NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 22 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGELIO REYES, No. 19-56144
Plaintiff-Appellant, D.C. No.
8:18-cv-01537-DOC-ADS
v.
CITY OF SANTA ANA; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted October 7, 2020
Pasadena, California
Before: M. SMITH and OWENS, Circuit Judges, and CARDONE, ** District Judge.
Appellant asks this court to reverse the district court’s entry of summary
judgment which disposed of his case. Appellant also requests that this court reverse
the district court’s denial of leave to amend his claim against Appellee City of Santa
Ana pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), which was
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
dismissed before the summary judgment stage. The parties are familiar with the
facts, so we do not recite them here, except as necessary to provide context to our
ruling. We have jurisdiction under 28 U.S.C. § 1291.
1. Initially, Appellant pleaded a Fourth Amendment illegal arrest claim against
Appellees Anh Tu Phan, Daniel Carrillo, David Guzman, Jonathon Perez, Justin
Collins, Kameron Henderson, Kenneth Gray, and Matthew Wharton (the Officers).
The district judge found that the Officers had qualified immunity from Appellant’s
unlawful arrest claim because their conduct in detaining him did not violate clearly
established law, and granted summary judgment for that reason. On appeal,
Appellant argues that the Officers lack qualified immunity from his unreasonable
arrest claim because they violated clearly established law in detaining him.
We start our analysis by setting out the relevant facts. On January 12, 2018,
the Officers investigated a Sprint cell phone store robbery in Santa Ana, California.
In so doing, the Officers identified Appellant as a suspect, then traveled to his
apartment. After the Officers arrived at Appellant’s home, they assembled near the
front door, which is fronted by an open and unobstructed outdoor walkway that the
public uses to pass through Appellant’s apartment complex. When the Officers were
ready to apprehend Appellant, one Officer knocked on Appellant’s front door. After
no one answered, the same Officer knocked again, and Appellant opened the door
shortly thereafter. The Officers asked Appellant to put his hands up and exit the
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residence. Appellant complied with both requests and stepped into his doorway. As
Appellant passed over the threshold of his apartment, one of the Officers grasped
Appellant’s hand, turned him around, clasped his hands behind his back, pulled him
out of the doorway, and handcuffed him.
The parties agree that, under the above facts, the Officers executed a doorway
exception arrest authorized by United States v. Vaneaton, 49 F.3d 1423 (9th Cir.
1995). But Appellant maintains that Vaneaton’s doorway exception was abrogated
by the limitations on police access to home curtilage set out in Florida v. Jardines,
569 U.S. 1 (2013). This reasoning fails. There is tension between Jardines and
Vaneaton. See United States v. Lundin, 817 F.3d 1151, 1160–61 (9th Cir. 2016).
However, these cases are distinguishable, as Jardines addressed police intrusions on
home curtilage, while Vaneaton involved officers making an arrest while standing
in motel common space that was open to the public. Id. Because Jardines and
Vaneaton are not “clearly irreconcilable,” the latter remains good law. See Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003). As such, the Officers did not violate
clearly established law of which a reasonable person would have been aware by
arresting Appellant in his doorway. See Martinez v. City of Clovis, 943 F.3d 1260,
1270 (9th Cir. 2019).
In the alternative, Appellant argues that the Officers’ conduct in arresting him
was at odds with United States v. Johnson, 626 F.2d 753 (9th Cir. 1980). We view
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Johnson as standing for the principle that police officers violate the Fourth
Amendment when, in making an arrest, they use deception to convince a suspect to
open a door to his home. See 626 F.2d at 757 (“Johnson opened the door of his
dwelling after the agents misrepresented their identities; thus, Johnson’s initial
exposure to the view and the physical control of the agents was not consensual on
his part.”). Johnson also explains that police officers violate the Fourth Amendment
when they show their weapons to secure consent to enter a suspect’s residence. See
id. (“Johnson’s invitation to the agents to enter after the door was opened was hardly
voluntary in light of the coercive effect of the weapons brandished by the agents.”).
Neither happened here. Appellant observed one or more of the Officers through his
peephole after an Officer knocked on his door, and the Officers did not pretend to
be anyone else. Also, Appellant did not actually see any firearms before opening
his door, or invite the Officers into his apartment. For these reasons, Johnson is
inapposite to Appellant’s case.
The Officers did not violate any clearly established law by arresting Appellant
as he passed through his doorway, and Johnson is irrelevant to this case. Therefore,
the Officers have qualified immunity from Appellant’s Fourth Amendment illegal
arrest claim. We accordingly AFFIRM summary judgment on that claim.
