Ramon Cortesluna v. Manuel Leon ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAMON CORTESLUNA, No. 19-15105
Plaintiff-Appellant,
D.C. No.
v. 3:17-cv-05133-
JSC
MANUEL LEON; ROBERT KENSIC;
DANIEL RIVAS-VILLEGAS; CITY OF
UNION CITY, California, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Jacqueline Scott Corley, Magistrate Judge, Presiding
Argued and Submitted April 29, 2020
San Francisco, California
Filed October 27, 2020
Before: Ronald Lee Gilman,* Susan P. Graber, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Graber;
Partial Concurrence and Partial Dissent by Judge Gilman;
Partial Concurrence and Partial Dissent by Judge Collins
*
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 CORTESLUNA V. LEON
SUMMARY**
Civil Rights
The panel affirmed in part and reversed in part the district
court’s summary judgment in favor of defendants, and
remanded, in an action brought pursuant to 42 U.S.C. § 1983
and state law alleging that police officers used excessive
force in effecting plaintiff’s arrest.
The panel affirmed the district court’s summary judgment
in favor of officer Leon. The panel held that even taking
plaintiff’s version of the facts as true, as was required at this
stage of the proceedings, a reasonable jury would not find a
Fourth Amendment violation because Leon’s acts were
objectively reasonable under the circumstances. The panel
first determined that the alleged crime was severe: a twelve-
year-old girl told a 911 dispatcher that plaintiff had
threatened his girlfriend and her daughters with a chainsaw.
The panel then determined that Officer Leon faced an
immediate threat. The panel noted that plaintiff had a knife
in the left pocket of his pants and had lowered his hands
toward his thighs—and thus toward the knife—after which
Leon fired a beanbag shotgun. Finally, the panel determined
that plaintiff’s hands remained near the knife in his pocket at
the time of the second beanbag shot.
The panel reversed the district court’s summary judgment
in favor of officer Rivas-Villegas. The panel first held that
there was a genuine issue of issue of fact as to whether the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CORTESLUNA V. LEON 3
force that Rivas-Villegas used when he kneeled on plaintiff’s
back when he was lying face down on the ground was
excessive. The panel then determined that controlling
precedent at the time put officers on notice that kneeling on
a prone and non-resisting person’s back so hard as to cause
injury was excessive.
The panel affirmed the district court’s summary judgment
in favor of Sergeant Kensic, determining that he lacked any
realistic opportunity to intercede to stop the excessive force.
Finally, because the panel reversed the grant of summary
judgment as to officer Rivas-Villegas, it remanded to the
district court for consideration of the other elements of
plaintiff’s claim against the City of Union City under Monell
v. Department of Social Services, 436 U.S. 658 (1978). For
the same reason, the panel reinstated plaintiff’s state-law
claims relating to Rivas-Villegas’ conduct.
Concurring in part and dissenting in part, Judge Gilman
fully concurred in the portions of the majority opinion
regarding the disposition as to Sergeant Kensic and Officer
Rivas-Villegas. He respectfully dissented from the portion
affirming the grant of summary judgment in favor of Officer
Manuel Leon, stating that he had no doubt that a jury could
reasonably find in plaintiff’s favor based on the facts that he
has presented.
Concurring in part and dissenting in part, Judge Collins
concurred in the majority opinion insofar as it partially
affirmed the district court’s judgment dismissing plaintiff’s
claims of excessive force in connection with his arrest.
However, he disagreed with the majority’s reversal of the
judgment in favor of Officer Rivas-Villegas and its partial
reversal of the judgment dismissing plaintiff’s claims against
4 CORTESLUNA V. LEON
the City. Judge Collins would affirm the judgment in its
entirety.
COUNSEL
Audrey Smith (argued) and Robert G. Howie, Howie & Smith
LLP, San Mateo, California, for Plaintiff-Appellant.
Lori A. Sebransky (argued) and Kevin P. Allen, Allen
Glaessner Hazelwood & Werth LLP, San Francisco,
California, for Defendants-Appellees.
