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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL ANDREWS,
Plaintiff-Appellee,
CITY OF HENDERSON; PHILLIP WATFORD; KARL LIPPISCH,
Defendants-Appellants,
and
HENDERSON POLICE DEPARTMENT; JOSEPH W. EBERT; R. ADAMS; K. LAPEER; K. LIPPISCH,
Defendants.
No. 20-17053
D.C. No.
2:18-cv-01625- JCM-BNW
OPINION
Appeal from the United States District Court for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted August 9, 2021 San Francisco, California
Filed May 23, 2022
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2 ANDREWS V. CITY OF HENDERSON
Before: Eugene E. Siler,* Morgan Christen, and
Danielle J. Forrest, Circuit Judges.
Opinion by Judge Forrest
SUMMARY**
Civil Rights
The panel affirmed the district court’s denial, on
summary judgment, of qualified immunity to two police
detectives in an action brought pursuant to 42 U.S.C. § 1983
alleging defendants used excessive force, in violation of the
Fourth Amendment, when, without warning, they tackled
plaintiff to the ground, fracturing his hip.
Defendants believed they had probable cause to arrest
plaintiff for a series of armed robberies and forcibly tackled
him as he was leaving a Nevada state courthouse. The panel
held that the use of force was substantial. Although plaintiff
was suspected of a serious crime, viewing the evidence in
his favor, the detectives knew that he was not armed and was
not posing an immediate threat to anyone as he exited the
courthouse. Under these circumstances, a reasonable jury
could find that the degree of force used against plaintiff
violated his Fourth Amendment right against excessive
force, and the detectives were not entitled to summary
* The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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ANDREWS V. CITY OF HENDERSON 3
judgment on the question of whether they committed a
constitutional violation.
The panel further held that Blankenhorn v. City of
Orange, 485 F.3d 463 (9th Cir. 2007) clearly established—
and thus put a prudent officer on notice—that an officer
violates the Fourth Amendment by tackling and piling on top
of a relatively calm, non-resisting suspect who posed little
threat of safety without any prior warning and without
attempting a less violent means of effecting an arrest.
The panel held that it lacked pendent appellate
jurisdiction over the district court’s denial of the City of
Henderson’s separate motion for summary judgment
because the issue of the City’s § 1983 municipal liability was
not inextricably intertwined with the detectives’ claim of
qualified immunity.
COUNSEL
Michael J. Oh (argued), Senior Assistant City Attorney;
Nicholas G. Vaskov, City Attorney; Office of the City
Attorney, Henderson, Nevada; for Defendants-Appellants.
Peter Goldstein (argued), Peter Goldstein Law Corp., Las
Vegas, Nevada, for Plaintiff-Appellee.
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4 ANDREWS V. CITY OF HENDERSON
OPINION
FORREST, Circuit Judge:
Plaintiff Daniel Andrews exited a Nevada state
courthouse and, without warning, two plainclothes
detectives tackled him to the ground, fracturing his hip.
Andrews was not resisting, fleeing, or committing a crime.
Moreover, because he had just passed through the
courthouse’s security checkpoint, including a metal detector
and x-ray scanner, the detectives knew that Andrews was
unarmed. Andrews sued the detectives and the City of
Henderson (collectively, Defendants) under 42 U.S.C.
- 1983 for excessive force in violation of the Fourth
Amendment. The detectives moved for summary judgment
arguing that they are protected by qualified immunity, and
the City moved for summary judgment arguing Andrews
could not establish municipal liability under any of the
theories that he advanced. The district court denied the
detectives’ motion and denied the City’s motion except as to
Andrews’s ratification theory. We affirm.
- Background
- Factual History1
After a series of armed robberies at various businesses in
Henderson, Nevada, detectives with the Henderson Police
1 Because this case comes to us on review of the district court’s
ruling on Defendants’ motion for summary judgment, we view the facts
in the light most favorable to Andrews. Rice v. Morehouse, 989 F.3d
1112, 1120 (9th Cir. 2021). But “[w]e do not credit a party’s version of
events that the record, such as an unchallenged video recording of the
incident, ‘quite clearly contradicts.’” Id. (quoting Scott v. County of San
Bernardino, 903 F.3d 943, 952 (9th Cir. 2018)).