2. Appellant also pleaded a California false arrest claim against the Officers. In
response, the Officers claimed California Penal Code § 847(b)(1) immunity. The
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district judge granted summary judgment on Appellant’s California false arrest claim
because the Officers had probable cause to detain Appellant and qualified immunity
from Appellant’s Fourth Amendment unlawful arrest claim. However, “probable
cause is necessary but not by itself sufficient to establish an arrest’s lawfulness.”
George v. City of Long Beach, 973 F.2d 706, 710 (9th Cir. 1992). And California
Penal Code § 847(b)(1) does not incorporate federal qualified immunity concepts.
See Cornell v. City & Cnty. of S.F., 225 Cal. Rptr. 3d 356, 374 (Cal. Ct. App. 2017).
Because the district judge misapplied California law and there are genuine issues of
material fact regarding whether the Officers violated Appellant’s constitutional
rights when they arrested him, we REVERSE summary judgment on the California
false arrest claim and REMAND.
3. Beyond the above claims, Appellant pursued a Fourth Amendment excessive
force claim based on the Officers putting him in tight handcuffs. Tight handcuffing
can constitute a Fourth Amendment violation. See Wall v. Cnty. of Orange, 364 F.3d
1107, 1112 (9th Cir. 2004); LaLonde v. Cnty. of Riverside, 204 F.3d 947, 960 (9th
Cir. 2000); Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993); Hansen v.
Black, 885 F.2d 642, 645 (9th Cir. 1989). But, in these cases, the plaintiff suffered
more than nominal injuries from their handcuffs, or complained to police about tight
handcuffs, only to have their requests for loosening ignored. Summary judgment on
a tight handcuffing Fourth Amendment excessive force claim is merited if a plaintiff
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does not seek medical help or offer supporting documentary evidence. See Arpin v.
Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001).
In support of his tight handcuffing Fourth Amendment excessive force claim,
Appellant alleged that he sustained a “little bruise” that did not result in black skin
discoloration, indentations that lasted until the end of the day he was released from
jail, and about two days of soreness. These are nominal injuries for which Appellant
did not seek medical treatment. Cf. Wall, 364 F.3d at 1112 (plaintiff suffered a nerve
injury in his wrist); Palmer, 9 F.3d at 1436 (plaintiff had bruises that lasted for
weeks). Also, when Appellant protested that his handcuffs were tight and asked for
loosening, Appellee Henderson complied with this request. Since Appellant offers
no other evidence, we AFFIRM summary judgment on his tight handcuffing Fourth
Amendment excessive force claim.
4. Appellant supplemented the above allegations with a California battery claim.
See So v. Shin, 151 Cal. Rptr. 3d 257, 269 (Cal. Ct. App. 2013) (California battery
requires, among other things, that a “defendant touched plaintiff, or caused plaintiff
to be touched, with the intent to harm or offend plaintiff.”). But the reasonableness
standard applied to state law battery by a peace officer matches the reasonableness
standard used for Fourth Amendment excessive force claims. See Yount v. City of
Sacramento, 76 Cal. Rptr. 3d 787, 802 (2008) (California battery claims, like § 1983
claims, require evidence that the officer used unreasonable force). Since Appellant
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failed to prove that his handcuffing violated the Fourth Amendment’s proscription
on excessive force, we AFFIRM summary judgment on his California battery claim.
5. Appellant grounded a second Fourth Amendment excessive force claim in the
Officers aiming their guns at him as he opened his door. Pointing guns at a suspect
can be excessive force. See Espinosa v. City & Cnty. of S.F., 598 F.3d 528, 537 (9th
Cir. 2010); Tekle v. United States, 511 F.3d 839, 845–46 (9th Cir. 2007); Robinson
v. Solano Cnty., 278 F.3d 1007, 1015 (9th Cir. 2002) (en banc). Appellant pleaded
this gun pointing Fourth Amendment excessive force claim in his original and
amended complaints, and Appellees moved for summary judgment on it. Yet, the
district judge did not address gun pointing in granting Appellees summary judgment
on excessive force. The district judge then entered a final judgment on the merits,
which improperly terminated Appellant’s gun pointing Fourth Amendment
excessive force claim without consideration. “In general, an appellate court does
not decide issues that the trial court did not decide.” Planned Parenthood of Greater
Wash. and N. Idaho v. U.S. Dep’t of Health & Human Servs., 946 F.3d 1100, 1110
(9th Cir. 2020). As such, we REVERSE and REMAND to the district court to
decide in the first instance whether Appellant’s gun pointing Fourth Amendment
excessive force claim survives summary judgment.
