and Submitted March 15, 2019 San Francisco, California
from the United States District Court for the District of
Nevada Jennifer A. Dorsey, District Judge, Presiding No.
R. Anderson (argued), Marquis Aurbach Coffing, Las Vegas,
Nevada, for Defendant-Appellant.
M. Armeni (argued), Clark Hill PLLC, Las Vegas, Nevada, for
Before: William A. Fletcher, Paul J. Watford, and Andrew D.
Hurwitz, Circuit Judges.
panel affirmed the district court's denial, on summary
judgment, of qualified immunity to a police officer in an
action brought pursuant to 42 U.S.C. § 1983 and state
law alleging that defendant used excessive force when he
placed plaintiff in a chokehold during an encounter.
panel stated that this Circuit's decision in Barnard
v. Theobald, 721 F.3d 1069 (9th Cir. 2013), squarely
addressed the constitutionality of the use of a chokehold on
a non-resisting person. The panel held that viewing
plaintiff's version of the facts in the light most
favorable to him, he was not resisting arrest when defendant
placed him in a chokehold. Further, there was little chance
he could initiate resistance with five other officers fully
restraining him and pinning him to the ground. The panel
concluded that given the state of the law in this Circuit, it
was clearly established that the use of a chokehold on a
non-resisting, restrained person violated the Fourth
Amendment's prohibition on the use of excessive force.
The panel further held that the same version of the facts
that justified the district court's decision to deny
defendant qualified immunity under § 1983 precluded a
grant of immunity under Nevada law.
Judge W. Fletcher wrote separately to address the continuing
confusion over the proper standard for determining
appealability of interlocutory orders denying motions for
summary judgment based on qualified immunity under §
Shahann Greene, a police officer in Las Vegas, Nevada, placed
Ian Tuuamalemalo in a chokehold during an encounter following
a concert. The chokehold rendered Tuuamalemalo unconscious,
and it took some time and several attempts to revive him.
Tuuamalemalo sued under 42 U.S.C. § 1983, alleging
excessive force. Officer Greene moved for summary judgment
based on qualified immunity. The district court denied the
motion. Greene brought an interlocutory appeal. We affirm.
Factual and Procedural Background
the evidence is undisputed. Where the evidence is in
conflict, we recount it in the light most favorable to
Tuuamalemalo, the non-moving party.
evening of January 25, 2014, Tuuamalemalo went to a reggae
concert at "The Joint," a music venue in the Hard
Rock Hotel and Casino in Las Vegas, Nevada. Tuuamalemalo was
joined by his wife, his cousin, and his cousin's husband
in an upstairs booth. As the group listened to the concert,
they had a few drinks.
Tuuamalemalo was at the concert, the Homeland Saturation Team
of the Las Vegas Metropolitan Police Department
("LVMPD"), a unit specializing in riot control, was
finishing its shift. Sergeant Tom Jenkins was in the squad
locker room getting ready to go home when he received a call
from LVMPD Gang Sergeant Andrew Burnett requesting backup at
The Joint to ensure that a fight would not break out.
Sergeant Jenkins placed his team back on duty and drove to
the Hard Rock Hotel. Officer Greene drove with Officer Sergio
MPhillips to join Sergeant Jenkins at the hotel. Video
surveillance from the hotel shows a large number of police
officers at the scene.
the officers arrived at the hotel, Sergeant Burnett
approached Darin Afemata, a member of Tuuamalemalo's
party. Tuuamalemalo approached the officers and tried to talk
to them. One of the officers told him "to shut the
'F' up." A surveillance video shows police
officers and members of Tuuamalemalo's group pushing one
another. Tuuamalemalo made his way to the front of his group.