CORTESLUNA V. LEON 5
OPINION
GRABER, Circuit Judge:
Plaintiff Ramon Cortesluna appeals from the summary
judgment entered in favor of Defendants Manuel Leon,
Daniel Rivas-Villegas, Robert Kensic, and the City of Union
City, California (“City”), in this action alleging that the
individual Defendants used excessive force in effecting
Plaintiff’s arrest. We affirm in part, reverse in part, and
remand.
I
FACTUAL AND PROCEDURAL BACKGROUND1
On the night of November 6, 2016, a 911 dispatcher
received a call in which a 12-year-old girl, I.R., reported that
she, her mother, and her 15-year-old sister were barricaded in
a room at their home because her mother’s boyfriend,
Plaintiff, had a chainsaw and was going to attack them. I.R.
said that Plaintiff was “always drinking,” had “anger issues,”
was “really mad,” and was using the chainsaw to “break
something in the house.” I.R. said that her mother was
holding the door closed to prevent Plaintiff from entering and
hurting them. I.R.’s sister then took the phone and confirmed
that Plaintiff was “right outside the bedroom door” and was
“sawing on their door knob.” A manual sawing sound was
audible to the 911 operator. I.R.’s sister described Plaintiff
and his clothing.
1
The underlying facts, except those regarding Plaintiff’s alleged
injuries, are undisputed.
6 CORTESLUNA V. LEON
A police dispatcher requested that officers respond. The
dispatcher reported that a 12-year-old girl said that her
mother’s boyfriend had a chainsaw and was trying to hurt her,
her sister, and her mother, who were together in a room. The
dispatcher also relayed the girl’s statement that the boyfriend
was “always drinking” and was using the chainsaw to break
something in the house. The dispatcher further reported that
there had been another potentially related 911 call in the area
and that, on that call, crying could be heard, but the caller
hung up without speaking.
Defendants Leon, Rivas-Villegas, and Kensic, along with
two other police officers, responded to the scene. When the
first three officers, including Rivas-Villegas and Kensic,
arrived, they observed Plaintiff’s home for several minutes
and saw that “[Plaintiff] is right here” in his window and
“doesn’t have anything in his hand” except, at some points,
a beer. The officers checked with dispatch to confirm that the
caller really reported a chainsaw. The dispatcher
acknowledged “we can’t hear [a chainsaw] over the phone”
but suggested that Plaintiff could be using the chainsaw
“manually.” One officer asked the 911 operator if the girl
and her family could leave the house. The operator replied
that they were unable to get out and that, during the call, she
heard sawing sounds in the background, as if the boyfriend
were trying to saw the bedroom door down.
Defendant Leon arrived at the scene later and might have
heard the radioed conversation with the dispatcher. When
Leon arrived, another officer told him, “so, he’s standing
right here drinking a beer. What do you think [about] just
giving him commands, having him come out, and do a
protective sweep?” The officers formulated a plan to
CORTESLUNA V. LEON 7
approach the house and “breach it with less lethal, if we need
to,” a reference to Leon’s beanbag shotgun.2
Rivas-Villegas knocked on the front door, stating,
“[P]olice department, come to the front door, Union City
police, come to the front door.” A few seconds later, Plaintiff
emerged through a sliding glass door near the front door,
holding a large metal object. Kensic said, “He’s coming . . .
he’s got a weapon in his hand” that looks “like a crowbar.”
Plaintiff was ordered to “drop it,” which he did. Meanwhile,
Leon said, “I’m going to hit him with less lethal,” that is, his
beanbag shotgun, and told another officer to get out of his
way.
Rivas-Villegas then ordered Plaintiff to “come out, put
your hands up, walk out towards me.” Plaintiff put his hands
up, as Rivas-Villegas told Plaintiff to “keep coming.”
As Plaintiff walked out of the house and toward the
officers, Rivas-Villegas said, “Stop. Get on your knees.”
Plaintiff stopped approximately ten to eleven feet from the
officers. Immediately after Rivas-Villegas’ order, Kensic
saw a knife in the front left pocket of Plaintiff’s sweatpants,
and he announced that Plaintiff had “a knife in his left pocket,
knife in his pocket.” Kensic then told Plaintiff, “[D]on’t,
don’t put your hands down” and “hands up.” After Kensic
shouted this last order, Plaintiff turned his head toward
Kensic, who was on Plaintiff’s left side, (and away from
2
A beanbag shotgun is a twelve-gauge shotgun loaded with beanbag
rounds, consisting of lead shot contained in a cloth sack. Deorle v.
