                            NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         DEC 30 2016

                            FOR THE NINTH CIRCUIT                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS




ERNEST JOSEPH ATENCIO, surviving                 No. 15-15451
father of Ernest Marty Atencio, et al.,
                                                 D.C. No. 2:12-cv-02376-PGR
              Plaintiffs-Appellees,

 v.                                              MEMORANDUM*

JOSEPH M. ARPAIO, named as Sheriff
Joseph Arpaio, husband; et al.,

              Defendants-Appellants,

 and

MARICOPA, COUNTY OF, a public
entity; et al.,

              Defendants.



ERNEST JOSEPH ATENCIO, surviving                 Nos. 15-15456
father of Ernest Marty Atencio, et al.,
                                                 D.C. No. 2:12-cv-02376-PGR
              Plaintiffs-Appellees,

 v.

JOSEPH M. ARPAIO, named as Sheriff

       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Joseph Arpaio, husband; et al.,

             Defendants,

and

PHOENIX, CITY OF, a public entity; et
al.,

             Defendants-Appellants.



ERNEST JOSEPH ATENCIO, surviving            Nos. 15-15459
father of Ernest Marty Atencio, et al.,
                                            D.C. No. 2:12-cv-02376-PGR
             Plaintiffs-Appellees,

v.

JOSEPH M. ARPAIO, named as Sheriff
Joseph Arpaio, husband; et al.,

             Defendants,

IAN CRANMER, husband; et al.,

             Defendants,

and

ANTHONY HATTON, husband

             Defendant-Appellant.




                                        2
                     Appeal from the United States District Court
                              for the District of Arizona
                     Paul G. Rosenblatt, District Judge, Presiding

                     Argued and Submitted November 17, 2016
                             San Francisco, California

Before: MELLOY,** CLIFTON, and WATFORD, Circuit Judges.

      Defendants-Appellants appeal from the district court’s denial of summary

judgment based on qualified immunity. We have jurisdiction under 28 U.S.C.

§ 1291.1 We affirm in part, reverse in part, and remand.

      We review de novo an order denying summary judgment based on qualified

immunity. Glenn v. Wash. Cty., 673 F.3d 864, 870 (9th Cir. 2011). A public

official is entitled to qualified immunity if (1) the disputed facts taken in the light

most favorable to the party asserting the injury do not show that the official’s

conduct violated a constitutional right, or (2) the constitutional right was not

clearly established at the time the official acted. See, e.g., CarePartners, LLC v.

Lashway, 545 F.3d 867, 876 (9th Cir. 2008).

      **
            The Honorable Michael J. Melloy, United States Circuit Judge for the
Eighth Circuit, sitting by designation.
      1
         Plaintiffs-Appellees’ (“Atencio”) motion to dismiss for lack of jurisdiction
is denied because we have jurisdiction to consider “whether the defendant[s] would
be entitled to qualified immunity as a matter of law, assuming all factual disputes
are resolved, and all reasonable inferences are drawn, in plaintiff[s’] favor.”
George v. Morris, 736 F.3d 829, 836 (9th Cir. 2013) (brackets added) (quoting
Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012)).
                                            3
      Viewing the evidence in the light most favorable to Atencio, including the

available video evidence, several of Defendants’ acts could be found by a jury to

constitute excessive force. Officer French appeared to apply what might be

perceived as a carotid hold on Atencio when he was already physically subdued by

several officers and arguably posed no immediate threat. When Atencio was being

held down by several officers in a “dog pile,” there was evidence that Sergeant

Weiers tasered Atencio three times and Officer Hatton struck Atencio repeatedly

with a closed fist before Atencio was handcuffed and taken to a safe cell. There,

Officer Hatton delivered a knee strike to Atencio’s upper body, and possibly his

head, even though Atencio was handcuffed and being held in a prone position on

the ground by several officers. Under these circumstances, a reasonable jury could

conclude that some or all of those actions were objectively unreasonable. Saucier

v. Katz, 533 U.S. 194, 201 (2001).

      Assuming these facts for the purpose of the second part of the qualified

immunity test, there was clearly established precedent that would have made it

sufficiently clear to reasonable officials that the acts here constituted excessive

force. The circumstances here are not meaningfully different from those in Lolli v.

County of Orange, 351 F.3d 410 (9th Cir. 2003), in which this court held that the

defendants were not entitled to summary judgment on an excessive force claim


                                           4
alleging that a group of officers took a pre-trial detainee to the ground without

warning, then began to strike and pepper spray him even though he posed no threat

and was neither aggressive nor violent to the officers. Id. at 417. Lolli should have

put a reasonable official on notice that he was prohibited from the type and amount

of force used against Atencio, including multiple strikes to the face, repeated

tasering, and a knee strike, when Atencio was at most passively resisting, he posed

no threat to the officers, and he was already being physically restrained by several

officers.

