                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           FEB 19 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


EMMANUEL ONYENWE,                                No. 13-57084

              Plaintiff - Appellee,              D.C. No. 5:12-cv-01363-MMM-
                                                 SP
 v.

CITY OF CORONA,                                  MEMORANDUM*

              Defendant,

  And

BLAIR MONTALBANO, Officer No:
002508; DAVID DOPSON, Officer,

              Defendants - Appellants.


                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                      Argued and Submitted February 3, 2016
                               Pasadena, California

Before: REINHARDT, PAEZ, and M. SMITH, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Officers David Dopson and Blair Montalbano (“Defendants”) appeal the

district court’s denial of qualified immunity on Emmanuel Onyenwe’s claims of

false arrest and excessive force in violation of 42 U.S.C. § 1983. We affirm.

      We affirm the district court’s denial of qualified immunity on Onyenwe’s

false arrest claim. To determine whether a police officer is entitled to qualified

immunity, we ask, “[t]aken in the light most favorable to the party asserting the

injury, do the facts alleged show the officer’s conduct violated a constitutional

right?” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson v.

Callahan, 555 U.S. 223 (2009). We also ask “whether the right was clearly

established,” meaning that “it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.” Id. at 201–02. On

Onyenwe’s false arrest claim, he alleges that he was arrested for public

intoxication without probable cause after he picked up two friends from a bar.

Taking the evidence in the light most favorable to Onyenwe, he had no

communication with police or security guards prior to his arrest. He had not been

drinking and was not involved in any altercations. On these facts, Defendants

could not reasonably have believed that there was probable cause to arrest him for

public intoxication. See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1443 (9th Cir.




                                           2
1991). Thus, the district court did not err in determining that Defendants were not

entitled to qualified immunity at the summary judgment stage.

      The district court also properly found that Defendants were not entitled to

qualified immunity on Onyenwe’s excessive force claim. To determine whether a

police officer’s use of force violates the Fourth Amendment, the court examines

“the facts and circumstances of each particular case, including the severity of the

crime at issue, whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or attempting to evade

arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989). Here, Onyenwe

was arrested for public intoxication, a minor crime. Onyenwe presented evidence

that Defendants slammed him against a car and kicked him, and that Onyenwe was

not resisting arrest when this occurred. Taking these facts as true for purposes of

determining whether Defendants are entitled to qualified immunity, it would have

been clear to a reasonable officer that the force applied was unlawful. See

Winterrowd v. Nelson, 480 F.3d 1181, 1184–85 (9th Cir. 2007). Accordingly, the

district court did not err in denying Defendants’ motion for summary judgment on

Onyenwe’s excessive force claim.

      AFFIRMED.




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