Rutherford, 272 F.3d 1272, 1277 & n.8 (9th Cir. 2001). By design,
beanbag shotguns typically cause serious injury rather than death,
although death can result.
8 CORTESLUNA V. LEON
Leon, who was on Plaintiff’s right side) and simultaneously
lowered his head and his hands. Leon immediately shot
Plaintiff with a beanbag round from his shotgun and quickly
fired a second beanbag shot while Plaintiff’s hands were still
in a downward position near his belly, where the first shot hit.
The second shot hit him on the hip. Roughly two seconds
elapsed between Kensic’s “hands up” order and the second
shot.
After the second shot, Plaintiff again raised his hands over
his head. The officers ordered him to “[G]et down.” As
Plaintiff was lowering himself to the ground, Rivas-Villegas
used his foot to push Plaintiff to the ground. Rivas-Villegas
then pressed his knee into Plaintiff’s back and pulled
Plaintiff’s arms behind his back. Leon handcuffed Plaintiff’s
hands while Rivas-Villegas held his position. A few
moments later, Rivas-Villegas lifted Plaintiff up by his
handcuffed hands and moved him away from the doorway.
Other officers then entered the house, and the incident ended.
Plaintiff filed a complaint asserting (a) a claim under
42 U.S.C. § 1983 against Leon and Rivas-Villegas for
excessive force; (b) a § 1983 claim against Kensic for failing
to intervene and stop the excessive force; (c) a claim against
the City under Monell v. Department of Social Services,
436 U.S. 658 (1978), for the officers’ actions; and (d) several
state-law claims. Plaintiff claims that he suffers physical,
emotional, and economic injuries as a result of the officers’
conduct.
The district court granted summary judgment to the
individual Defendants on the federal claims. As to Leon and
Rivas-Villegas, the court ruled both that the force used was
objectively reasonable in the circumstances and that they
CORTESLUNA V. LEON 9
were entitled to qualified immunity. As to Kensic, the court
ruled that he had no reasonable opportunity to intervene and
therefore could not be liable. With summary judgment
granted in favor of the individual Defendants, the court
dismissed Plaintiff’s claim against the City. The court then
declined to exercise supplemental jurisdiction over Plaintiff’s
state-law claims and dismissed them without prejudice. This
timely appeal followed.
II
STANDARD OF REVIEW
We review de novo the propriety of summary judgment.
S.B. v. Cty. of San Diego, 864 F.3d 1010, 1013 (9th Cir.
2017). Summary judgment is appropriate only if there is “no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Blight v. City of Manteca, 944 F.3d 1061, 1065–66 (9th
Cir. 2019).
We also review de novo the ruling that a police officer is
entitled to qualified immunity. S.B., 864 F.3d at 1013. If the
parties’ versions of the facts differ, we use the version most
favorable to Plaintiff, the non-moving party. Smith v. City of
Hemet, 394 F.3d 689, 693 (9th Cir. 2005) (en banc).
10 CORTESLUNA V. LEON
III
DISCUSSION
A. Principles of Qualified Immunity
Qualified immunity protects individual officers “from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks
omitted). In evaluating an assertion of qualified immunity,
we undertake a two-part analysis, asking (1) “whether the
facts taken in the light most favorable to the plaintiff show
that the officer’s conduct violated a constitutional right,” and
(2) whether that right was “clearly established at the time of
the officer’s actions, such that any reasonably well-trained
officer would have known that his conduct was unlawful.”
Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020).
