Richard Bernal v. City of Glendora ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD BERNAL, No. 22-55391
Plaintiff-Appellant, D.C. No.
2:21-cv-02459-RGK-AS
v.
CITY OF GLENDORA, a public entity; et MEMORANDUM*
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted March 13, 2023**
Pasadena, California
Before: LEE, BRESS, and MENDOZA, Circuit Judges.
This Section 1983 lawsuit arises out of an arrest after a 911 call reporting a
vehicle for reckless driving. Richard Bernal sued claiming that his arrest occurred
without probable cause and that an officer used excessive force against him in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
violation of the Fourth Amendment and Fourteenth Amendment. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s summary
judgment for the defendants.
1. The district court did not err in granting summary judgment on the unlawful
arrest claim. An arrest is lawful when it is supported by probable cause. See Ramirez
v. City of Buena Park, 560 F.3d 1012, 1023 (9th Cir. 2009). “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).
A reasonable officer would have probable cause to believe that Bernal was
driving under the influence of drugs or alcohol. See Ramirez, 560 F.3d at 1024.
When the officers stopped Bernal’s van after receiving the 911 call, they observed
that Bernal’s pupils were constricted, that his eyes were red and watery, that he had
an elevated heart rate, and that he spoke rapidly and without focus. In response to
these observations, an officer administered a “Romberg Test,” which is designed to
assess time distortions caused by substance use. Bernal failed this test—waiting
only seven seconds to indicate his perception that thirty seconds had passed. The
officer repeated the test, and Bernal once again failed. Based on this examination
and the officers’ observations, the officers placed Bernal under arrest on suspicion
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of driving under the influence of a controlled substance.
Bernal does not dispute that he exhibited the symptoms described by the
officers. And although he asserts that the arresting officer was inadequately trained,
he does not claim that the Romberg test was administered improperly or that the
officer inaccurately reported its results. Because there is no genuine dispute of
material fact that the officers observed signs that Bernal was intoxicated, the district
court did not err in determining that these facts could lead a reasonable officer to
find probable cause to arrest Bernal.
2. The district court did not err in granting summary judgment on the
excessive force claim. Bernal’s excessive force claim centers on his allegation that
an officer, when leading Bernal into the detention center, either kicked or struck him
in the back, causing him to fall to the ground. The allegation is flatly contradicted
by video surveillance of the detention facility’s entryway. The video does not show
the officer kicking or striking him. Rather, it appears that Bernal fell to the ground
as the officer, who put a resisting Bernal in a control hold, directed him to the
detention facility.
We thus review this claim “in the light depicted by the videotape,” Scott v.
Harris, 550 U.S. 372, 380–81 (2007), and conclude that any alleged force used by
the officer was not excessive. See Graham v. Connor, 490 U.S. 386, 396 (1989);
Acosta v. City of Costa Mesa, 718 F.3d 800, 826 (9th Cir. 2013); Forrester v. City
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of San Diego, 25 F.3d 804, 807 (9th Cir. 1994); Eberle v. City of Anaheim, 901 F.2d
814, 820 (9th Cir.1990).
3. The district court did not err in granting summary judgment on the state-
law claims. Because we hold that Hauck did not use excessive force against Bernal,
we affirm the district court’s grant of summary judgment on Bernal’s state-law
claims, which require either unreasonable force or outrageous conduct. See Venegas
v. County of Los Angeles, 63 Cal. Rptr. 3d 741, 755 (Ct. App. 2007); Edson v. City
of Anaheim, 74 Cal. Rptr. 2d 614, 616 (Ct. App. 1998); Davidson v. City of
Westminster, 649 P.2d 894, 901 (Cal. 1982).
4. The district court did not err in granting summary judgment for the city
defendants. Likewise, because we conclude that Bernal has not shown that any
unlawful conduct occurred, we affirm the district court’s grant of summary judgment
on Bernal’s derivative claims against the city defendants. See City of Los Angeles
v. Heller, 475 U.S. 796, 799 (1986); Cal. Gov’t Code § 815.2.
AFFIRMED.
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