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ANDREWS V. CITY OF HENDERSON 5
Department (HPD) began surveilling a woman suspected of
assisting a man with a recent robbery. On January 3, 2017,
the woman left a gas station in a car driven by an unidentified
man, and several plainclothes detectives followed behind.
The detectives learned from the lead detective on the case
that the driver was Andrews and that they had probable cause
to arrest him for the armed robberies. The detectives
followed the pair to the Henderson Justice Facility parking
lot and watched as they exited the vehicle.
The detectives observed Andrews and the woman walk
into the Henderson Municipal Courthouse. To enter the
courthouse, the pair had to pass through a security
checkpoint that included a metal detector and x-ray scanner.
One detective followed Andrews and the woman into the
courthouse and tracked their location. The other detectives
waited outside so they could arrest Andrews after he exited
the courthouse because they knew he would be unarmed at
that point, having passed through the courthouse’s metal
detectors. All of the detectives were in plain clothes.
Twenty minutes after entering the courthouse, Andrews
and the woman reemerged, and Detectives Phillip Watford
and Karl Lippisch walked slowly toward them without
identifying themselves. When Detective Watford was
approximately a foot away from Andrews, he lunged and
tackled him to the ground. Detective Lippisch also jumped
toward Andrews and Detective Watford and landed on top
of them as they fell. Detective Lippisch kept his weight on
Detective Watford’s back as Detective Watford handcuffed
Andrews’s arms behind his back. The detectives’ takedown
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6 ANDREWS V. CITY OF HENDERSON
resulted in an acetabular2 fracture of Andrews’s hip, which
required two surgeries.
After the arrest, Detective Watford prepared a “use of
force” report detailing the event. Several of Detective
Watford’s supervisors reviewed the report and video footage
of the arrest and determined that the use of force did not
violate HPD policy or warrant further action.
- Procedural History
Andrews sued Detectives Watford and Lippisch and the
City under 42 U.S.C. § 1983, asserting a Fourth Amendment
excessive-force claim against the detectives and a
municipal-liability claim against the City. Andrews alleged
three theories of municipal liability: (1) failure to train;
(2) unconstitutional custom, practice, or policy; and
(3) ratification. The Defendants moved for summary
judgment, the detectives arguing that they were entitled to
qualified immunity and the City arguing that it did not fail to
train its officers on the proper use of force or have a policy
or custom allowing officers to use excessive force. The City
also contended that Andrews did not identify an individual
with final policy-making authority who ratified the
detectives’ allegedly unconstitutional conduct.
The district court denied the detectives’ motion for
summary judgment raising qualified immunity. It concluded
that there was a genuine factual dispute regarding whether
the detectives used objectively reasonable force against
Andrews. It also determined that the law in this circuit,
including Blankenhorn v. City of Orange, 485 F.3d 463, 477,
2 An acetabular fracture is caused by a high-energy impact to the
bone.
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ANDREWS V. CITY OF HENDERSON 7
481 (9th Cir. 2007), “clearly established” that “force is only
justified when there is a need for force” and that it is
excessive to “gang tackle” a person “who was suspected of
a minor crime, posed no apparent threat to officer safety, and
could be found not to have resisted arrest.” Viewing the facts
in the light most favorable to Andrews, the district court
found that the detectives knew Andrews was unarmed and
was not resisting arrest, attempting to flee, or committing a
crime when they arrested him. Thus, the district court
concluded that “there was simply no clear need for force.”
The district court granted in part and denied in part the
City’s motion for summary judgment. It rejected Andrews’s
longstanding-policy-or-practice and failure-to-train theories,
concluding that he failed to present any supporting evidence.
But it denied summary judgment on Andrews’s ratification
theory, concluding that the detectives’ contradicting
versions of events, “in addition to the fact that the
[detectives] were not disciplined, raises a genuine dispute as
to whether their decision to use excessive force was
ratified.”3 Defendants timely appealed.
- Discussion
- Qualified Immunity
Qualified immunity shields government officials from
civil damages unless an official “violate[s] a clearly
established constitutional right.” Monzon v. City of
Murrieta, 978 F.3d 1150, 1156 (9th Cir. 2020). Thus, in
3 Although the City argued that Andrews failed to “put forth
evidence indicating that [the detectives’] superiors are final
policymakers,” the district court declined to address this point because
the City raised it in reply, which denied Andrews “an adequate
opportunity to respond.”