At step one, we determine whether a reasonable jury
could conclude that an officer’s use of force violated the
Fourth Amendment by “balancing ‘the nature and quality of
the intrusion on the individual’s Fourth Amendment interests
against the importance of the governmental interests alleged
to justify the intrusion.’” Id. (quoting Tennessee v. Garner,
471 U.S. 1, 8 (1985)). That analysis incorporates many
factors,3 but the most important factor is “whether the suspect
3
Those factors include the relationship between the need for the use
of force and the amount of force used; the extent of the plaintiff’s injuries;
any effort made by the officer to temper or to limit the amount of force;
the threat reasonably perceived by the officer; the severity of the
plaintiff’s crime; whether the plaintiff posed an immediate threat to the
CORTESLUNA V. LEON 11
posed an immediate threat to the safety of the officers or
others.” C.V. ex rel. Villegas v. City of Anaheim, 823 F.3d
1252, 1255 (9th Cir. 2016) (internal quotation marks
omitted). Although we take disputed facts in the light most
favorable to the plaintiff, we view the facts from “the
perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Graham v. Connor,
490 U.S. 386, 396 (1989). Because of the factual disputes
typical of excessive-force claims, we have recognized that
summary judgment at this step “should be granted sparingly.”
Smith, 394 F.3d at 701 (internal quotation marks omitted).
Nonetheless, summary judgment may be granted to an officer
if, “after resolving all factual disputes in favor of the
plaintiff,” the court concludes that the force used was
“objectively reasonable under the circumstances.” Scott v.
Henrich, 39 F.3d 912, 915 (9th Cir. 1994).
At step two, we determine whether the officer’s conduct
violated “clearly established” law. Plumhoff v. Rickard,
572 U.S. 765, 768 (2014). In doing so, we are mindful of the
Supreme Court’s repeated instruction “not to define clearly
established law at a high level of generality.” Ashcroft v. al-
Kidd, 563 U.S. 731, 742 (2011). Rather, we must decide
“whether the violative nature of particular conduct [was]
clearly established.” Id. That is, existing precedent must
already have placed the constitutional or statutory question
beyond debate. Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018) (per curiam). We have interpreted those instructions
to mean that liability does not attach unless a case exists in
which a police officer acting under similar circumstances was
safety of the officers or others; and whether the plaintiff actively resisted
arrest or attempted to flee. Kingsley v. Hendrickson, 576 U.S. 389, 397
(2015); Orn, 949 F.3d at 1174.
12 CORTESLUNA V. LEON
held to have violated the Fourth Amendment. Emmons v.
City of Escondido, 921 F.3d 1172, 1174 (9th Cir. 2019) (per
curiam).4
B. Officer Leon
Plaintiff asserts that Leon violated the Fourth Amendment
by shooting him twice with a beanbag shotgun. Even taking
Plaintiff’s version of the facts as true, as we must at this
stage, a reasonable jury would not find a Fourth Amendment
violation, because Leon’s acts were objectively reasonable in
the circumstances. Therefore, we affirm the district court’s
grant of summary judgment to Leon.
The reasonableness of an officer’s use of force
“traditionally is a question of fact for the jury.” Scott,
39 F.3d at 915. Nevertheless, we may depart from that
traditional rule if any reasonable juror would find that the use
of force was “objectively reasonable under the
circumstances.” Id.
As to the personal intrusion, because beanbag rounds are
“potentially lethal at thirty feet and could be lethal at
distances up to fifty feet,” they are “not to be deployed
lightly.” Deorle, 272 F.3d at 1279–80. Their use “is
permissible only when a strong governmental interest
compels the employment of such force.” Id. at 1280. In
4
An exception exists for “the rare ‘obvious case,’ where the
unlawfulness of the officer’s conduct is sufficiently clear even though
existing precedent does not address similar circumstances.” District of
Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (quoting Brosseau v.
Haugen, 543 U.S. 194, 199 (2004) (per curiam)). That exception does not
apply here.
CORTESLUNA V. LEON 13
assessing the governmental interest, we consider
“(1) ‘whether the suspect poses an immediate threat to the
safety of the officers or others,’ (2) ‘the severity of the crime
at issue,’ and (3) ‘whether he is actively resisting arrest or
attempting to evade arrest by flight.’” Glenn v. Washington
Cty., 673 F.3d 864, 872 (9th Cir. 2011) (quoting Graham,
490 U.S. at 396)).
Here, first, the alleged crime was severe: a twelve-year-
old girl told a 911 dispatcher that Plaintiff had threatened his
girlfriend and her daughters with a chainsaw. The threat was
just as great even if Plaintiff had been using the saw
manually.
