OpenJurist

919 F2d 144 Alexander v. City & County of San Francisco

919 F.2d 144

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Joseph ALEXANDER, Jr., Plaintiff-Appellant,
v.
CITY & COUNTY OF SAN FRANCISCO, et al., Defendants-Appellees.

No. 88-15812.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 16, 1990.*
Decided Nov. 20, 1990.

Before FLETCHER, WIGGINS and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Joseph Alexander, Jr., appeals pro se the district court's grant of summary judgment in his 42 U.S.C. Sec. 1983 action in favor of the City and County of San Francisco, Officer Anthony LaRocca, and Judge George Choppelas. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and we affirm.

3

We review the district court's grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 110 S.Ct. 3217 (1990). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there is a genuine issue as to any material fact and, if not, whether the moving party was entitled to judgment as a matter of law. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).

4

On January 7, 1983, two police officers from the San Francisco Police Department responded to a call regarding a man with a gun at Alexander's residence. When the police arrived, they observed a man holding a rifle and arguing with a woman at the front door of the house. Officer LaRocca identified himself as a police officer and advised the man to drop the gun. Both the man and the woman then went inside the house. Other officers arrived on the scene and surrounded the house. The officers entered the house and ordered the occupants out. Alexander was identified as the man who had been holding the rifle and was arrested. The police searched the house, and found the rifle in the bedroom.

1. Municipal Liability

5

Municipal liability under 42 U.S.C. Sec. 1983 can only be imposed for injuries inflicted pursuant to an official government policy or custom. Monell v. Department of Soc. Servs., 436 U.S. 658, 690-91 (1978). Alexander has failed to allege that any actions in this case were taken pursuant to an official policy or custom of the City and County of San Francisco. Therefore, the district court did not err in dismissing this action against the city.

2. Judicial Immunity

6

Alexander alleged that Judge George Choppelas deprived him of due process due to his refusal to return Alexander's rifle which was seized from his house without a search warrant. Because absolute judicial immunity protects a judge from section 1983 liability while functioning in a judicial capacity, Forrester v. White, 484 U.S. 219, 226-27 (1988), the district court did not err in dismissing Judge Choppelas as a defendant in this action.

3. False Imprisonment

7

Alexander contends that he was falsely imprisoned for 72 hours following his arrest. To make out a claim for false imprisonment, Alexander is required to show that Officer LaRocca had no reasonable cause to believe that Alexander had committed a felony in his presence. See Cal.Pen.Code Secs. 417(b), 836. "The issue of whether an arrest was made with reasonable cause is an issue of law to be decided by the court." Giannis v. City & County of San Francisco, 78 Cal.App.3d 219, 225, 144 Cal.Rptr. 145, 148 (1978).

8

Officer LaRocca responded to a call from a woman at Alexander's house claiming there was an unwelcome guest at the house with a gun. Officer LaRocca presented evidence that he believed Alexander to be the man wielding the rifle when the police arrived at the house. Alexander failed to refute LaRocca's allegation that he was in fact the man outside of the house with the rifle. Alexander merely takes issue with Officer LaRocca's initial physical description of the man with the rifle as indicated in LaRocca's police report. Moreover, Alexander does not deny that the rifle was found in the house immediately after the incident, and claims that it is his rifle. Officer LaRocca had probable cause to arrest Alexander. Therefore, the district court did not err in granting summary judgment against Alexander in his false imprisonment claim.

4. Illegal Search and Seizure

9

Alexander next contends that the police unlawfully searched his house and seized his rifle from the house. Officers who have effected an arrest at a residence may conduct a limited search for persons who may destroy evidence or pose a threat to the officers' safety, if the officers can point to articulable facts that support their belief that others may be on the premises. United States v. Hoyos, 892 F.2d 1387, 1396 (9th Cir.1989) (citations omitted), cert. denied. 111 S.Ct. 80 (1990). Here, Officer LaRocca observed Alexander standing outside of his house with a rifle. After Alexander reentered the house and was ordered to come out, he emerged without the rifle. The police had sufficient reason to believe that the rifle was in the house, possibly in the hands of another individual. The search of the house and seizure of the weapon found in plain view, served to protect the officers and was warranted under the circumstances of this case. Therefore, the district court did not err in granting summary judgment against Alexander in his unlawful search and seizure claim.

5. Excessive Force

10

Finally, Alexander contends that the police used excessive force in the course of his arrest. Determining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of the 'nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake. Graham v. Connor, 109 S.Ct. 1865, 1871 (1989) (citations omitted); Hansen v. Black, 885 F.2d 642, 645 (9th Cir.1989). The Fourth Amendment inquiry is one of objective reasonableness under the circumstances. Graham, 109 S.Ct. at 1873; Hansen, 885 F.2d at 645. Moreover, qualified immunity is a defense to a claim of excessive force. White by White v. Pierce, 797 F.2d 812, 816 (9th Cir.1986).

11

Although Alexander has alleged that the police sprayed him with mace and fractured his nose, he has presented no evidence raising a triable issue of fact to support his contentions. The district court did not err in granting summary judgment in favor of Officer LaRocca.

12

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3