                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              AUG 31 2018
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


HARSHOD MEHTA, an individual and                 No.   17-55553
KAUSHIKA MEHTA,
                                                 D.C. No.
              Plaintiffs-Appellants,             5:15-cv-01164-VAP-DTB

 v.
                                                 MEMORANDUM*
CITY OF UPLAND, a public entity; et al.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                   Virginia A. Phillips, Chief Judge, Presiding

                           Submitted August 29, 2018**
                              Pasadena, California

Before: WARDLAW, BYBEE, and IKUTA, Circuit Judges.

      Harshod and Kaushika Mehta appeal the district court’s grant of summary

judgment in favor of Officer Lavell Brown and the City of Upland (“Defendants”)

on their 42 U.S.C. § 1983 claim for excessive force and on their state law claims

      *
             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).
for negligence, battery, and loss of consortium. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      We review an order granting summary judgment de novo. Scheuring v.

Traylor Bros., 476 F.3d 781, 784 (9th Cir. 2007). Summary judgment should be

granted if “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). By its terms, “this

standard provides that the mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis in

original).

1.    Harshod Mehta alleges, under 42 U.S.C. § 1983, that Officer Brown violated

the Fourth, Eighth, and Fourteenth amendments by using excessive force when he

pulled Mehta from his car and onto the ground.

      Claims for excessive force are analyzed under the Fourth Amendment’s

prohibition against unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394

(1989). The reasonableness of a seizure turns on “whether the officers’ actions are

‘objectively reasonable’ in light of the facts and circumstances confronting them.”

Id. at 397. To determine whether a specific use of force was reasonable, we must


                                          2
balance “the nature and quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing governmental interests at stake.”

Id. at 396 (internal quotations and citation omitted).

      We turn first to the nature and quality of the intrusion on Mehta’s Fourth

Amendment interests by assessing the “type and amount of force inflicted.” Young

v. Cty. of Los Angeles, 655 F.3d 1156, 1161 (9th Cir. 2011) (citation omitted).

After carjacking another victim’s car, a fleeing felon led police through a

dangerous car chase that ended when he crashed into Mehta’s car.1 Police

encircled the car while the suspect remained inside. Observing that Mehta was at

risk of being caught in crossfire or taken hostage, 2 Officer Brown approached

Mehta’s car with a gun in his hand pointing at Mehta, and signaled for Mehta to

open his door and unbuckle his seatbelt. Mehta unlocked the door, while Officer

Brown continued to aim the gun at his side. According to Mehta, Officer Brown

aimed the gun at his face, and then pulled Mehta from his car and pushed him to

      1
         Mehta attempts to manufacture a dispute over whether or not Officer
Brown actually witnessed the crash, but has produced no evidence to contravene
that presented by Defendants. The district court appropriately accepted as true the
fact that Officer Brown witnessed the car crash.
      2
         Mehta argues that Officer Brown’s actions were motivated by a mistaken
belief that Mehta was the criminal, rather than a desire to save Mehta from a
potentially life-threatening situation. However, Mehta has not pointed to evidence
sufficient to create a genuine issue of material fact on this point. Nelson v. Pima
Cmty. Coll., 83 F.3d 1075, 1081–82 (9th Cir. 1996).
                                           3
the ground, breaking Mehta’s thumb in the process. Mehta alleges that after being

thrown to the ground, Officer Brown aimed his gun at Mehta’s head from about a

foot-and-a-half away. Officer Brown then dragged Mehta to cover behind the rear

tires of his car and later to safety on the side of the road.

      The amount of force exerted by Officer Brown against Mehta thus consisted

of aiming a gun at him, pulling him from his car, shoving him to the ground, and

subsequently dragging him across the road. The nature and quality of this

intrusion is “less significant than most claims of force.” See Forrester v. City of

San Diego, 25 F.3d 804, 807–08 (9th Cir. 1994) (describing the use of pain

compliance techniques on nonresisting abortion protestors, which resulted in

bruises, a pinched nerve, and a broken wrist, as a “minimal” use of force). Officer

Brown’s brief use of a gun pointed in Mehta’s direction does not change this

analysis. Cf. Espinosa v. City & Cty. of San Francisco, 598 F.3d 528, 532–33, 537

(9th Cir. 2010) (finding high level of force used when several officers cornered

suspect in attic, pointed loaded guns at that suspect, and ordered him to put his

hands up, eventually fatally shooting him).