Leon faced an immediate threat, the second and most
important factor. C.V. ex rel. Villegas, 823 F.3d at 1255.
Although Plaintiff did not have a chainsaw when the officers
arrived, Plaintiff emerged from the house holding a large
metal object. Plaintiff dropped the object when ordered to do
so, but he still had a knife in the left pocket of his pants.
Leon, who was standing diagonally to Plaintiff’s right, could
not see the knife from his position. Kensic announced that
Plaintiff had a knife and ordered Plaintiff to put his hands up.
Plaintiff instead lowered his hands toward his thighs—and
thus toward the knife—after which Leon fired the beanbag
shotgun.
The third factor pertains to Plaintiff’s resistance. Before
the first shot was fired, Plaintiff put his hands down, and
closer to the knife in his pocket, after police repeatedly told
him to put his hands up. Plaintiff’s hands remained near the
knife in his pocket at the time of the second shot.
14 CORTESLUNA V. LEON
In summary, even viewing the facts in Plaintiff’s favor,
the force that Leon applied was objectively reasonable in the
circumstances, considering both the level of intrusion and the
strength of the government’s interest. It bears repeating that
our inquiry is an objective one. Despite our colleague’s
suggestion, Judge Gilman’s dissent at 22, we cannot consider
that Leon announced that he was “going to hit [Plaintiff] with
less lethal” twenty seconds before pulling the trigger. As the
Supreme Court has repeatedly stressed, we must assess
officers’ use of force “without regard to their underlying
intent.” Graham, 490 U.S. at 397. Accordingly, we affirm
the summary judgment entered in favor of Leon.
C. Officer Rivas-Villegas
Plaintiff alleges that Rivas-Villegas violated his Fourth
Amendment right to be free from excessive force by leaning
too hard on his back, causing injury. Taking Plaintiff’s
version of the facts as true, we agree. Because we also hold
that controlling precedent put officers on notice that such
force is excessive, Rivas-Villegas is not entitled to qualified
immunity. We therefore reverse and remand for a jury to
decide whether Rivas-Villegas used excessive force and, if
so, to assess damages.
1. Rivas-Villegas’ use of force was excessive.
Although we have held that Leon did not violate
Plaintiff’s Fourth Amendment rights by using excessive
force, the objective situation altered dramatically after Leon
shot Plaintiff twice with beanbag rounds. By the time Rivas-
Villegas put pressure on Plaintiff’s back, Plaintiff no longer
posed a risk. He was lying face down on the ground,
experiencing visible pain from having been shot by the two
CORTESLUNA V. LEON 15
beanbag rounds, and not resisting. Although the knife
remained in Plaintiff’s pocket, Rivas-Villegas—unlike
Leon—could have seen that the knife was protruding blade-
up such that it would not have been possible for Plaintiff to
grab it and attack anyone. Thus, the governmental interest
that we must consider had decreased greatly from when Leon
fired on Plaintiff.
And although a knee on the back is a lesser personal
intrusion than beanbag rounds, it still constitutes a
meaningful personal intrusion when it causes injury.
LaLonde v. County of Riverside, 204 F.3d 947, 952 (9th Cir.
2000). In evaluating reasonableness, we may consider the
presence and severity of a plaintiff’s injuries, but injuries are
not required. Felarca v. Birgeneau, 891 F.3d 809, 817 (9th
Cir. 2018). This court long ago recognized that a plaintiff
asserting a claim of excessive force “is not required to show
a significant injury.” Wilks v. Reyes, 5 F.3d 412, 416 (9th
Cir. 1993), as amended on denial of reh’g (Oct. 28, 1993);
see also Morales v. Fry, 873 F.3d 817, 820–21 (9th Cir.
2017) (discussing this circuit’s requirement under Floyd v.
Laws, 929 F.2d 1390, 1402–03 (9th Cir. 1991), that a court
award nominal damages where a jury finds for a plaintiff on
an excessive-force claim but awards no damages). If the use
of force is excessive and there is a case on point that alerted
the officer to the unconstitutionality of his conduct (an issue
to which we will turn next), there is no added requirement for
a specific level of damage or injury. Here, Plaintiff alleges
that he now suffers ongoing neck and back pain, headaches,
and emotional distress on account of Rivas-Villegas’ actions.