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8 ANDREWS V. CITY OF HENDERSON
determining whether a police officer is entitled to qualified
immunity, courts ask two questions: (1) whether “the
officer’s conduct violated a constitutional right[,]” and
(2) “whether the right was clearly established in light of the
specific context of the case.” Rice v. Morehouse, 989 F.3d
1112, 1120 (9th Cir. 2021) (quoting Tuuamalemalo v.
Greene, 946 F.3d 471, 476 (9th Cir. 2019)).
Under the collateral order doctrine, we have jurisdiction
over interlocutory appeals from denials of qualified
immunity. Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d
938, 944–45 (9th Cir. 2017); see 28 U.S.C. § 1291. We have
the authority to review such denials “because [q]ualified
immunity is immunity from suit, not just a defense to
liability,” and “[t]he immunity is effectively lost if a case is
erroneously permitted to go to trial.” Isayeva, 872 F.3d at
944–45 (internal quotation marks and citations omitted). But
our jurisdictional power is limited to legal issues, not factual
disputes. Williamson v. City of Nat’l City, 23 F.4th 1146,
1151 (9th Cir. 2022). In other words, “[a] public official may
not immediately appeal a fact-related dispute about the
pretrial record, namely, whether or not the evidence in the
pretrial record was sufficient to show a genuine issue of fact
for trial.” Estate of Anderson v. Marsh, 985 F.3d 726, 731
(9th Cir. 2021) (quoting Foster v. City of Indio, 908 F.3d
1204, 1210 (9th Cir. 2018)) (internal quotation marks
omitted). But we can decide whether “taking the facts in the
light most favorable to the non-moving party, the defendants
are entitled to qualified immunity.” Isayeva, 872 F.3d at 945.
And in making this determination, we exercise de novo
review. Hines v. Youseff, 914 F.3d 1218, 1227 (9th Cir.
2019).
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ANDREWS V. CITY OF HENDERSON 9
- Fourth Amendment violation
The central question in determining whether law
enforcement officers violated the Fourth Amendment by
using excessive force is “whether the officers’ actions are
objectively reasonable in light of the facts and circumstances
confronting them.” Williamson, 23 F.4th at 1151 (internal
quotation marks and citation omitted); see also Lombardo v.
City of St. Louis, 141 S. Ct. 2239, 2242 (2021). “All
determinations of unreasonable force ‘must embody
allowance for the fact that police officers are often forced to
make split-second judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation.’” Scott v.
Henrich, 39 F.3d 912, 914 (9th Cir. 1994) (quoting Graham
- Connor, 490 U.S. 386, 396–97 (1989)).
“Neither tackling nor punching a suspect to make an
arrest necessarily constitutes excessive force.” Blankenhorn,
485 F.3d at 477 (quoting Graham, 390 U.S. at 396)
(emphasis added). Instead, whether a constitutional violation
occurred depends on “(1) the severity of the intrusion on the
individual’s Fourth Amendment rights by evaluating the
type and amount of force inflicted, (2) the government’s
interest in the use of force, and (3) the balance between the
gravity of the intrusion on the individual and the
government’s need for that intrusion.” Rice, 989 F.3d
at 1121 (quoting Lowry v. City of San Diego, 858 F.3d 1248,
1256 (9th Cir. 2017) (en banc)) (internal quotation marks
omitted). We address each of these considerations in turn.
- Type and amount of force
“We consider the ‘specific factual circumstances’ of the
case in classifying the force used.” Williamson, 23 F.4th at
1151–52 (quoting Lowry, 858 F.3d at 1256). Relevant to our
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10 ANDREWS V. CITY OF HENDERSON
analysis are the “nature and degree of physical contact” and
“the risk of harm and the actual harm experienced.” Id.
at 1152 (internal quotation marks and citations omitted).
“The presence of non-minor physical injuries . . . is certainly
relevant in evaluating the degree of the Fourth Amendment
intrusion.” Bryan v. MacPherson, 630 F.3d 805, 824–25 (9th
Cir. 2010).
A physical tackle that results in severe injury may
constitute a significant use of force. In Rice, for example, we
held that an officer’s takedown maneuver that resulted in the
suspect falling face-first onto the pavement was a
“substantial” and “aggressive” use of force where the
suspect suffered “‘extreme pain’ immediately following his
arrest and long-term physical pain for which he received
medical treatment.” 989 F.3d at 1121 (quoting Santos v.
