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Tuuamalemalo v. Greene

United States Court of Appeals, Ninth Circuit

December 24, 2019

Ian Tuuamalemalo, Plaintiff-Appellee,
v.
Shahann Greene, Officer, Defendant-Appellant.

          Argued and Submitted March 15, 2019 San Francisco, California

          Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding No. 2:16-cv-00619-JAD-VCF.

          Craig R. Anderson (argued), Marquis Aurbach Coffing, Las Vegas, Nevada, for Defendant-Appellant.

          Paola M. Armeni (argued), Clark Hill PLLC, Las Vegas, Nevada, for Plaintiff-Appellee.

          Before: William A. Fletcher, Paul J. Watford, and Andrew D. Hurwitz, Circuit Judges.

         SUMMARY [*]

         Civil Rights

         The 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.

         The 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.

         Concurring, 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 § 1983.

          OPINION

          PER CURIAM.

         Defendant 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.

         I. Factual and Procedural Background

         Some of the evidence is undisputed. Where the evidence is in conflict, we recount it in the light most favorable to Tuuamalemalo, the non-moving party.

         On the 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.

         While 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.

         After 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.

         Tuuamalemalo 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.

         A group 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 chokehold.

         The 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.

         Tuuamalemalo 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 waking up.

         Tuuamalemalo 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.

         On 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.

         Following 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 judgment.

         II. Appellate Jurisdiction

         Tuuamalemalo 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.

         We also 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 ...


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