                                                                              FILED
                            NOT FOR PUBLICATION
                                                                              MAR 26 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


C.L., by and through his guardians ad            No. 19-15234
litem Kevin and Danielle Leibel,
                                                 D.C. No. 2:18-cv-01743-DWL
              Plaintiff-Appellee,

 v.                                              MEMORANDUM*

DAVID GROSSMAN, Officer,
individually and in his official capacity,

              Defendant-Appellant,

 and

CITY OF BUCKEYE; CHARLES
ARLAK, Lieutenant, individually and in
his official capacity; LARRY HALL,
Chief, individually and in his official
capacity; DOES, named as Doe BPD
Officers 1 - 10, individually and in their
official capacities,

              Defendants.




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                    Appeal from the United States District Court
                             for the District of Arizona
                     Dominic Lanza, District Judge, Presiding

                       Argued and Submitted March 2, 2020
                                Phoenix, Arizona

Before: CLIFTON, OWENS, and BENNETT, Circuit Judges.

      Defendant-Appellant David Grossman, a police officer for the City of

Buckeye, Arizona, appeals the district court’s denial of a motion to dismiss based

on qualified immunity. We affirm.

      We review the denial of a motion to dismiss for qualified immunity de novo.

Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2018). We accept the allegations in

the complaint as true and construe them in the light most favorable to the plaintiff.

See id. at 1238. To determine whether Grossman is entitled to qualified immunity,

we consider whether (1) his alleged conduct violated the Fourth Amendment, and

(2) if it was “clearly established that the Fourth Amendment prohibited [his]

conduct in the ‘situation [he] confronted.’” Mullenix v. Luna, 136 S. Ct. 305, 309

(2015) (per curiam) (citation omitted). The allegations satisfy these elements here.

1.    The Fourth Amendment’s prohibition against unreasonable seizures extends

to investigatory stops without reasonable suspicion and detentions without

probable cause. See, e.g., Terry v. Ohio, 392 U.S. 1, 9 (1968). Reasonable



                                          2
suspicion requires a “particularized and objective basis,” United States v. Arvizu,

534 U.S. 266, 273 (2002), to suspect a person of criminal activity based on

“specific and articulable facts” available to the officer, Terry, 392 U.S. at 21.

C.L.’s allegations support his claim under Count 1 that he was stopped without

reasonable suspicion and detained without probable cause.

      According to the allegations of the complaint, Grossman suspected C.L. of

using an illegal inhalant when, driving by a public park, he saw C.L. sitting by

himself and making repetitive movements with his hands. C.L. responded to

Grossman’s questions and showed that he was holding only a piece of string. At

that point, Grossman’s investigation had run its course and there was no basis to

support continuation of the stop. See Sialoi v. City of San Diego, 823 F.3d 1223,

1232-33 (9th Cir. 2016) (denying qualified immunity to officers who “violated the

Fourth Amendment by continuing the seizure beyond the point at which they

determined that [a suspect] had not in fact had a weapon in his hand,” as “any

suspicion . . . dissipated” when the officers learned that the object they believed

was a gun was merely a toy).

      Whether an arrest took place depends on the totality of the circumstances,

considering, among other things, “whether ‘a reasonable innocent person in these

circumstances would . . . have felt free to leave after brief questioning.’” United


                                           3
States v. Edwards, 761 F.3d 977, 981 (9th Cir. 2014) (citation omitted). It is

alleged that when C.L. “turned to leave,” Grossman prevented him from doing so

and “pinned” him down until backup arrived. Under those circumstances, a

reasonable person would not have felt free to leave.

      In analyzing qualified immunity, “the question with respect to whether an

unlawful arrest violated clearly established law is ‘whether it is reasonably

arguable that there was probable cause for arrest[.]’” Sialoi, 823 F.3d at 1233

(citation omitted) (emphasis in original). The complaint did not allege facts that

would make it “reasonably arguable” that probable cause existed. After seeing that

C.L. was holding only a string and certainly after learning from C.L.’s caregiver

that he was autistic, “no officer of ‘reasonable caution’ would have had any reason

to believe” that C.L. was using an illegal inhalant or otherwise engaging in

criminal activity. Id.; see also Liberal v. Estrada, 632 F.3d 1064 (9th Cir. 2011)

(denying qualified immunity because the officer’s mistake of fact was

unreasonable). Qualified immunity was properly denied.

2.    Grossman is also not entitled to qualified immunity from C.L.’s excessive

force claim. The Fourth Amendment requires police officers to use an “objectively

reasonable” degree of force when executing an arrest or detention. Bryan v.

MacPherson, 630 F.3d 805, 823 (9th Cir. 2010). To assess reasonableness, we


                                          4
look to the totality of the circumstances, 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). None of these factors favor

Grossman. To the contrary, the allegations of the complaint indicate that C.L. was

suspected of committing a relatively minor crime, did not pose a threat to anyone’s

safety, and was not actively resisting or attempting to flee from arrest.

      Grossman argues that the law in this circuit allows an officer to use

“minimal” force to “take [a] suspect to the ground and maintain control until back-

up officers arrive, where the suspect continues or escalates resistance.” The facts

as alleged here, however, do not suggest that C.L. did continue or escalate

resistance. The cases cited by Grossman are not analogous.

      Case law in this circuit gave fair notice that taking and holding C.L. to the

ground was unreasonable under the circumstances. See Liberal, 632 F.3d at 1078-

79 (denying qualified immunity from excessive force claims where officers shoved

and handcuffed the plaintiff in the absence of reasonable suspicion or probable

cause, and there was no evidence to suggest that the plaintiff was armed,

dangerous, or fleeing). Especially after C.L.’s caregiver arrived on the scene and

explained that C.L. was autistic, this was an “obvious case” in which any


                                           5
reasonable officer would have understood that continued use of force would violate

the Fourth Amendment. Brosseau v. Haugen, 543 U.S. 194, 199 (2004); see

Graham, 490 U.S. at 396.

      The district court properly denied qualified immunity.

      AFFIRMED.




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