Krystal Lopez v. City of Glendora

FILED
NOT FOR PUBLICATION
MAY 14 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRYSTAL LOPEZ, No. 19-55292
Plaintiff-Appellee, D.C. No.
2:17-cv-06843-ODW-RAO
v.
CITY OF GLENDORA; et al., MEMORANDUM*
Defendants-Appellants,
and
MATTHEW WENDLING; DOES, 1
through 10,
Defendants.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted May 1, 2020**
Pasadena, California
*
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).
Before: THOMAS, Chief Judge, and FERNANDEZ and W. FLETCHER, Circuit
Judges.
The City of Glendora, Lisa Rosales, and Raymond Kodadek1 filed this
interlocutory appeal2 from the district court’s partial denial of their motion for
summary judgment on qualified immunity grounds. Krystal Lopez alleged a
violation of her civil rights under 42 U.S.C. § 1983 and associated state law claims
arising from a traffic stop. Kodadek asserts he is entitled to qualified immunity on
Lopez’s claims that he attempted to conduct a pat-down search without reasonable
suspicion, used excessive force, and retaliated against her for protected speech.3
We affirm.
In determining if qualified immunity applies, “we consider (1) whether there
has been a violation of a constitutional right; and (2) whether that right was clearly
1
Although the City of Glendora and former police chief Rosales remain
parties to the appeal, all of the claims on appeal relate solely to Kodadek’s conduct
and not to any supervisor or municipal liability.
2
We have jurisdiction to review a denial of qualified immunity on
interlocutory appeal, limited to resolving “whether, after construing disputed facts
and reasonable inferences in favor of [the plaintiff], [the defendant] is entitled to
qualified immunity as a matter of law.” Thomas v. Dillard, 818 F.3d 864, 874 (9th
Cir. 2016).
3
Kodadek also challenges the district court’s denial of his evidentiary
objections to Lopez’s opposition to summary judgment. However, he failed to
adequately brief this issue and has therefore waived it. See Leer v. Murphy, 844
F.2d 628, 634 (9th Cir. 1988).
2
established at the time of the officer’s alleged misconduct.” Estate of Lopez ex rel.
Lopez v. Gelhaus, 871 F.3d 998, 1005 (9th Cir. 2017) (internal quotation marks
omitted). A constitutional right is clearly established at the time of the incident
only if “the right’s contours [are] sufficiently definite that any reasonable official
in the defendant’s shoes would have understood that he was violating it.” Kisela v.
Hughes, __ U.S. __, __, 138 S. Ct. 1148, 1153, 200 L. Ed. 2d 449 (2018) (per
curiam) (internal quotation marks omitted). This means that the reviewing court
must not define the right “at a high level of generality”; there must be clearly
established law providing guidance based on similar factual scenarios. Id. at __,
138 S. Ct. at 1152 (internal quotation marks omitted).
A reasonable jury could conclude that the pat-down violated Lopez’s
constitutional rights. An officer must rely on specific and articulable facts that a
particular suspect is armed and dangerous to justify a pat-down at the scene.
Thomas, 818 F.3d at 875–76; see also Terry v. Ohio, 392 U.S. 1, 23–24, 88 S. Ct.
1868, 1881, 20 L. Ed. 2d 889 (1968).
Kodadek’s suspicion that Lopez was armed essentially came down to her (1)
being an African-American from Pasadena, (2) wearing a t-shirt, and (3) being
driven in an area that had a history of burglaries. But, taken together, broad racial
3
profiles,4 the wearing of a t-shirt,5 and the nature of the suspected crime6 are
insufficient for reasonable suspicion. That law was clearly established at the time
of the incident, and the district court correctly found that, on Lopez’s alleged facts,
any reasonable officer would have realized his actions violated the law.
As to Lopez’s claim for excessive force, we look to several factors,
“including [1] the severity of the crime at issue, [2] whether the suspect poses an
immediate threat to the safety of the officers or others, and [3] whether he is
actively resisting arrest or attempting to evade arrest by flight.” Graham v.
Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (1989).
Based on the evidence, a jury could conclude the force used by the officer was not
reasonable. Moreover, the law was clearly established that the use of this degree of
force was unreasonable under the circumstances. See Thomas, 818 F.3d at 885;
Meredith v. Erath, 342 F.3d 1057, 1060–61 (9th Cir. 2003); see also Kisela, __
U.S. at __, 138 S. Ct. at 1153.
4
See United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1121, 1124 (9th
Cir. 2002); cf. United States v. Montero-Camargo, 208 F.3d 1122, 1131–32, 1135
n.25 (9th Cir. 2000) (en banc).
5
Thomas, 818 F.3d at 884.
6
Id. at 878 & n.8.
4
Finally, we affirm the district court as to Lopez’s retaliation claim.
Retaliation requires Lopez to prove “that (1) the officer’s conduct ‘would chill or
silence a person of ordinary firmness from future First Amendment activities,’ and
(2) the officer’s desire to chill speech was a ‘but-for cause’ of the adverse action.”
Sharp v. County of Orange, 871 F.3d 901, 919 (9th Cir. 2017).7 A jury could
reasonably conclude that Kodadek’s excessive use of force was retaliatory because
it immediately followed Lopez’s request for a female officer to pat her down and
she was, at most, passively resisting at the time. See Velazquez v. City of Long
Beach, 793 F.3d 1010, 1022–23 (9th Cir. 2015); Duran v. City of Douglas, 904
F.2d 1372, 1378 (9th Cir. 1990). These cases condemning “any action to punish or
deter” a suspect’s speech were clearly established law at the time of the incident.
Duran, 904 F.2d at 1378.
AFFIRMED.
7
Kodadek argues that Lopez must also plead and prove the absence of
reasonable cause for the pat-down and use of force in light of Nieves v. Bartlett, __
U.S. __, __, 139 S. Ct. 1715, 1725, 204 L. Ed. 2d 1 (2019). We assume without
deciding that Nieves would apply to this case, but because a jury could conclude
that no reasonable suspicion justified the pat-down and that the force was
excessive, the Nieves requirements are satisfied.
5