NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCUS D. BRICENO, 

Plaintiff-Appellee, 

 v. 

BLAKE WILLIAMS, San Diego Police 

Officer, 

Defendant-Appellant, 

and 

CHRIS CUMMINGS, San Diego Police 

Officer, 

Defendant.

No. 21-55624 

D.C. No. 

3:16-cv-01665-JAH-AGS 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

John A. Houston, District Judge, Presiding

Argued and Submitted March 9, 2022

Pasadena, California

Before: BERZON, TALLMAN, and FRIEDLAND, Circuit Judges.

Dissent by Judge TALLMAN.

In this § 1983 excessive force case, Blake Williams, an officer with the San 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAY 20 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Diego Police Department, appeals the denial of his motion for summary judgment 

based on qualified immunity.

Our jurisdiction over an interlocutory appeal from the denial of summary 

judgment based on qualified immunity is limited. See Mitchell v. Forsyth, 472 U.S. 

511, 530 (1985); Johnson v. Jones, 515 U.S. 304, 313–14 (1995). We cannot hear

challenges to the district court’s factual determinations, “namely, whether or not 

the evidence in the pretrial record was sufficient to show a genuine issue of fact for 

trial.” Est. of Anderson v. Marsh, 985 F.3d 726, 731 (2021) (quoting Foster v. City 

of Indio, 908 F.3d 1204, 1210 (9th Cir. 2018) (per curiam)). Our jurisdiction is

“confined to the question” whether, “assuming all factual disputes are resolved, 

and all reasonable inferences are drawn, in plaintiff’s favor,” the defendant “would 

be entitled to qualified immunity as a matter of law.” George v. Morris, 736 F.3d 

829, 836 (2013) (quoting Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1068 

(9th Cir. 2012)). On the merits of the qualified immunity analysis, we ask two 

questions: (1) Did the officer’s conduct violate a constitutional right? (2) Was the 

right clearly established at the time of the alleged misconduct? See Glenn v. 

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

1. Addressing the constitutional violation prong, Williams largely premised 

his argument that he did not violate Briceno’s constitutional rights on the 

undisputed facts that Briceno had run from Williams and that Briceno’s hands 
3 

were beneath his body when Williams struck him. Williams also made

impermissible factual contentions—for example, maintaining that he commanded

Briceno to give him his hands even though the district court had determined that 

that fact was contested by Briceno’s testimony to the contrary. These deviations do

not so poison the well as to eliminate appellate jurisdiction entirely over the 

constitutional violation prong. George, 736 F.3d at 837.

Similarly, although Williams again quarreled with the district court’s

determinations regarding which facts were contested for purposes of the clearlyestablished law prong, we “discern enough of a distinct legal claim” based on 

properly characterized facts to “entertain” this prong of the qualified immunity

analysis as well. Id.

We thus have jurisdiction over Williams’s appeal, viewing the disputed facts 

as determined by the district court in the light most favorable to Briceno.

2. Turning to the merits of prong one of the qualified immunity issue: A 

police officer’s use of force during an arrest is reasonable, and therefore lawful, 

only if the government interests at stake justify the “nature and quality of the 

intrusion” into the suspect’s Fourth Amendment rights. See Green v. City & 

County of San Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014) (quoting Graham v. 

Connor, 490 U.S. 386, 396 (1989)). Punching a face-down suspect constitutes

significant force. See Young v. County of Los Angeles, 655 F.3d 1156, 1161 & n.6 
4 

(9th Cir. 2011); Glenn, 673 F.3d at 871. Whether that “degree of physical 

coercion” was justified by “countervailing governmental interests” is assessed by 

considering three non-exhaustive factors: (1) the severity of the crime at issue, (2) 

whether the suspect posed an immediate threat to the officer or anyone else, and 

(3) whether the suspect was actively resisting or attempting to evade arrest. See

Graham, 490 U.S. at 396.

None of these factors justifies the type and degree of force employed by

Officer Williams. First, neither crime Williams posits is serious. Consuming 

alcohol in public can violate San Diego Municipal Code § 56.54(b), punishable as 

a civil infraction or misdemeanor.

1 But it is doubtful this crime was “at issue.” The 

cited provision punishes consumption, not possession of an open container, and

Officer Williams does not claim he saw Briceno drink alcohol in public. The 

Fourth Amendment allows a warrantless arrest for the commission of a 

misdemeanor only if the officer has “probable cause to believe that an individual 

has committed” the offense “in his presence.” Atwater v. City of Lago Vista, 532 

U.S. 318, 354 (2001). Even if public consumption were at issue, there is no 

evidence that Briceno was intoxicated, and the crime would certainly not have 

been serious. See Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002) (holding that 

1 See San Diego City Att’y’s Off., Fact Sheet: What Does the “Alcohol Ban” Mean 

to Me?, https://www.sandiego.gov/sites/default/files/legacy/cityattorney/pdf/

reports/alcoholbanfactsheet.pdf.
5 

when a suspect appears, “[a]t most,” “guilty of public intoxication,” the “crime at 

issue [i]s not at all serious”).