         We recognize that a jury could credit the testimony of the officers and find

that their use of force was permissible. However, because Atencio has shown that

there exists a genuine dispute of material fact as to the reasonableness of their

conduct, and because under one version of the facts, their conduct violated clearly

established law, Officer French, Sergeant Weiers, and Officer Hatton are not

entitled to summary judgment based on qualified immunity on the excessive force

claim.

         The district court denied qualified immunity to several other Defendants

because there were genuine issues of material fact as to whether they were

“integral participants” in these acts of excessive force. See Blankenhorn v. City of

Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007). In analyzing the various


                                            5
Defendants’ integral participation, the district court properly examined each

officer’s conduct rather than employing a “team effort” approach that simply

“lump[s] all the defendants together.” Jones v. Williams, 297 F.3d 930, 936 (9th

Cir. 2002). Contrary to what Defendants claim, the district court properly found

that Officer Kaiser had no involvement in the safe cell, but that there were genuine

issues of material fact as to whether he was an integral participant in the linescan

room events. The district court also properly determined that Officer Vazquez may

have been an integral participant in the linescan room. Neither the video evidence

nor Officer Vazquez’s own affidavit resolved whether he entered the linescan room

with enough time to participate in the tasering or the strikes.

      We cannot say that the district court erred in applying the integral

participation doctrine to Officer Hanlon for his wrist lock of Atencio, because his

wrist lock was instrumental in controlling Atencio, which allowed the other

officers to commit the excessive force against him. See Blankenhorn, 485 F.3d at

481 n.12 (holding that officer was liable as an integral participant for his help in

handcuffing plaintiff because it “was instrumental in the officers’ gaining control

of [him], which culminated in” excessive force).

      However, the district court erred in denying qualified immunity to Sergeant

Scheffner for his role in Officer Hatton’s knee strike of Atencio in the safe cell.


                                           6
The district court concluded that genuine issues of material fact regarding his

integral participation, supervisory liability, and the duty to intervene precluded

summary judgment in his favor based on qualified immunity. We disagree.

Sergeant Scheffner could not be liable as a matter of law under any of these

theories because, even though he may have seen Hatton deliver the knee strike,

there is no evidence that Sergeant Scheffner directed or otherwise knew that the

solitary knee strike would occur, physically participated in the knee strike, or had a

realistic opportunity to stop the knee strike from happening. See, e.g.,

Cunningham v. Gates, 229 F.3d 1271, 1289-92 (9th Cir. 2000) (discussing

standards for supervisory liability and duty to intervene).

      The district court also erred in denying qualified immunity to Officer Hanlon

on Atencio’s substantive due process claim for loss of familial association.

“Official conduct that ‘shocks the conscience’ in depriving [family members] of

that interest is cognizable as a violation of [substantive] due process.” Wilkinson v.

Torres, 610 F.3d 546, 554 (9th Cir. 2010). “In determining whether excessive

force shocks the conscience, the court must first ask ‘whether the circumstances

are such that actual deliberation [by the officer] is practical.’ Where actual

deliberation is practical, then an officer’s ‘deliberate indifference’ may suffice to

shock the conscience.” Id. The “deliberate indifference” standard is applicable


                                           7
because the circumstances appeared to permit actual deliberation by Officer

Hanlon before he applied the wrist lock. However, it cannot be said that his use of

the wrist lock showed his deliberate indifference to Atencio’s death. Hanlon could

not have reasonably foreseen that his use of a wrist lock would cause or would

trigger events ultimately leading to Atencio’s death.2

      We decline to exercise pendent jurisdiction over the district court’s denial of

summary judgment in favor of the Defendants regarding Atencio’s state law claims

because these issues are not “inextricably intertwined” with the qualified immunity

issues properly raised on interlocutory appeal. See Kwai Fun Wong v. United

States, 373 F.3d 952, 960 (9th Cir. 2004). Whereas “qualified immunity is an

immunity from suit rather than a mere defense to liability,” Jones v. County of Los

Angeles, 802 F.3d 990, 999 (9th Cir. 2015), the Arizona justification statutes raised

by Defendants in their motion for summary judgment on the state law claims

merely provide a potential defense when the merits are adjudicated, A.R.S.

§§ 13-413 and 13-403(2).



      2
        None of the other Defendants, apart from Officers Hanlon and French,
appealed the denial of qualified immunity as to the substantive due process claim.
Although the Defendants attempted to incorporate each other’s arguments by
reference, Officers Hanlon’s and French’s arguments regarding the substantive due
process claim were limited to their own conduct, so they do not apply to the other
Defendants.
                                          8
      We reverse the district court’s denial of denial of summary judgment as to

Defendant Scheffner for Atencio’s excessive force claim based on qualified

immunity. We also reverse the district court’s denial of qualified immunity to

Defendant Hanlon on Atencio’s familial association claim under the Fourteenth

Amendment. We affirm in all other respects.

      Each party to bear its own costs.

      AFFIRMED IN PART, REVERSED IN PART, REMANDED.




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