6. The above reversal affects Appellant’s California assault and Civil Code
§ 52.1 claims. The district judge entered summary judgment on these state law
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claims because Appellant did not prevail on his Fourth Amendment excessive force
claim. However, the district judge never ruled on Appellant’s gun pointing Fourth
Amendment excessive force claim. This omission is key as California assault
concerns invasions of the right to be free from fear of personal harm, which could
be caused by pointing a gun in a threatening manner. See Plotnik v. Meihaus, 146
Cal. Rptr. 3d 585, 597 (Cal. Ct. App. 2012). California Civil Code § 52.1 addresses
violations of civil rights through intimidation or threats, which may include pointing
a gun at another person. See Reese v. Cnty. Of Sacramento, 888 F.3d 1030, 1040–
41 (9th Cir. 2018). Section 1983 qualified immunity is not dispositive of Civil Code
§ 52.1 claims. See id. Therefore, we REVERSE summary judgment on Appellant’s
California assault and Civil Code § 52.1 claims and REMAND.
7. Appellant also brought a Fourth Amendment illegal search of property claim
against the Officers on grounds that he was forced to consent to a post-arrest search
of his apartment. The fact that the Officers pointed guns at Appellant as he opened
his door does not invalidate Appellant’s later consent to the search of his home,
which was given to one Officer during an interaction that did not involve drawn
weapons. See United States v. Alfonso, 759 F.2d 728, 741 (9th Cir. 1985). Also, the
Officers did not tell Appellant that they would secure a search warrant absent his
consent. Under these circumstances, Appellant freely and voluntarily consented to
the Officers’ search of his residence. See United States v. Johnson, 875 F.3d 1265,
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1276–77 (9th Cir. 2017). Hence, we AFFIRM summary judgment on Appellant’s
Fourth Amendment unlawful search of property claim.
8. The district judge found that Appellant’s Fourth Amendment illegal property
search and California trespassing claims were entwined to the point where his ruling
on the former disposed of the latter. California trespassing requires “lack of
permission for the entry or acts in excess of permission” that was obtained from an
occupant. Ralphs Grocery Co. v. Victory Consultants, Inc., 225 Cal. Rptr. 3d 305,
317 (Cal. Ct. App. 2017). Appellant readily consented to the Officers’ search of his
apartment during an interaction with one Officer who did not brandish any weapons
or mention securing a search warrant. Since Appellant voluntarily gave the Officers
permission to enter and search his residence, we AFFIRM the district court’s entry
of summary judgment on his California trespassing claim.
9. Appellant also challenges the district court’s denial of leave to amend his
Monell claim against Appellee City of Santa Ana. A one-off incident cannot be the
basis of a Monell claim. See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996)
(“Liability for improper custom may not be predicated on isolated or sporadic
incidents.”). But a Monell claim filed by way of 42 U.S.C. § 1983 will withstand a
motion to dismiss “even if the claim is based on nothing more than a bare allegation
that the individual officers’ conduct conformed to official policy, custom, or
practice.” Lee v. City of L.A., 250 F.3d 668, 682–83 (9th Cir. 2001) (internal
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quotation marks and citation omitted).
In deposition testimony, Appellee Henderson advised that Santa Ana Police
Department officers routinely arrest individuals by employing the same procedure
used to detain Reyes. Appellee Henderson stated that he was trained to “pull up in
front of the house, . . . set up a perimeter, and call everybody out from the house.”
Also, when asked if the Santa Ana Police Department trains its officers to order
people out of homes at gunpoint, Appellee Carrillo responded as follows: “So yes, I
do believe that what we did at that time was the right thing to do to keep everybody
safe.” Under this court’s law on Monell pleading standards, Appellant should have
been afforded the opportunity to remedy any pleading defects specific to that claim
through amendment. See Ariz. Students’ Assn. v. Ariz. Bd. of Regents, 824 F.3d 858,
871 (9th Cir. 2016) (“Dismissal of a complaint without leave to amend is only proper
when, upon de novo review, it is clear that the complaint could not be saved by any
amendment.”). As a result, we REVERSE the district court’s denial of Appellant’s
request for leave to amend his Monell claim and REMAND.
For the foregoing reasons, summary judgment for Appellees is AFFIRMED
in part and REVERSED in part, and the denial of leave to amend is REVERSED.
We REMAND this case for further proceedings consistent with this memorandum.
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