna M. Ryu, Magistrate Judge, Presiding
Argued and Submitted June 12, 2018
San Francisco, California
Before: SCHROEDER, GOULD, and DIAZ,** Circuit Judges.
Plaintiff-Appellant Jami Tillotson, a deputy public defender in San
Francisco, appeals the District Court’s grant of summary judgment to the
Defendants-Appellees in her suit stemming from her arrest in the San Francisco
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Albert Diaz, United States Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
Hall of Justice. The Plaintiff sued officers and the City for unlawful arrest and
excessive force under 42 U.S.C. § 1983, negligence, assault and battery, intentional
infliction of emotional distress, 42 U.S.C. § 1985 conspiracy, municipal liability,
and a violation of California’s Bane Act, Cal. Civil Code § 52.1. Our appellate
jurisdiction rests on 28 U.S.C. § 1291, and we affirm.
The key events in this case are disclosed in multiple cell phone videos, and
the underlying facts are not materially disputed. The officers encountered in the
Hall of Justice two men whom they believed to be the perpetrators of a string of
San Francisco robberies, because their appearance and clothing matched that of the
suspects depicted in high resolution images taken from surveillance footage of the
most recent burglary. One of the men in the Hall of Justice appeared to be wearing
the same distinctive jacket worn by one of the suspects in the security footage. The
officers stopped the men in the hallway to take their photos in order to secure
identification evidence.
Plaintiff, who had represented one of the men in unrelated proceedings, saw
the photography underway and stepped between the officers and the suspects.
When one of the officers asked Plaintiff to step to the side in order to discuss the
situation, she stood in place and said, “[w]e don’t need any pictures taken, thank
you.” When informed that if she continued such conduct she would be arrested,
2
she responded, “Please do.” Plaintiff was arrested without force and escorted in
handcuffs to a holding cell in the basement of the courthouse.
Appellant argues that the police officers lacked probable cause to arrest her
for delaying or obstructing the investigation. Although she was apparently acting
in good faith, on this record there can be no serious question that the police (1)
were lawfully conducting a criminal investigation, and (2) had probable cause to
conclude that Plaintiff interfered with it.
Under California Penal Code § 148(a)(1), it is a misdemeanor to “willfully
resist[], delay[], or obstruct[] any . . . peace officer . . . in the discharge or attempt
to discharge any duty of his or her office or employment.” Probable cause exists
“when ‘under the totality of circumstances known to the arresting officers, a
prudent person would have concluded that there was a fair probability that [the
defendant] had committed a crime.’” United States v. Lopez, 482 F.3d 1067, 1072
(9th Cir. 2007) (alteration in original) (quoting United States v. Smith, 790 F.2d
789, 792 (9th Cir. 1986)).
Plaintiff in this case refused to step aside, thus giving the officers probable
cause to conclude that she was interfering with their lawful photographic
investigation. The officers could also reasonably conclude that Plaintiff’s
statements to them were intended to further her interference. There is thus no
3
merit to her claim that she was arrested on the basis of speech alone. See Young v.
Cty. of Los Angeles, 655 F.3d 1156, 1170 (9th Cir. 2011); In re Muhammed C., 116
Cal. Rptr. 2d 21, 24–25 (Ct. App. 2002).
Plaintiff’s excessive force claim is premised upon the theory that the initial
arrest was unlawful and accordingly that any force used to effectuate the arrest
violated the Fourth Amendment. But the initial arrest was lawful, and the record
does not reflect any unreasonable force. Plaintiff’s claim for intentional infliction
of emotional distress similarly fails because the officers’ arrest was based on
probable cause and was not carried out with excessive force.
Plaintiff’s claim under the Bane Act depends on whether the officers’
conduct violated Plaintiff’s Fourth Amendment rights, and for the reasons set forth
above, it did not. Absent any federal constitutional violation, or any claim of state
constitutional violation, there is no basis for a claim of liability under the Bane Act.
See Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir. 2013).
Finally, the District Court properly concluded that Plaintiff abandoned her
claims for § 1985 conspiracy, municipal liability, negligence, assault and battery,
and punitive damages by not addressing them in her motion for partial summary
judgment or her opposition to Defendants’ motion for summary judgment. See
Ramirez v. City of Buena Park, 560 F.3d 1012, 1026 (9th Cir. 2009).
AFFIRMED.
4