Gates, 287 F.3d 846, 853 (9th Cir. 2002)). Likewise, in
Santos, we held that an officer’s use of force was “quite
severe” where the suspect taken to the ground “suffered a
broken vertebra which caused him both pain and
immobility.” 287 F.3d at 853–54; see also Blankenhorn,
485 F.3d at 479 (finding that officers acted unreasonably in
“gang-tackling” a plaintiff); Meredith v. Erath, 342 F.3d
1057, 1061 (9th Cir. 2003) (finding that grabbing a suspect
by the arms, forcibly throwing her to the ground, and
twisting her arms could constitute excessive force). In
contrast, in Jackson v. City of Bremerton, 268 F.3d 646, 650,
652 (9th Cir. 2001), we found that a broken finger during a
routine arrest was a “minimal” intrusion.
In this case, the detectives forcibly tackled Andrews to
the ground with enough force to fracture his hip. The injury
resulted in “excruciating pain” and required two surgeries.
Under these circumstances, we conclude that this use of
force by the detectives was “substantial” and, therefore,
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ANDREWS V. CITY OF HENDERSON 11
“must be justified by the need for the specific level of force
employed.” Rice, 989 F.3d at 1121 (quoting Santos, 287 F.3d
at 855 and Bryan, 630 F.3d at 825).
- Governmental interest
We evaluate the government’s interest in using force by
considering three primary factors: “(1) how severe the crime
at issue was, (2) whether the suspect posed an immediate
threat to the safety of the officers or others, and (3) whether
the suspect was actively resisting arrest or attempting to
evade arrest by flight.” Williamson, 23 F.4th at 1153
(internal quotation marks and citation omitted). “[T]he ‘most
important’ is the second factor—whether the suspect posed
an immediate threat to others.” Id. These factors are not
exclusive, however, and must be considered under the
totality of the circumstances, including whether “less
intrusive alternatives” were available to the officers and
whether the officers gave “proper warnings” before using
force. Rice, 989 F.3d at 1122.; see Bryan, 630 F.3d at 831
(“[W]hile by no means dispositive, that [the officer] did not
provide a warning before deploying the [taser] and
apparently did not consider less intrusive means of effecting
[plaintiff’s] arrest factor significantly into our Graham
analysis.”).
Applying these factors, we conclude that the
government’s interest in using substantial force was minimal
here. Armed robbery is a serious crime that poses an obvious
risk of violence, and this factor suggests that the government
may have an interest in using force to effect an arrest. See
S.R. Nehad v. Browder, 929 F.3d 1125, 1136 (9th Cir. 2019),
cert. denied sub nom. Browder v. Nehad, 141 S. Ct. 235
(2020). But we must consider this fact in the full context that
the officers faced, including that Andrews was not engaged
in any violent or nonviolent criminal conduct when he was
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12 ANDREWS V. CITY OF HENDERSON
tackled without warning by the detectives. Moreover, taking
the evidence in the light most favorable to Andrews, the
detectives knew that he was not armed when they tackled
him as he exited the courthouse. That is why the officers
chose to act when they did. Thus, the risk of violence
attributable to Andrews’s suspected crimes was mitigated by
the specific circumstances in which the officers chose to act.
Nor does the evidence show that Andrews otherwise
posed a threat to the officers or members of the public. He
was not exhibiting any aggressive behavior, and there were
no bystanders within his close proximity when he exited the
courthouse. And because Andrews did not know the
detectives’ identities before they tackled him, there is no
dispute that he was not resisting arrest or attempting to flee.
Additionally, the detectives do not challenge the district
court’s finding that they failed to present “undisputed facts
to suggest that tackling [Andrews] was the only option
available to them.” See Young v. County of Los Angeles,
655 F.3d 1156, 1166 (9th Cir. 2011) (“That [the defendant
employed intermediate force] given the availability of other,
less intrusive measures makes clear just how limited was the
government’s interest in the use of significant force.”);
Bryan, 630 F.3d at 831. They also do not dispute that they
gave Andrews no warning before they tackled him. See
Glenn v. Washington County, 673 F.3d 864, 876 (9th Cir.