The second crime Williams raises is the misdemeanor of resisting or 

delaying Officer Williams in carrying out his duty to investigate. See Cal. Penal 

Code § 148(a)(1). Williams presents no argument for why this provision should be 

considered a serious crime for purposes of the Graham analysis. Instead, he argues

only that he had probable cause to believe Briceno violated section 148(a)(1) when 

Briceno ran away. Establishing probable cause does not mean the crime for which 

probable cause is established is serious, as the two issues “require quite different 

inquiries.” Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004). The 

“commission of a misdemeanor offense,” though “not to be taken lightly,” 

“militates against finding the force used to effect an arrest reasonable where the 

suspect was also nonviolent and ‘posed no threat to the safety of the officers or 

others.’” Bryan v. MacPherson, 630 F.3d 805, 828–29 (9th Cir. 2010) (citation 

omitted). We hold that Briceno’s running from Officer Williams, even if a

misdemeanor under California Penal Code section 148(a)(1), was not a serious

crime.

2

2 We note that, on the facts most favorable to Briceno, it is questionable whether 

this offense was “at issue.” Officer Williams stated at some points that, in their 

original encounter, Briceno was not detained and was free to leave. If that is so, it 

is unclear how running, rather than walking, away could constitute the crime of 
6 

Second, it was not “objectively reasonable under the circumstances” for 

Williams to believe Briceno “posed an immediate threat to [his] safety.” Hayes v. 

County of San Diego, 736 F.3d 1223, 1233 (9th Cir. 2013). Because 

reasonableness “must be judged from the perspective of a reasonable officer on the 

scene,” Graham, 490 U.S. at 396, we “cannot consider evidence of which the 

officers were unaware,” Glenn, 673 F.3d at 873 n.8. Officer Williams did not know 

Briceno had a small keychain knife in his pocket. More importantly, the district 

court found a factual dispute over Williams’s “purported concern” that Briceno 

was “reaching for a weapon,” because neither Williams nor any other officer ever 

searched Briceno for weapons and Briceno testified that he was only trying to 

protect his arms. We interpret those facts favorably to Briceno and conclude that a 

reasonable officer would not have perceived Briceno to be reaching for a weapon.

Williams also asserts he told Briceno to stop resisting while punching him in 

the head.

3 But this account fails to illuminate whether Briceno was resisting such 

that a reasonable officer would have believed that, after Briceno was tackled but 

delaying, obstructing, or resisting a law enforcement officer. Flight from a police 

officer in a “high crime area” can, under some circumstances, give rise to

reasonable suspicion that some other crime has been committed. See Illinois v. 

Wardlow, 528 U.S. 119, 124–25 (2000); United States v. Brown, 925 F.3d 1150, 

1155 (9th Cir. 2019). But we are aware of no precedent that flight under those 

circumstances is itself a crime when, as here, the officer has testified that the 

suspect was free to leave.

3 We assume, as we must given Briceno’s testimony, that Williams gave no 

commands before striking Briceno in the head. 
7 

before he was punched, he posed a threat. See Zion v. County of Orange, 874 F.3d 

1072, 1076 (9th Cir. 2017).

Third, taking the facts in Briceno’s favor, Briceno was not resisting or 

evading arrest when Williams tackled and immediately punched Briceno in the 

head. Officer Williams’s argument, stripped of impermissible disputed facts, relies 

only on the facts that Briceno ignored Williams’s command to “stop” while 

running and that Briceno’s hands were beneath his body when he fell after 

Williams tackled him. On Briceno’s account, he was not directed to withdraw his 

hands from beneath him before he was punched. Leaving one’s hands where they 

are until directed to do otherwise, especially when done to protect oneself from

further injury, does not constitute active resistance to arrest. See Winterrowd v. 

Nelson, 480 F.3d 1181, 1186 (9th Cir. 2007); Smith v. City of Hemet, 394 F.3d 689, 

702 (9th Cir. 2005) (en banc). An officer’s “unannounced preferences are not 

substitutes for police orders,” and a suspect cannot be “expected to comply with 

instructions that were never given to him.” Nelson v. City of Davis, 685 F.3d 867, 

881 (9th Cir. 2012) (quoting Deorle v. Rutherford, 272 F.3d 1272, 1282 (9th Cir. 

