                                                                              FILED
                            NOT FOR PUBLICATION
                                                                              NOV 29 2016
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LEE ARTHUR RICE, II,                             No.   15-35010

              Plaintiff-Appellee,                D.C. No. 1:13-cv-00441-BLW

 v.
                                                 MEMORANDUM*
JANET MURAKAMI,

              Defendant-Appellant,

 and

DALE MOREHOUSE; et al.,

              Defendants.



LEE ARTHUR RICE, II,                             No.   15-35019

              Plaintiff-Appellee,                D.C. No. 1:13-cv-00441-BLW

 v.

JEFFREY A. HILL and MARK
ABERCROMBIE,

              Defendants-Appellants,


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and

JANET MURAKAMI; et al.,

           Defendants.



LEE ARTHUR RICE, II,                  No.   15-35398

           Plaintiff-Appellee,        D.C. No. 1:13-cv-00441-BLW

v.

DALE MOREHOUSE,

           Defendant-Appellant,

NICK SHAFFER,

           Defendant-Appellant,

and

JANET MURAKAMI,

           Defendant,

JOHN DOES, 1-20,

           Defendant,

JEFFREY A. HILL; et al.,

           Defendants.




                                  2
                   Appeal from the United States District Court
                             for the District of Idaho
                    B. Lynn Winmill, Chief Judge, Presiding

                      Argued and Submitted October 4, 2016
                                Portland, Oregon

Before: CLIFTON, MURGUIA, and NGUYEN, Circuit Judges.

      Defendant law enforcement officers appeal the district court’s denial of their

motions for summary judgment on qualified immunity grounds in Plaintiff Lee

Arthur Rice, II’s 42 U.S.C. § 1983 action alleging excessive force. We have

jurisdiction under 28 U.S.C. § 1291. We reverse the denial of qualified immunity

as to Officer Janet Murakami and affirm the denial as to the other officers.

      The denial of a motion for summary judgment based on qualified immunity

is reviewed de novo. Espinosa v. City & Cnty. of S.F., 598 F.3d 528, 532 (9th Cir.

2010). We view the facts and draw all inferences in the light most favorable to the

non-moving party to the extent supportable by the record. Scott v. Harris, 550

U.S. 372, 381 n.8 (2007). An officer is entitled to qualified immunity unless “it

would be clear to a reasonable officer that his conduct was unlawful in the situation

he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled in part on

other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009).




                                          3
      Officer Murakami was entitled to summary judgment based on qualified

immunity. Rice does not allege that Murakami herself applied excessive force, but

rather that she knew or should have known that calling the Code 3 alert “would

likely cause others to use excessive force.” Rice provided no evidence and cited

no support to buttress that claim. Though it is true that a person may be held

responsible for the natural consequences of her actions, it is far from established

that an officer should have reasonably foreseen that other officers responding to a

call would use excessive force, acting in contravention of the Fourth Amendment

and the policies, procedures, and training provided them by their respective law

enforcement agencies.

      The district court did not err in denying summary judgment on qualified

immunity grounds for the remaining officers, however, as there were genuine

disputes of material fact. There were conflicting versions of what happened that

night, and the video of the incident, including what the district court described as

“[t]he scrum,” was not so clear as to definitively resolve the conflict. It was clearly

established at the time of the incident that striking and kneeing a person being

arrested who was not physically resisting constituted excessive force. See, e.g.,

Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993); Hansen v. Black, 885

F.2d 642, 645 (9th Cir. 1989); see also Young v.Cnty. of Los Angeles, 655 F.3d


                                           4
1156, 1161-68 (9th Cir. 2011); Winterrowd v. Nelson, 480 F.3d 1181, 1186 (9th

Cir. 2007). Viewing the evidence in the light most favorable to Rice, a jury could

reasonably conclude that Rice was not physically resisting and that the officers

applied excessive force on him while he was lying on the ground. Defendants

argue that Rice's allegations were not sufficiently supported by evidence, but

“[a]ny decision by the district court that the parties’ evidence presents genuine

issues of material fact is categorically unreviewable on interlocutory appeal.”

George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013) (internal quotation marks

omitted). We affirm the denial of summary judgment as to the other officers.

      Costs are to be taxed in favor of Defendant-Appellant Murakami in

No. 15-35010 and in favor of Plaintiff-Appellee in Nos. 15-35019 & 15-35398.

     REVERSED (No. 15-35010); AFFIRMED (Nos. 15-35019 & 15-35398);
and REMANDED.




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