After reaching the front of the group, Tuuamalemalo was
pushed by one of the officers.
and other patrons were moved to a hallway outside The Joint
but still inside the hotel. They were closely followed by a
group of officers. As Tuuamalemalo was pushed along the
hallway with a mixed group of patrons and police officers, he
collapsed. With the help of officers and patrons,
Tuuamalemalo was able to stand up. He began walking toward
the hotel exit with help from two friends, one on each side.
of officers followed Tuuamalemalo and his friends as they
walked toward the exit. Sergeant Jenkins pushed through the
group and grabbed the back of Tuuamalemalo's shirt. The
video shows Tuuamalemalo turning around. Sergeant Jenkins
then punched Tuuamalemalo on the left side of his face. After
Jenkins punched Tuuamalemalo, five officers took Tuuamalemalo
to the ground. Officer Greene put Tuuamalemalo in a
video shows Tuuamalemalo on the floor with a number of
officers on top of him. Nothing in the video shows resistance
by Tuuamalemalo. Officer Greene's chokehold was a lateral
vascular neck restraint ("LVNR"), which restricts
the flow of blood to the brain rather than restricting air
flow. The chokehold rendered Tuuamalemalo unconscious. It
took several attempts to revive him.
testified in his deposition, "My legs aren't moving,
I'm not fighting back. I'm not trying to resist,
kicking, nothing. The whole time I had my hands spread
out." "Then we all went down, and I remember
somebody yelling, 'Choke his ass out.'"
Tuuamalemalo testified that the next thing he remembered was
was arrested for (1) disorderly conduct, (2) resisting
arrest, (3) provoking commission of breach of peace, and (4)
malicious destruction of property. He was transported to
Clark County Detention Center and was released on bail the
next day. All charges were ultimately dismissed.
January 25, 2015, Tuuamalemalo filed suit in Nevada state
court. Defendants removed the case to federal court, and
Tuuamalemalo subsequently filed an Amended Complaint
("AC"). The AC named Sergeant Jenkins, Officer
MPhillips, Officer Greene, and LVMPD as defendants. The
complaint included false arrest and excessive force claims
against the officers; a failure to train claim against LVMPD;
and analogous state law claims for assault, battery, and
intentional infliction of emotional distress.
discovery, defendants moved for summary judgment. The
individual defendants claimed qualified immunity under
federal law and discretionary immunity under state law. On
March 27, 2018, the district court issued an order granting
summary judgment in favor of Officer MPhillips, Sergeant
Jenkins, and LVMPD, but denied summary judgment to Officer
Greene. The claims against Greene all relate to his use of
the chokehold on Tuuamalemalo. Greene brought an
interlocutory appeal of the denial of his motion for summary
argues that we lack jurisdiction to review the district
court's interlocutory order denying summary judgment to
Officer Greene under § 1983 and under state law. Greene
freely admits that he administered the chokehold.
Tuuamalemalo points out that the district court held that
there was a genuine issue of material fact as to whether
Tuuamalemalo was resisting at the time Greene applied the
chokehold, and therefore as to whether Greene is entitled to
qualified immunity. Therefore, he contends, we lack appellate
jurisdiction. We have jurisdiction under Plumhoff v.
Rickard, 572 U.S. 765 (2014), to review the decision of
the district court, viewing the facts in the light most
favorable to Tuuamalemalo, the nonmoving party.
have interlocutory appellate jurisdiction to review the
district court's denial of Officer Greene's motion
for summary judgment on Tuuamalemalo's state-law claims.
For claims of immunity under state law, "the
availability of an appeal depends on whether, under
state law, the immunity functions as an immunity
from suit or only as a defense to liability."
Liberal v. Estrada, 632 F.3d 1064, 1074 (9th Cir.
2011) (emphasis in original). "A denial of summary
judgment is immediately appealable when the immunity is an
immunity from suit, but not when it is a mere defense to
liability." Id. (citing Mitchell, 472
U.S. at 526). Both parties agree that under Nevada law,
immunity for discretionary acts provides police officers with
immunity from suit. See ASAP Storage, Inc. v. City of
Sparks, 173 P.3d 734, 745-46 (Nev. 2007) (holding that