That is sufficient to create a genuine dispute of material fact
that requires resolution by a jury. The credibility and weight
16 CORTESLUNA V. LEON
of Plaintiff’s evidence are for the jury, not us, to decide.5
Because we must view all the evidence in Plaintiff’s favor,
Rivas-Villegas used excessive force.
2. Rivas-Villegas violated clearly established law.
At step two, Rivas-Villegas is not entitled to qualified
immunity because existing precedent put him on notice that
his conduct constituted excessive force. In LaLonde, an
officer grabbed the plaintiff, knocked him to the ground,
straddled him, and handcuffed him. 204 F.3d at 952.
Allegedly, another officer then “forcefully put his knee into
LaLonde’s back, causing him significant pain” and a
lingering back injury. Id. We reversed the summary
judgment entered in favor of the officers because the
allegations, if true, “constitute[d] a clear violation of
[LaLonde’s] Fourth Amendment rights.” Id. at 962.6
5
Judge Collins’ dissent errs by “disregard[ing]” Rivas-Villegas’ brief
use of his foot to press Plaintiff to the ground. Judge Collins’ Dissent
at 28 n.2. The fact that Plaintiff did not feel the foot on his back does not
make the push irrelevant, because that fact does not negate the possibility
that the push contributed to Plaintiff’s alleged injuries. Once again, the
significance of the push is for the jury, and not us, to decide. Nor is it
particularly surprising that Plaintiff did not feel a foot on his body after he
had absorbed two rounds from a beanbag shotgun. Cf. Buck v. City of
Albuquerque, 549 F.3d 1269, 1289 (10th Cir. 2008) (“Because she was
focused on regaining control of her breathing, [the plaintiff] does not
recall feeling the impact of the pepper ball rounds on her body . . . .”).
6
Although LaLonde’s discussion of the test for qualified immunity
may be outdated, it nonetheless establishes that certain uses of force,
including the use of force similar to that employed in this case, violate the
Fourth Amendment.
CORTESLUNA V. LEON 17
Judge Collins’ dissent asserts that the facts here differ
from those in LaLonde so much that a reasonable officer
would not have been put on notice that pushing his knee into
the back of a prone, unresisting, injured person violates the
Fourth Amendment. Judge Collins’ Dissent at 35–37. We
disagree. Although the officers here responded to a more
volatile situation than did the officers in LaLonde, the context
was substantially similar. Indeed, rarely is a precedent as
precisely aligned with the relevant actions. Both LaLonde
and this case involve suspects who were lying face-down on
the ground and were not resisting either physically or
verbally, on whose back the defendant officer leaned with a
knee, causing allegedly significant injury.
In LaLonde, officers responded to reported yelling inside
a residence. 204 F.3d at 950–51. And much like here, the
officers were warned that the plaintiff possessed a deadly
weapon—a rifle in that case. Id. at 951. The officers also
were told that they “should be careful because [the plaintiff]
might be willing to use [that weapon].” Id. And much like
here, the plaintiff at first declined to comply with police
requests. Id. at 951–52.
The similarities increase at what Graham teaches to be
the most critical moment: when excessive force was
employed. 490 U.S. at 396. In LaLonde, an officer
“forcefully put his knee into [the plaintiff’s] back” after the
plaintiff had been sprayed with pepper spray and had stopped
resisting arrest. 204 F.3d at 952, 959 n.17. Here, at the time
in question, Plaintiff was prone, similarly was not resisting
arrest, and similarly was visibly injured by a prior use of
force. If anything, Plaintiff was more subdued—and thus less
of a threat—after having been shot twice by a beanbag
shotgun rather than having been pepper-sprayed. As in
18 CORTESLUNA V. LEON
LaLonde, Rivas-Villegas “deliberately dug his knee into
[Plaintiff’s] back” with enough force to cause injury.7 Id.
at 959 n.17. The court concluded in LaLonde that the officers
were not entitled to qualified immunity. Id. at 962. Officers
in Rivas-Villegas’ position were thus on notice that their
substantially similar conduct is unconstitutional.