2011) (“[W]arnings should be given, when feasible, if the
use of force may result in serious injury.” (internal quotation
marks and citation omitted)). Given this broader context, the
nature of Andrews’s suspected crime does not establish a
strong governmental interest in using significant physical
force against him.
In arguing to the contrary, the detectives assert that they
had a strong interest in using force because Andrews was
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ANDREWS V. CITY OF HENDERSON 13
suspected of committing multiple armed robberies and,
therefore, posed “legitimate, significant risks” to the safety
of others outside the courthouse. We do not suggest that the
severity of the suspected crime has no bearing on whether a
suspect poses a threat to officers or the public—of course it
does. See Browder, 929 F.3d at 1136; Monzon, 978 F.3d
at 1157. But the serious nature of a suspected crime does not
necessarily give rise to a strong governmental interest in the
use of significant physical force. See Browder, 929 F.3d
at 1136.
Our precedent requires that we focus on the immediate
threat of harm. That is, we consider the “danger a suspect
poses at the time force is applied.” Id. (emphasis added); see
- (“Even if [the suspect] had made felonious threats or
committed a serious crime prior to [the officer’s] arrival, he
was indisputably not engaged in any such conduct when [the
officer] arrived, let alone when [the officer] fired his
weapon.”); Smith v. City of Hemet, 394 F.3d 689, 703 (9th
Cir. 2005) (holding that the suspected domestic violence
crime provided minimal justification for the officers’ use of
force where the suspect “was standing on his porch alone and
separated from his wife” and “had no guns or weapons in his
possession”).
Thus, as we have explained, although Andrews was
suspected of a serious crime, viewing the evidence in his
favor, the detectives knew that he was not armed and was
not posing an immediate threat to anyone as he exited the
courthouse. Accordingly, because any immediate threat to
safety was minimal, “the nature of the crime at issue
provides little, if any, basis for the officers’ use of physical
force.” Smith, 394 F.3d at 703.
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14 ANDREWS V. CITY OF HENDERSON
- Balance of interests
Finally, we weigh whether the detectives’ “degree of
force used was warranted by the governmental interests at
stake,” Deorle v. Rutherford, 272 F.3d 1272, 1282 (9th Cir.
2001), and we conclude that it is not. The detectives’ interest
in using significant force against Andrews is undermined by
their knowledge that he was unarmed; his lack of any
aggressive, threatening, or evasive behavior; and the
detectives’ failure to provide any prior warning or consider
less intrusive alternatives before forcibly tackling him to the
ground. Under these circumstances, a reasonable jury could
find that the degree of force used against Andrews violated
his Fourth Amendment right against excessive force, and the
detectives are not entitled to summary judgment on the
question of whether they committed a constitutional
violation. See Rice, 989 F.3d at 1124.
- Clearly Established Right
Even if a government official violates a constitutional
right, the official is entitled to qualified immunity unless the
violated right was clearly established at the time of the
incident. Id. at 1120. A constitutional right is clearly
established if it is “sufficiently clear that every reasonable
official would have understood that what he is doing violates
that right.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7
(2021) (per curiam) (quoting Mullenix v. Luna, 577 U.S. 7,
11 (2015)).
The Supreme Court has increasingly reiterated that to
meet this standard a right “must be defined with specificity”
rather than “at a high level of generality.” City of Escondido
- Emmons, 139 S. Ct. 500, 503 (2019) (per curiam) (citation
omitted); see City of Tahlequah v. Bond, 142 S. Ct. 9, 11
(2021). “Such specificity is ‘especially important in the
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ANDREWS V. CITY OF HENDERSON 15
Fourth Amendment context,’ where it is ‘sometimes difficult
for an officer to determine how the relevant legal doctrine,
here excessive force, will apply to the factual situation the
officer confronts.’” Bond, 142 S. Ct. at 11–12 (quoting
Mullenix, 577 U.S. at 12). Thus, “[a]lthough this Court’s
case law does not require a case directly on point for a right
to be clearly established, existing precedent must have
placed the statutory or constitutional question beyond
debate.” Rivas-Villegas, 142 S. Ct. at 7–8 (quoting White v.
Pauly, 137 S. Ct. 548, 551 (2017)) (internal quotation marks
omitted).
