                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 23 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JOSEPH L GENDREAU,                               No. 13-35025

              Plaintiff - Appellant,             D.C. No. 2:11-cv-01385-TSZ

  v.
                                                 MEMORANDUM*
CITY OF MERCER ISLAND, a municipal
corporation; ROBB KRAMP, in his
capacity as a police officer for the City of
Mercer Island and as an individual,

              Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Western District of Washington
                 Thomas S. Zilly, Senior District Judge, Presiding

                             Submitted May 13, 2014**
                                Seattle, Washington

Before: O’SCANNLAIN, BERZON, and TALLMAN, Circuit Judges.

       Joseph Gendreau appeals summary judgment against his section 1983 and

state law claims naming the City of Mercer Island and Mercer Island Police Officer

        *
             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).
Robb Kramp. Central to each claim is the allegation that Officer Kramp lacked

probable cause to arrest Gendreau. The district court found probable cause and, in

the alternative, that Officer Kramp was entitled to qualified immunity. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We agree and affirm.

      Gendreau got into an altercation with a realtor who had parked in his

driveway while he was away. Following the altercation, the realtor, Ms. Forschler,

gave a sworn statement to Officer Kramp. In it, she explained that she and her

client had parked in Gendreau’s driveway to view a nearby listed home. When she

returned to her car, she saw Gendreau exit his vehicle, which he had parked behind

hers, blocking her exit. Gendreau walked toward her briskly, shouting and

cursing.1 She said that Gendreau threatened to get her fired. He then confronted




      1
        Gendreau does not dispute that he shouted at Forschler like, as he
describes it, “a coach shouting at one of the players on a field.”
                                         2
her and swiped papers from her hands. Forschler was in “utter shock” and feared

for her safety, so much so that she lost control of her bladder.2

      Officer Kramp also spoke to Gendreau before making the arrest. Officer

Kramp asked Gendreau about documents that Forschler claimed Gendreau had

taken from her car before the altercation. Gendreau admitted he had the documents

but claimed he found them on his driveway. Yet he also admitted to entering

Forschler’s vehicle in her absence to honk her horn. Gendreau declined to prepare

a sworn statement, claiming he was too tired.

      We conclude that Forschler’s sworn statement, corroborated in part by

Gendreau’s statement, provided “reasonably trustworthy information of facts and

circumstances sufficient to lead a prudent person to believe that” Gendreau had

assaulted Forschler. Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1097 (9th Cir.


      2
         Gendreau argues that the district court drew inferences in favor of Officer
Kramp. But the district court merely described what Officer Kramp had been told
by Gendreau. The question is not, as Gendreau seems to think, whether a jury
would believe that he did not assault Forschler. It is merely whether Officer
Kramp, based on the information before him, had probable cause to make an arrest.
See Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir. 2011) (“An officer
has probable cause to make a warrantless arrest when the facts and circumstances
within his knowledge are sufficient for a reasonably prudent person to believe that
the suspect has committed a crime.” (emphasis supplied)). That is, “[t]he facts are
those that were known to the officer at the time of the arrest.” Id. The district
court properly described the information Officer Kramp had in front of him before
arresting Gendreau and determined a reasonable officer could reach the conclusion
that probable cause existed.
                                           3
2013).3 Mercer Island Municipal Code § 9.06.010(A)(1) defines assault as

“intentionally plac[ing] or attempt[ing] to place another person in fear or

apprehension of bodily harm by any act, word or threat.” Officer Kramp had

evidence that Gendreau trapped the victim in his driveway when he blocked

Forschler’s vehicle, walked toward her briskly—shouting and cursing—and

swiped papers from her hands. These are actions reasonably indicative of

Gendreau intending “to place [Forschler] in fear or apprehension of bodily harm.”

Mercer Is. Muni. Code § 9.06.010(A)(1). Indeed, it appears that Gendreau

succeeded; Forschler swore to Officer Kramp that Gendreau’s actions caused her

to wet herself.

      Gendreau says Officer Kramp should have investigated further before

arresting him. He directs us to two cases—United States v. Struckman, 603 F.3d

731 (9th Cir. 2010) and Hopkins v. Bonvicino, 573 F.3d 752 (9th Cir. 2009)—for

the proposition that officers may not, in establishing probable cause, rely solely on

the claim of a citizen witness. Even accepting that these cases hold what Gendreau

says, Officer Kramp did not rely solely on Forschler’s sworn statement. In contrast



      3
        If probable cause supported the arrest, Gendreau’s remaining § 1983
claims fail, see Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir.
1998) (per curium), as do his state law claims, see Hanson v. City of Snohomish,
852 P.2d 295, 301 (Wash. 1993).
                                          4
to the cases Gendreau cites, here Officer Kramp discussed the altercation with

Gendreau before making the arrest. Gendreau’s admissions corroborated enough

of Forschler’s statement to establish probable cause to arrest him.4

      Finally, we agree with the district court’s alternative holding that Officer

Kramp is entitled to qualified immunity. Gendreau makes only two arguments to

the contrary. He says that Forschler’s statements to Officer Kramp did not

establish probable cause and that “[t]here was no corroboration from the other

witnesses.” We have already explained that the evidence known to the

investigating officer established probable cause. And Officer Kramp did

corroborate part of Forschler’s statement through Gendreau himself. Even if

Officer Kramp made a mistake in assessing the significance of the facts before him

and did not have probable cause based on the information he had gathered, though

we believe he was correct, “a reasonable officer in [his] position would not have



      4
         Gendreau briefly argues that Officer Kramp lacked probable cause because
Forschler told Officer Kramp that Gendreau never physically harmed her or
threatened to harm her. Forschler also never told Officer Kramp that Gendreau
might want to hurt her or that she feared for her life. But assault, as defined in
Mercer Island’s Municipal Code, does not require physical harm, any threats, or
that the victim fear for her life. Mercer Is. Muni. Code § 9.06.020(A) (assault
results from “intentionally plac[ing] or attempt[ing] to place another person in fear
or apprehension of bodily harm by any act, word or threat”). The victim’s
statement to police and her involuntary physical reaction to Gendreau’s
provocation is sufficient to meet the elements of the crime.
                                          5
clearly known that his conduct was unlawful under these circumstances.” Ramirez

v. City of Buena Park, 560 F.3d 1012, 1024 (9th Cir. 2009).

      AFFIRMED.




                                        6
                                                                             FILED
Gendreau v. City of Mercer Island, No. 13-35025                               MAY 23 2014

                                                                          MOLLY C. DWYER, CLERK
BERZON, J., concurring:                                                    U.S. COURT OF APPEALS



      I concur as to qualified immunity only. I would not reach the question

whether there was in fact probable cause to believe an assault was committed. I

tend to think there was not. But the question is close enough that I cannot say that

a reasonable police officer could not have concluded otherwise. See Saucier v.

Katz, 533 U.S. 194, 202 (2001).
