Krystal Lopez v. City of Glendora

FILED NOT FOR PUBLICATION MAY 14 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRYSTAL LOPEZ, No. 19-55292 Plaintiff-Appellee, D.C. No. 2:17-cv-06843-ODW-RAO v. CITY OF GLENDORA; et al., MEMORANDUM* Defendants-Appellants, and MATTHEW WENDLING; DOES, 1 through 10, Defendants.

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding Submitted May 1, 2020** Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Before: THOMAS, Chief Judge, and FERNANDEZ and W. FLETCHER, Circuit Judges.

The City of Glendora, Lisa Rosales, and Raymond Kodadek1 filed this interlocutory appeal2 from the district court’s partial denial of their motion for summary judgment on qualified immunity grounds. Krystal Lopez alleged a violation of her civil rights under 42 U.S.C. § 1983 and associated state law claims arising from a traffic stop. Kodadek asserts he is entitled to qualified immunity on Lopez’s claims that he attempted to conduct a pat-down search without reasonable suspicion, used excessive force, and retaliated against her for protected speech.3 We affirm.

In determining if qualified immunity applies, “we consider (1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer’s alleged misconduct.” Estate of Lopez ex rel.

Lopez v. Gelhaus, 871 F.3d 998, 1005 (9th Cir. 2017) (internal quotation marks omitted). A constitutional right is clearly established at the time of the incident only if “the right’s contours [are] sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” Kisela v. Hughes, __ U.S. __, __, 138 S. Ct. 1148, 1153, 200 L. Ed. 2d 449 (2018) (per curiam) (internal quotation marks omitted). This means that the reviewing court must not define the right “at a high level of generality”; there must be clearly established law providing guidance based on similar factual scenarios. Id. at __, 138 S. Ct. at 1152 (internal quotation marks omitted).

A reasonable jury could conclude that the pat-down violated Lopez’s constitutional rights. An officer must rely on specific and articulable facts that a particular suspect is armed and dangerous to justify a pat-down at the scene.

Thomas, 818 F.3d at 875–76; see also Terry v. Ohio, 392 U.S. 1, 23–24, 88 S. Ct. 1868, 1881, 20 L. Ed. 2d 889 (1968).

Kodadek’s suspicion that Lopez was armed essentially came down to her (1) being an African-American from Pasadena, (2) wearing a t-shirt, and (3) being driven in an area that had a history of burglaries. But, taken together, broad racial profiles,4 the wearing of a t-shirt,5 and the nature of the suspected crime6 are insufficient for reasonable suspicion. That law was clearly established at the time of the incident, and the district court correctly found that, on Lopez’s alleged facts, any reasonable officer would have realized his actions violated the law.

As to Lopez’s claim for excessive force, we look to several factors, “including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (1989).

Based on the evidence, a jury could conclude the force used by the officer was not reasonable. Moreover, the law was clearly established that the use of this degree of force was unreasonable under the circumstances. See Thomas, 818 F.3d at 885; Meredith v. Erath, 342 F.3d 1057, 1060–61 (9th Cir. 2003); see also Kisela, __ U.S. at __, 138 S. Ct. at 1153.

Finally, we affirm the district court as to Lopez’s retaliation claim.

Retaliation requires Lopez to prove “that (1) the officer’s conduct ‘would chill or silence a person of ordinary firmness from future First Amendment activities,’ and (2) the officer’s desire to chill speech was a ‘but-for cause’ of the adverse action.”

Sharp v. County of Orange, 871 F.3d 901, 919 (9th Cir. 2017).7 A jury could reasonably conclude that Kodadek’s excessive use of force was retaliatory because it immediately followed Lopez’s request for a female officer to pat her down and she was, at most, passively resisting at the time. See Velazquez v. City of Long Beach, 793 F.3d 1010, 1022–23 (9th Cir. 2015); Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990). These cases condemning “any action to punish or deter” a suspect’s speech were clearly established law at the time of the incident.

Duran, 904 F.2d at 1378.

AFFIRMED.