In Blankenhorn, we analyzed whether a three-officer
“gang tackle”4 of a person suspected of misdemeanor
trespass at a shopping mall amounted to excessive force
under the Fourth Amendment. 485 F.3d at 467–70. In that
case, when the suspect refused an officer’s orders to kneel
and be handcuffed, several officers “immediately . . . jumped
on [him]” and tackled him to the ground while punching him
several times in the face and body. Id. at 469–70.
In concluding that a rational jury could find that the
officers’ use of force was objectively unreasonable, we
found it significant that the severity of the suspected offense
was minimal and the officers’ “only bases for suspecting that
[the plaintiff] was interfering with mall business were his
presence at the mall, his previous banishment, his known
gang association, and the attention by security.” Id. at 478.
We also concluded that the suspect “did not pose a serious
threat to the officers’ or others’ safety” where the officers
stood around with their arms folded and did not prevent mall
4 Blankenhorn does not define “gang tackle,” but it is clear that this
term refers to an incident where more than one officer uses bodily force
to bring an individual “to the ground.” 485 F.3d at 478.
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16 ANDREWS V. CITY OF HENDERSON
patrons from entering the area. Id. Finally, although the
suspect verbally refused to comply with one officer’s
direction that he kneel down, we held that a reasonable jury
could conclude that the officers’ use of force was
unreasonable because they did not employ a lesser means of
force before immediately tackling the plaintiff, and the
plaintiff did not resist a lesser means of force before he was
tackled. Id. at 478–79.
We hold that Blankenhorn clearly established—and thus
“put a prudent officer on notice”—that an officer violates the
Fourth Amendment by tackling and piling on top of a
“relatively calm,” non-resisting suspect who posed little
threat of safety without any prior warning and without
attempting a less violent means of effecting an arrest.
485 F.3d at 478, 481. As discussed above, these are the basic
facts of this case when viewed in the light most favorable to
Andrews. He was not fleeing, resisting arrest, or actively
committing a crime, and the detectives knew that he was
unarmed and specifically planned their tackle for that
moment because of that knowledge. Accordingly, after
Blankenhorn, it was “beyond debate” that their actions were
objectively unreasonable under the circumstances. White,
137 S. Ct. at 551.
The only relevant distinction between this case and
Blankenhorn is the nature of the suspected crimes—trespass
versus armed robbery. The detectives claim that this
distinction warrants reversal because Blankenhorn is only
factually similar when analyzed at an inappropriately “high
level of generality.” Rivas-Villegas, 142 S. Ct. at 8. We
reject this assertion. In both cases, the suspects posed no
immediate threat to the officers or public safety when they
were arrested. And other than the nature of the suspected
crime, the facts of this case are either analogous to or more
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ANDREWS V. CITY OF HENDERSON 17
favorable to Andrews than the facts in Blankenhorn. For
example, the suspect in Blankenhorn was “rude,
uncooperative, and verbally abusive” before his arrest.
485 F.3d at 469. But here, Andrews had no interaction with
the detectives before they tackled him so they had no sense
of whether he would be cooperative or not. Accordingly, we
hold that Blankenhorn involved sufficiently similar facts to
“move [this] case beyond the otherwise hazy borders
between excessive and acceptable force.” Rivas-Villegas,
142 S. Ct. at 9.
This conclusion is further buttressed by our precedent
clearly establishing that a suspect’s previous violent conduct
does not justify non-trivial force where the suspect poses no
immediate safety threat. See, e.g., Smith, 394 F.3d at 702. In
Smith, for example, a woman called the police to report
domestic abuse by her husband and informed them “that [he]
did not have a gun” and “there were no weapons in the
house.” Id. at 693. While arresting the husband, the officers
pepper sprayed him, threw him to the ground, and ordered a
dog to attack him. Id. at 694. In holding that the officers used
excessive force, we explained that the severity of the
husband’s crime provided “little” justification for the
officers’ use of substantial force because “[the husband] was
standing on his porch alone and separated from his wife,”
and because “[he] had no guns or other weapons in his
possession and there were none in the house.” Id. at 702–03.
There, as in this case, we held that the government’s interest
in using significant force was low as there was no “basis for
believing that [the husband] was armed or that he posed an
immediate threat to anyone’s safety.” Id. at 702.
