                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 13 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ANTHONY CHANEY,                                  No.    15-35892

              Plaintiff-Appellant,               D.C. No. 9:14-cv-00177-DWM

 v.
                                                 MEMORANDUM*
DANIEL WADSWORTH, in his
individual capacity and as Ronan Police
Chief; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                             Submitted June 8, 2017**
                               Seattle, Washington

Before: McKEOWN, CALLAHAN, and IKUTA, Circuit Judges.

      Anthony Chaney (“Anthony”) appeals from the district court’s order

granting summary judgment for defendants-appellees in his civil action brought


      *
             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).
under 42 U.S.C. § 1983 and Montana state law. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      We review de novo the district court’s grant of summary judgment. Bravo v.

City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011). Summary judgment is

appropriate “if the movant shows that 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). “[T]he evidence of the nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Tolan v. Cotton, 134 S. Ct. 1861, 1863

(2014) (per curiam) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986)).1

      1. “A § 1983 plaintiff must demonstrate a deprivation of a right secured by

the Constitution or laws of the United States, and that the defendant acted under

color of state law.” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (citing

West v. Atkins, 487 U.S. 42, 48 (1988)). The defendants, City of Ronan officers

(the “officers”), are eligible for qualified immunity if “their conduct d[id] not

violate clearly established statutory or constitutional rights of which a reasonable




      1
             The facts are familiar to the parties and are restated here only as
necessary to resolve the legal issues of the appeal.
                                           2
[officer] would have known” at the time. Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).

      Qualified immunity analysis centers around two questions: (1) “[t]aken in

the light most favorable to the party asserting the injury, do the facts alleged show

the officer’s conduct violated a constitutional right”; and (2) was the right “clearly

established” at the time of the alleged misconduct? Saucier v. Katz, 533 U.S. 194,

201 (2001).

      The Fourth Amendment, through the Fourteenth Amendment, protects

individuals from unreasonable searches and seizures by state officials. See Mapp

v. Ohio, 367 U.S. 643, 655 (1961). The Fourth Amendment permits arrests

supported by probable cause. Beck v. Ohio, 379 U.S. 89, 91 (1964). Under Mont.

Code Ann. § 45-7-302(1), a person commits obstruction if he or she “knowingly

obstructs” a peace officer, which requires “that an individual . . . engage in conduct

under circumstances that make him or her aware that it is highly probable that such

conduct will impede the performance of a peace officer’s lawful duty.” City of

Kalispell v. Cameron, 46 P.3d 46, 47 (Mont. 2002). We conclude that the officers

had probable cause to arrest Anthony under the Montana statute.

      Taking the facts in the light most favorable to Anthony, an officer responded

to a reported bar fight at 2:00 a.m. and found Anthony on top of Donald, who was


                                           3
screaming. Anthony said that Donald was his brother and had PTSD. Two more

officers arrived, and one officer got on top of Anthony to try to cuff Donald while

a second officer grabbed Anthony by the arm and lifted him off Donald. Anthony

yelled at the officers and said “f— that dude in the black shirt,” referring to one of

the officers. Although Anthony was told his conduct was obstructing the officers,

Anthony continued to make threats. The officers then handcuffed Anthony. At

some point, Anthony received a scratch on the neck. It was reasonable for the

officers to believe that Anthony’s conduct was creating a risk of more violence and

that Anthony was obstructing a peace officer under Mont. Code Ann § 45-7-

302(1), when he threatened the officer. No reasonable jury could find that the

officers did not have probable cause to arrest Anthony for obstruction. See

McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984); Peschel v. City of

Missoula, 686 F. Supp. 2d 1107, 1119 (D. Mont. 2009).

       2. The Fourth Amendment protects against unreasonable or excessive force

by law enforcement officers. Graham v. Connor, 490 U.S. 386, 395 (1989). “The

‘reasonableness’ of a particular use of force must be judged from the perspective of

a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Id. at 396.




                                           4
      Responding to a reported fight in progress, the officers found Anthony on

top of Donald and separated the two men, causing a scratch on Anthony’s neck.

Anthony was not beaten or injured, beyond the scratch. Because the intrusion on

Anthony’s Fourth Amendment interests was small, merely a scratch on the neck,

and the countervailing governmental interest at stake was to protect an officer in

the performance of his duty, the officers’ use of force was reasonable under the

circumstances and did not violate Anthony’s Fourth Amendment rights. See

Graham, 490 U.S. at 396–97; Espinosa v. City & County of San Francisco, 598

F.3d 528, 537 (9th Cir. 2010).

      3. Municipalities, like the City of Ronan, can be held liable under 42 U.S.C.

§ 1983. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978).

However, “[l]ike individual state officials, municipalities are only liable under

Section 1983 if there is, at minimum, an underlying constitutional tort.” Johnson

v. City of Seattle, 474 F.3d 634, 638 (9th Cir. 2007) (citing Monell, 436 U.S. at

691). Because the officers did not violate Anthony’s Fourth Amendment rights,

there is no basis for his Monell claims.

      4. Summary judgment was also proper on Anthony’s claims under Montana

state law. Because the officers did not violate Anthony’s Fourth Amendment

rights against unreasonable search and seizure, they did not violate those rights


                                           5
under the Montana Constitution either. “Where a provision of the Montana

Constitution mirrors a provision of the United States Constitution, the Montana

Supreme Court looks to the decisional law of the federal courts for guidance on

developing the applicable analysis under the identical provision of the Montana

Constitution.” Peschel, 664 F. Supp. 2d at 1161 (citing Quigg v. Slaughter, 154

P.3d 1217 (Mont. 2007)). Indeed, “Montana’s constitutional provision regarding

searches and seizures [Article II § 11] mirrors the Fourth Amendment to the United

States Constitution.” State v. Siegal, 934 P.2d 176, 183 (Mont. 1997), overruled

on other grounds by State v. Kuneff, 970 P.2d 556 (Mont. 1998); see also State v.

McMaster, 191 P.3d 443, 445 (Mont. 2008).

      Nor did the officers violate Anthony’s right to privacy under the Montana

Constitution. See State v. Hill, 94 P.3d 752, 756 (Mont. 2004). Here, Anthony’s

arrest and brief detention, which were supported by probable cause, did not

specially implicate his right to privacy. Moreover, Anthony does not allege that

any of his property was illegally searched or seized.

      Finally, because the officers did not use more force than was reasonably

necessary, no reasonable jury could find them liable for assault and battery under

Montana law. Luciano v. Ren, 589 P.2d 1005, 1008 (Mont. 1979) (noting that “a

public officer acting under authority of law and without malice is not liable for


                                          6
assault and battery provided he uses no more force than is reasonably necessary

under the circumstance to properly perform his official duties”) (citation omitted).

      The District Court’s grant of summary judgment is AFFIRMED.




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