2001)).

The Graham factors reveal Williams’s use of force was not justified.

3. At the time of this incident, it was clearly established that repeatedly 

punching a facedown suspect who is not then resisting arrest is unlawful.
8 

Blankenhorn v. City of Orange held that a police officer was not entitled to 

qualified immunity when, after tackling a suspect to the ground, he repeatedly 

punched the suspect in the head even though the suspect, who had refused to be

handcuffed before the takedown, was no longer resisting. 485 F.3d 463, 480–81

(9th Cir. 2007). 

Here, Briceno never resisted being handcuffed. On his account: He did not 

“maneuver” and then pin his hands beneath his body in “attempt to prevent the 

officer[] from handcuffing him,” see id. at 478, 480, although he did try to protect 

his stitched, bandaged hand from further injury as he fell. He was never told to 

make his hands available for cuffing. And as soon as Briceno was “slammed” facedown on the ground, Williams immediately struck him in the head and kneed him 

in the ribs.

On this account, Blankenhorn gave Officer Williams “fair notice” that his 

“conduct was unlawful.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per 

curiam). We have interpreted Blankenhorn as so holding before, and we reiterate 

that interpretation here. See Myers v. City of Hermosa Beach, 299 F. App’x 744, 

746 (9th Cir. 2008); Orr v. Brame, 727 F. App’x 265, 267 (9th Cir. 2018).

We AFFIRM the district court’s denial of summary judgment.
1

21-55624, Briceno v. Williams

TALLMAN, Circuit Judge, dissenting:

I write separately to express my increasing concern that our Circuit’s caselaw 

micromanages the police in ways that do not appreciate the dangers officers face in 

the field and fails to grant qualified immunity when officers are placed at great risk 

“in circumstances that are tense, uncertain, and rapidly evolving”—in contravention 

of the Supreme Court’s repeated admonishments. Graham v. Connor, 490 U.S. 

386, 397 (1989); see also Saucier v. Katz, 533 U.S. 194, 209 (2001) (“Not every 

push or shove, even if it may later seem unnecessary in the peace of a judge’s 

chambers, violates the Fourth Amendment.” (citation omitted)). 

This is particularly so when a lone officer is attempting to effect the arrest of 

a non-cooperating suspect. Ironically, the only person to have suffered any serious 

injury here during the foot pursuit was not the plaintiff; it was the officer. Although 

“we may not consider questions of evidentiary sufficiency, i.e., which facts a party 

may, or may not, be able to prove at trial,” Nicholson v. City of Los Angeles, 935 

F.3d 685, 690 (9th Cir. 2019) (quotation omitted), I would conclude that, adopting 

Briceno’s version of the facts, “no reasonable jury could conclude” that Officer 

Williams employed excessive force here, Scott v. Harris, 550 U.S. 372, 386 (2007). 

As the majority acknowledges, whether the use of force is objectively 

reasonable or is so excessive as to amount to a constitutional violation requires the 

FILED

MAY 20 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

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

Amendment interests against the countervailing government interests at stake.” 

Graham, 490 U.S. at 396 (quotation and citation omitted). My colleagues recognize

that this inquiry turns on the facts and circumstances of each case, and the nonexhaustive factors to be considered—which include the severity of the crime at issue 

and “the relationship between the need for the use of force and the amount of force 

used; the extent of the plaintiff’s injury; any effort made by the officer to temper or 

to limit the amount of force; the severity of the security problem at issue; the threat 

reasonably perceived by the officer; and whether the plaintiff was actively resisting.” 

Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). But they do not correctly apply 

the test with the healthy respect the Supreme Court says is due by judges when 

officers encounter active resistance in the field.

Application of these factors demonstrates the objective reasonableness of 

Officer Williams’ use of force as a matter of law. While the majority makes much 

of the fact that the crimes at issue constituted only misdemeanors, that does not end 

the inquiry. If it did, this area of the law would be far simpler. Officer Williams, a 

member of a uniformed, proactive anti-crime team tasked with patrolling high crime 

areas of San Diego in search of crimes in progress, was investigating a situation that 

any police officer would understand presented reasonable suspicion that criminal 

activity was afoot. Before Officer Williams could conduct even a cursory 
3

assessment of what might be transpiring, Briceno fled the scene, disregarding 

Officer Williams’ commands to stop and frustrating his inquiries. See Illinois v. 