We have held this general principle to be true even in
cases where the officers did know that a suspect was armed.
See George v. Morris, 736 F.3d 829, 839 (9th Cir. 2013)
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18 ANDREWS V. CITY OF HENDERSON
(finding that officers used excessive force against a
knowingly armed domestic violence suspect where his wife
“was unscathed and not in jeopardy when deputies arrived,”
and the man was “not in the vicinity” but “on the couple’s
rear patio.”); Glenn, 673 F.3d at 873 (finding that the
officer’s use of a bean bag gun against a suicidal suspect
brandishing a knife was excessive where he was not
threatening anyone but himself); Harris v. Roderick,
126 F.3d 1189, 1203 (9th Cir. 1997) (finding that deadly
force against an armed suspect who had engaged in a shoot
out the previous day was not justified where he was running
back inside the cabin where he resided and made no
threatening movements). Thus, in addition to Blankenhorn,
we find this precedent provided the detectives with ample
notice that their surprise takedown violated Andrews’s
Fourth Amendment rights. See Rivas-Villegas, 142 S. Ct.
at 9.
In sum, it was clearly established before the events of
this case that the Fourth Amendment prohibits multiple
officers from physically tackling a “relatively calm” suspect
without providing any warning where the suspect is not
posing an immediate danger to anyone, resisting arrest, or
trying to flee unless the officers first attempt a less intrusive
means of arrest. Blankenhorn, 485 F.3d at 481.
For all these reasons, we affirm the district court’s denial
of qualified immunity at summary judgment.
- Pendent Jurisdiction
Although this case comes before us on interlocutory
appeal, the City requests that we exercise pendant
jurisdiction over the district court’s denial of its separate
motion for summary judgment on Andrews’s ratification
theory. “A municipality is not entitled to assert the defense
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ANDREWS V. CITY OF HENDERSON 19
of qualified immunity.” Hernandez v. City of San Jose,
897 F.3d 1125, 1139 (9th Cir. 2018) (quoting Huskey v. City
of San Jose, 204 F.3d 893, 902 (9th Cir. 2000)). “Thus the
rule . . . that individual defendants can appeal from the denial
of a motion for a summary judgment to obtain review of the
merits of their qualified immunity defense does not empower
a federal court to consider the denial of a municipality’s
motion for a summary judgment in a § 1983 action.” Huskey,
204 F.3d at 902.
Nevertheless, a court may exercise pendent jurisdiction
and “review an otherwise non-appealable ruling when it is
‘inextricably intertwined’ with . . . the order properly before
[the court].” Doe v. Regents of Univ. of Cal., 891 F.3d 1147,
1154 (9th Cir. 2018) (quoting Meredith v. Oregon, 321 F.3d
807, 812–13 (9th Cir. 2003)). This standard is met only when
the issues are “(a) . . . so intertwined that [the Court] must
decide the pendent issue in order to review the claims
properly raised on interlocutory appeal, or (b) resolution of
the issue properly raised on interlocutory appeal necessarily
resolves the pendent issue.” Hernandez, 897 F.3d at 1139–
- We interpret this standard “narrowly” and apply it only
in “extremely limited” circumstances. Id. at 1139 (quoting
Puente Ariz. v. Arpaio, 821 F.3d 1098, 1109 (9th Cir. 2016)).
We conclude that the City’s § 1983 municipal liability is
not inextricably intertwined with the detectives’ claim of
qualified immunity. The detectives’ qualified immunity
defense turns on whether they violated clearly established
federal law, but the City’s liability turns on whether an
“official with final policy-making authority ratified a
subordinate’s unconstitutional decision or action and the
basis for it.” Gillette v. Delmore, 979 F.2d 1342, 1346–47
(9th Cir. 1992). We need not decide the ratification issue in
order to resolve whether the detectives are entitled to
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20 ANDREWS V. CITY OF HENDERSON
qualified immunity. See Hernandez, 897 F.3d at 1139–40.
Nor does our qualified immunity decision “necessarily
resolve[]” whether the City ratified the detectives’
unconstitutional use of force. See id.; Swint v. Chambers
County Comm’n, 514 U.S. 35, 50–51 (1995). Accordingly,
we lack pendent appellate jurisdiction over the denial of the
City’s motion for summary judgment on Andrews’s
ratification theory.
AFFIRMED.