946 F.3d 471
9th Cir.2019Background
- After a reggae concert at the Hard Rock in Las Vegas, multiple LVMPD officers confronted patrons including Ian Tuuamalemalo.
- Surveillance shows officers pushing the crowd; Tuuamalemalo collapsed, later stood, and walked toward the exit supported by friends.
- Sergeant Jenkins punched Tuuamalemalo; five officers then pinned him to the ground while Officer Shahann Greene applied a lateral vascular neck restraint (LVNR) chokehold.
- The chokehold rendered Tuuamalemalo unconscious; he was revived after several attempts. Criminal charges were later dismissed.
- Tuuamalemalo sued under 42 U.S.C. § 1983 (excessive force) and state tort claims; the district court denied Greene’s summary-judgment motion on qualified immunity and Nevada discretionary-immunity grounds as to Greene.
- The Ninth Circuit, viewing the facts in the plaintiff’s favor, affirmed denial of federal qualified immunity and denial of state-law immunity, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Greene violated the Fourth Amendment by using a chokehold | Tuuamalemalo: Greene used an LVNR on a non-resisting, restrained person, rendering him unconscious — excessive force | Greene: Force was justified by prior aggression and resistance by Tuuamalemalo | Held: Viewing plaintiff’s facts, chokehold on non-resisting, restrained person violated the Fourth Amendment |
| Whether the right was clearly established at the time | Tuuamalemalo: Ninth Circuit and other circuits had clearly established that chokeholds on non-resisting/restrained persons are unconstitutional | Greene: Argued factual dispute and reliance on prior aggressive conduct meant law was not clearly established for his conduct | Held: Clearly established — Barnard and Drummond (and a circuit consensus) put officers on notice |
| Appellate jurisdiction to hear interlocutory appeal | Tuuamalemalo: Denial based on disputed facts precludes interlocutory review | Greene: Mitchell/Johnson/Plumhoff standards allow review when legal question presented | Held: Court has jurisdiction (Plumhoff and precedent permit review when viewing facts in plaintiff’s favor) |
| Whether Nevada discretionary-immunity bars state claims | Tuuamalemalo: Alleged willful/discriminatory conduct excluded from immunity; chokehold could show hostility or deliberate disregard | Greene: Discretionary immunity applies even if discretion abused | Held: Same facts that deny federal immunity permit denial of Nevada discretionary immunity (abusive/willful conduct not protected) |
Key Cases Cited
- Barnard v. Theobald, 721 F.3d 1069 (9th Cir. 2013) (use of chokehold on non-resisting, restrained person found unconstitutional)
- Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003) (squeezing breath from compliant, prone, handcuffed individual is excessive force)
- Plumhoff v. Rickard, 572 U.S. 765 (2014) (clarifies interlocutory jurisdiction in qualified-immunity appeals and endorses Scott approach)
- Scott v. Harris, 550 U.S. 372 (2007) (courts must view facts in light most favorable to nonmoving party on summary judgment in qualified-immunity context)
- Johnson v. Jones, 515 U.S. 304 (1995) (limits appealability of some interlocutory orders denying summary judgment on evidentiary-sufficiency grounds)
- Mitchell v. Forsyth, 472 U.S. 511 (1985) (denial of qualified immunity is immediately appealable)
- Coley v. Lucas Cty., 799 F.3d 530 (6th Cir. 2015) (chokeholds unreasonable where individual is already restrained)
- United States v. Livoti, 196 F.3d 322 (2d Cir. 1999) (use of chokehold against handcuffed, non-resistant subject excessive)
- Valencia v. Wiggins, 981 F.2d 1440 (5th Cir. 1993) (chokehold and force to render non-resisting detainee unconscious unreasonable)
- Davis v. City of Las Vegas, 478 F.3d 1048 (9th Cir. 2007) (discretionary immunity does not protect decisions made in bad faith or involving willful/disregard of rights)