Wardlow, 528 U.S. 119, 123–25 (2000). In response to Briceno’s flight, Officer 

Williams pursued him alone in the dark through the high-crime neighborhood—

injuring himself in the process when he fell chasing Briceno and losing the battery 

to his portable radio, leaving him without backup in a dark setting where no one else 

knew where he was—to regain control of the situation despite Briceno’s active 

resistance. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 921 (9th 

Cir. 2001). 

Once Officer Williams was able to bring Briceno to the ground by tackling 

him, he had not yet gained control over the situation; Briceno still had his hand 

underneath him and near his waistband, and Officer Williams knew from prior 

experience and training that “suspects have pulled guns and knives from their 

waistband.” It is irrelevant that Officer Williams did not know Briceno was indeed

carrying a small knife. Nor is it relevant that other officers subsequently failed to 

search Briceno after Officer Williams transferred Briceno to their custody. “[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.” Graham, 490 U.S. at 

396. 
4

The Supreme Court has frequently reminded us that officer safety is 

paramount in these stop-and-frisk situations. See Terry v. Ohio, 392 U.S. 1, 27 

(1968); Adams v. Williams, 407 U.S. 143, 148 (1972); Pennsylvania v. Mimms, 434 

U.S. 106, 111–12 (1977); United States v. Hensley, 469 U.S. 221, 228–29 (1985). 

Given Briceno’s flight late at night in a high-crime neighborhood and that his hand 

was located near his waistband where weapons are often kept, it was undeniably

reasonable for an officer in Officer Williams’ position to fear that Briceno might be 

armed. Reasonably fearing that Briceno could reach for a weapon in an area he 

could not see, endangering Officer Williams and any others in the area, Officer 

Williams used the minimal force of distraction strikes with his hand in order to stop 

the resistance, restrain Briceno in handcuffs, and secure the scene. Cf. Hyde v. City 

of Willcox, 23 F.4th 863, 870 (9th Cir. 2022) (holding that until the arrestee was 

“subdued and restrained, the force used by officers . . . was reasonable”). 

What else was the officer supposed to do? He did not employ pepper spray, 

a baton, a taser, or even draw his weapon. To deny qualified immunity in a case like 

this asks a lone Officer Williams to leave himself vulnerable to attack by an 

unsecured suspect with a potential weapon. Indeed, it is well-established in use of 

force cases that “the most important single element of the three specified factors [is]

whether the suspect poses an immediate threat to the safety of the officers or others.” 

Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994). Clearly, Briceno still did when 
5

the distraction strikes were delivered. For these reasons, no reasonable jury could

conclude that Officer Williams employed excessive force in violation of the Fourth 

Amendment. 

Nor in September of 2013 would clearly established law have led a reasonable 

officer to conclude that he could not use the minimal force of distraction strikes in 

order to gain compliance over a struggling suspect’s hands. The operative case, 

Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007), is distinguishable for 

at least three reasons. First, unlike the situation posed by Blankenhorn—which 

occurred in a busy shopping mall area, and there were three officers and one security 

guard present to assist in subduing the suspect, id. at 469—this was a tense, rapidly 

evolving situation, Graham, 490 U.S. at 396–97, taking place with Officer Williams 

all by himself in a dark, high-crime area after he had himself been injured in a foot 

pursuit. Second, Blankenhorn addressed a dispute as to the arrestee’s placement of 

his hands to resist arrest. See 485 F.3d at 470. In contrast, here, it was undisputed 

that Briceno’s right hand was still underneath his body, near his waistband, and 

Officer Williams had experienced “several prior instances where suspects have 

pulled guns and knives from their waistband.” Third, the arresting officers in

Blankenhorn did not indicate a concern that Blankenhorn was armed, but rather that 

the suspect was resisting arrest, while an objective officer in the position of Officer 

Williams would be rightly concerned that Briceno could access a weapon with his 
6

hand beneath his body. The United States Supreme Court has recognized that 

concern as paramount, and so should we. 

We should declare that no reasonable jury could find that Officer Williams 

violated the Fourth Amendment by employing distraction strikes to restrain Briceno 

in response to his active resistance of arrest here. We are bound to faithfully apply 

the doctrine of qualified immunity unless and until it is overruled or articulated 

differently. Cf. Baxter v. Bracey, 140 S. Ct. 1862 (2020) (Thomas, J., dissenting 

from denial of certiorari) (dissenting from denial of petition requesting the Supreme 

Court to revisit the doctrine of qualified immunity). 

Gilbert and Sullivan were right: “A policeman’s lot is not a happy one.” “The 

Pirates of Penzance,” Act II. I respectfully dissent from the majority’s erroneous 

analysis which jeopardizes the safety of officers like Williams in a dangerous

situation like this.