      In comparison, the government had a strong interest in arresting those

suspected of committing felonies and in protecting the safety of the officers and

public. Mehta’s presence in his car not only impeded the officers’ ability to


                                            4
apprehend their suspect, but also posed a severe risk to Mehta’s own safety and

that of the officers who would be forced to maneuver around Mehta while

engaging with a hostile suspect. Eliminating such a threat to officer or public

safety is among the “most important” governmental interests justifying the use of

force. Young, 655 F.3d at 1163.

      When the intrusion on Mehta’s Fourth Amendment interests are thus

weighed against the strength of the governmental interest, there exists no genuine

issue for trial. The type and amount of force inflicted on Mehta was low, and was

justified by the government’s strong interest in public and officer safety. The

district court correctly found that no rational trier of fact could find for Mehta, and

appropriately granted summary judgment.

2.    Even if Officer Brown’s actions did constitute excessive force, Plaintiffs’

claims would still fail because Officer Brown is entitled to qualified immunity. An

officer’s entitlement to qualified immunity is reviewed de novo on appeal. Glenn

v. Washington Cty., 673 F.3d 864, 870 (9th Cir. 2011).

      If the court determines that an officer’s conduct amounts to a violation of a

constitutional right, the court must then determine whether the officer is entitled to

qualified immunity. Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing

Saucier v. Katz, 533 U.S. 194, 201 (2001)). An officer is entitled to qualified


                                           5
immunity if the right at issue was not “clearly established” at the time of the

violation. Id. at 243–44. To be clearly established, “[t]he contours of the right

must be sufficiently clear that a reasonable official would understand that what he

is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

      Assuming for the sake of argument that Officer Brown’s conduct amounted

to excessive force in violation of Mehta’s Fourth Amendment rights, Officer

Brown would nevertheless be entitled to qualified immunity because the right

allegedly violated was not clearly established under preexisting law. Mehta has

not identified, and we are not aware of, “any case demonstrating a clearly

established rule prohibiting the officer from acting as he did.” Saucier, 533 U.S. at

209. An officer in Officer Brown’s situation could reasonably believe that the

amount of force he used was lawful to ensure the safety of both officers and the

public. The district court, therefore, correctly held that Officer Brown was entitled

to qualified immunity.

3.    Mehta also contends that the district court incorrectly granted summary

judgment on his state law claims for negligence and battery. Under California law,

in a battery claim against a police officer, the plaintiff must prove that the officer

acted with unreasonable force under the Fourth Amendment’s “objective

reasonableness” standard. Edson v. City of Anaheim, 74 Cal. Rptr. 2d 614, 616


                                           6
(Cal. Ct. App. 1998). Because Officer Brown’s use of force was objectively

reasonable, the district court correctly granted summary judgment on Mehta’s

battery claim.

      For Mehta’s negligence claim, California law uses Fourth Amendment

standards to make a reasonableness determination as to whether a police officer

acted with neglect. Brown v. Ransweiler, 89 Cal. Rptr. 3d 801, 817 (Cal. Ct. App.

2009) (holding that if an officer’s “use of . . . force [was] objectively reasonable

under the circumstances,” then the officer “met his duty to use reasonable care . . .

and, as a matter of law, cannot be found to have been negligent in this regard”

(internal quotations and citation omitted)). Because Officer Brown’s use of force

was objectively reasonable under the circumstances, the district court correctly

held that Officer Brown cannot, as a matter of law, be found negligent in this

regard.

4.    Lastly, Kaushika Mehta contests the district court’s grant of summary

judgment on her claim for loss of consortium. A claim for loss of consortium “is,

by its nature, dependent on the existence of a cause of action for tortious injury to a

spouse.” Hahn v. Mirda, 54 Cal. Rptr. 3d 527, 531 (Cal. Ct. App. 2007). Indeed,

Mehta concedes that her loss of consortium claim “rises and falls with those of her

husband.” Because the district court correctly granted summary judgment on


                                           7
Harshod Mehta’s negligence, battery, and § 1983 claims, the district court correctly

granted summary judgment against Kaushika Mehta’s claim for loss of consortium.

      Accordingly, the judgment of the district court is AFFIRMED.




                                         8
