NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
HARSHOD MEHTA, an individual and KAUSHIKA MEHTA,

Plaintiffs-Appellants,

v. CITY OF UPLAND, a public entity; et al.,

Defendants-Appellees. No. 17-55553 D.C. No. 5:15-cv-01164-VAP-DTB
MEMORANDUM *

Appeal fromthe United States District Court for the Central District of California Virginia A. Phillips, Chief Judge, Presiding Subm itted August 29, 2018 * * Pasadena, California Before: WARDLAW, BYBEE, and IKUTA, Circuit Judges. Harshod and Kaushika Mehta appeal the district court’s grant of sum m ary judgm e nt in favor of Officer Lavell Brown and the City of Upland (“Defendants”) on their 42 U.S.C. § 1983 claim for excessive force and on their state law claim s 

# FILED
AUG 31 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

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

* * The panel unanim ously concludes this case is suitable for decision without oral argum e nt. See Fed. R. App. P. 34(a)(2).for negligence, battery, and loss of consortium . We have jurisdiction under 28

U.S.C. § 1291, and we affirm
. We review an order granting sum m ary judgm e nt de novo
. Scheuring v. Traylor Bros. , 476 F.3d 781, 784 (9th Cir. 2007). Sum m ary judgm ent should be granted if “there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). By its term s, “this standard provides that the m ere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported m otion for sum m ary judgm e nt; the requirem ent is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48 (1986) (em phasis in original). 1. Harshod Mehta alleges, under 42 U.S.C. § 1983, that Officer Brown violated the Fourth, Eighth, and Fourteenth am endm ents by using excessive force when he pulled Mehta from his car and onto the ground. Claim s for excessive force are analyzed under the Fourth Am endm ent’s prohibition against unreasonable seizures. Graham v. Connor , 490 U.S. 386, 394 (1989). The reasonableness of a seizure turns on “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circum stances confronting them .” Id. at 397. To determ ine whether a specific use of force was reasonable, we m ust
2balance “the nature and quality of the intrusion on the individual’s Fourth

Am endm ent interests against the countervailing governm ental interests at stake.” Id. at 396 (internal quotations and citation om itted). We turn first to the nature and quality of the intrusion on Mehta’s Fourth Am endm ent interests by assessing the “type and am ount of force inflicted.” Young v. Cty. of Los Angeles , 655 F.3d 1156, 1161 (9th Cir. 2011) (citation om itted). After carjacking another victim ’s car, a fleeing felon led police through a dangerous car chase that ended when he crashed into Mehta’s car. 1 Police encircled the car while the suspect rem ained inside. Observing that Mehta was at risk of being caught in crossfire or taken hostage, 2 O fficer Brown approached Mehta’s car with a gun in his hand pointing at Mehta, and signaled for Mehta to open his door and unbuckle his seatbelt. Mehta unlocked the door, while Officer Brown continued to aim the gun at his side. According to Mehta, Officer Brown aim ed the gun at his face, and then pulled Mehta from his car and pushed him to

1 Mehta attem

pts to m anufacture a dispute over whether or not Officer Brown actually witnessed the crash, but has produced no evidence to contravene that presented by Defendants. The district court appropriately accepted as true the fact that Officer Brown witnessed the car crash.

2 Mehta argues that Officer Brown’s actions were m otivated by a m istaken belief that Mehta was the crim inal, rather than a desire to save Mehta from a potentially life-threatening situation. However, Mehta has not pointed to evidence sufficient to create a genuine issue of m aterial fact on this point. Nelson v. Pima Cmty. Coll. , 83 F.3d 1075, 1081–82 (9th Cir. 1996). 3the ground, breaking Mehta’s thum b in the process. Mehta alleges that after being

thrown to the ground, Officer Brown aim ed his gun at Mehta’s head from about a foot-and-a-half away. Officer Brown then dragged Mehta to cover behind the rear tires of his car and later to safety on the side of the road. The am ount of force exerted by Officer Brown against Mehta thus consisted of aim ing a gun at him , pulling him fromhis car, shoving him to the ground, and subsequently dragging him across the road. The nature and quality of this intrusion is “less significant than m ost claim s of force.” See Forrester v. City of San Diego , 25 F.3d 804, 807–08 (9th Cir. 1994) (describing the use of pain
com pliance techniques on nonresisting abortion protestors, which resulted in bruises, a pinched nerve, and a broken wrist, as a “m inim al” use of force). Officer Brown’s brief use of a gun pointed in Mehta’s direction does not change this analysis. Cf. Espinosa v. City & Cty. of San Francisco , 598 F.3d 528, 532–33, 537 (9th Cir. 2010) (finding high level of force used when several officers cornered suspect in attic, pointed loaded guns at that suspect, and ordered him to put his hands up, eventually fatally shooting him ). In com parison, the governm ent had a strong interest in arresting those suspected of com m itting felonies and in protecting the safety of the officers and public. Mehta’s presence in his car not only im peded the officers’ ability to
4apprehend their suspect, but also posed a severe risk to Mehta’s own safety and

that of the officers who would be forced to m aneuver around Mehta while engaging with a hostile suspect. Elim inating such a threat to officer or public safety is am ong the “m ost important” governm ental interests justifying the use of force. Young , 655 F.3d at 1163. When the intrusion on Mehta’s Fourth Am endm ent interests are thus weighed against the strength of the governm ental interest, there exists no genuine issue for trial. The type and am ount of force inflicted on Mehta was low, and was justified by the governm ent’s strong interest in public and officer safety. The district court correctly found that no rational trier of fact could find for Mehta, and appropriately granted sum m ary judgm ent. 2. Even if Officer Brown’s actions did constitute excessive force, Plaintiffs’ claim s would still fail because Officer Brown is entitled to qualified im m unity. An officer’s entitlem ent to qualified im m unity is reviewed de novo on appeal. Glenn v. Washington Cty. , 673 F.3d 864, 870 (9th Cir. 2011). If the court determ ines that an officer’s conduct am ounts to a violation of a constitutional right, the court m ust then determ ine whether the officer is entitled to qualified im m

unity. Pearson v. Callahan , 555 U.S. 223, 232 (2009) (citing Saucier v. Katz , 533 U.S. 194, 201 (2001)). An officer is entitled to qualified
5im m

unity if the right at issue was not “clearly established” at the tim e of the violation. Id. at 243–44. To be clearly established, “[t] he contours of the right
m ust be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” A nderson v. Creighton , 483 U.S. 635, 640 (1987). Assum ing for the sake of argum ent that Officer Brown’s conduct am ounted to excessive force in violation of Mehta’s Fourth Am e ndm e nt rights, Officer Brown would nevertheless be entitled to qualified im m unity because the right allegedly violated was not clearly established under preexisting law. Mehta has not identified, and we are not aware of, “any case dem onstrating a clearly established rule prohibiting the officer from acting as he did.” Saucier , 533 U.S. at 209. An officer in Officer Brown’s situation could reasonably believe that the
am ount of force he used was lawful to ensure the safety of both officers and the public. The district court, therefore, correctly held that Officer Brown was entitled to qualified im m

unity. 3. Mehta also contends that the district court incorrectly granted sum m ary judgm e nt on his state law claim s for negligence and battery. Under California law, in a battery claim

against a police officer, the plaintiff m ust prove that the officer acted with unreasonable force under the Fourth Am e ndm e nt’s “objective reasonableness” standard. Edson v. City of Anaheim , 74 Cal. Rptr. 2d 614, 616
6(Cal. Ct. App. 1998). Because Officer Brown’s use of force was objectively

reasonable, the district court correctly granted sum m ary judgm ent on Mehta’s battery claim
. For Mehta’s negligence claim , California law uses Fourth Am endm e nt standards to m ake a reasonableness determ ination as to whether a police officer acted with neglect. Brown v. Ransweiler , 89 Cal. Rptr. 3d 801, 817 (Cal. Ct. App. 2009) (holding that if an officer’s “use of . . . force [was] objectively reasonable under the circum stances,” then the officer “m et his duty to use reasonable care . . . and, as a m atter of law, cannot be found to have been negligent in this regard” (internal quotations and citation om itted)). Because Officer Brown’s use of force was objectively reasonable under the circum stances, the district court correctly held that Officer Brown cannot, as a m atter of law, be found negligent in this regard. 4. Lastly, Kaushika Mehta contests the district court’s grant of sum m ary judgm e nt on her claimfor loss of consortium . A claim for loss of consortium “is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.” Hahn v. Mirda , 54 Cal. Rptr. 3d 527, 531 (Cal. Ct. App. 2007). Indeed, Mehta concedes that her loss of consortium claim “rises and falls with those of her husband.” Because the district court correctly granted sum m ary judgm ent on
7Harshod Mehta’s negligence, battery, and § 1983 claim s, the district court correctly

granted sum m ary judgm ent against Kaushika Mehta’s claimfor loss of consortium
. Accordingly, the judgm ent of the district court is AFFIRMED
.

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