Judge Collins’ dissent seems to argue that, because
Plaintiff was accused of a serious crime and initially appeared
noncompliant, police could use force throughout the
encounter without violating the Fourth Amendment. Judge
Collins’ Dissent at 29–30. But just as circumstances can
escalate rapidly, justifying “split-second judgments” to use
force that might have been excessive a moment earlier,
Graham, 490 U.S. at 397, circumstances can de-escalate
rapidly. Logic thus dictates that the reverse is true, too: a use
of force that may have been reasonable moments earlier can
become excessive moments later.
Defendants also argue that the method they used to
handcuff Plaintiff is a standard procedure, designed to
minimize injuries and confrontations. But the fact that a
particular practice is standard, or that it usually results in no
harm, does not insulate its use in every case. For example,
we have repeatedly held that “tight handcuffing can constitute
excessive force,” even though handcuffing is a generally
standard and appropriate practice. LaLonde, 204 F.3d at 960
7
Plaintiff’s arrest was captured on videotape. The videotape shows
that Rivas-Villegas intentionally dug his knee into Plaintiff’s back.
Although the videotape does not establish how strenuously Rivas-Villegas
dug his knee into Plaintiff’s back, that factual dispute is for the jury to
consider. And the existence and degree of any resultant injury are for the
jury, as fact-finder, to determine.
CORTESLUNA V. LEON 19
(citing Palmer v. Sanderson, 9 F.3d 1433 (9th Cir. 1993);
Hansen v. Black, 885 F.2d 642 (9th Cir. 1989)). And the
amount of force that may be reasonable when applied to the
back of a large, fit individual to effect an arrest may be
excessive as applied to a small, frail individual. The facts of
each case matter.
For similar reasons, the dissent’s fear that our holding
likely will “eliminate the use of a knee to protectively hold
down a non-resisting suspect while handcuffing him,” Judge
Collins’ Dissent at 36, is unwarranted. We hold only, as we
have before, that police may not kneel on a prone and non-
resisting person’s back so hard as to cause injury. LaLonde,
204 F.3d at 959. Just as our tight-handcuff cases have not
eliminated handcuffs, our holding today should not infringe
on an officer’s ability to secure a compliant and prone suspect
without injury.
We conclude that there is a genuine issue of fact as to
whether the force that Rivas-Villegas used was excessive and
that, if Plaintiff’s allegations are true, precedent informed
Rivas-Villegas that the force was excessive. We therefore
reverse the judgment in favor of Rivas-Villegas and remand
for further proceedings.
D. Officer Kensic
Plaintiff asserts that Kensic failed to intervene to prevent
the excessive force employed by Leon and Rivas-Villegas.
But there is no evidence that Kensic knew what the other
defendants would do, and the events unfolded very
rapidly—in a matter of seconds. Kensic therefore lacked any
realistic opportunity to intercede. See Cunningham v. Gates,
229 F.3d 1271, 1289–90 (9th Cir. 2000) (holding that officers
20 CORTESLUNA V. LEON
can be held liable for failing to intervene only if they had a
realistic opportunity to do so). We therefore affirm the
judgment in favor of Kensic.
E. Monell and State-Law Claims
Plaintiff asserts that, under Monell, the City is liable for
the officers’ constitutional violations. The district court
dismissed Plaintiff’s Monell claim because it had granted
summary judgment to the individual Defendants. Because we
reverse the grant of summary judgment as to Rivas-Villegas,
we remand to the district court for consideration of the other
elements of Plaintiff’s Monell claim and whether that claim
“can properly be resolved on summary judgment even if the
constitutional violation question cannot.” Glenn, 673 F.3d
at 880. For the same reason, we reinstate Plaintiff’s state-law
claims relating to Rivas-Villegas’ conduct. See Wall v. Cty.
of Orange, 364 F.3d 1107, 1112 (9th Cir. 2004) (reinstating
state-law claims in similar circumstances). On remand, the
district court can reconsider whether to exercise jurisdiction
over those claims.
AFFIRMED as to the federal claims against Defendant
Leon and Defendant Kensic; REVERSED and
REMANDED for further proceedings as to all other claims.
The parties shall bear their own costs on appeal.
GILMAN, Circuit Judge, concurring in part and dissenting in
part:
I fully concur in the portions of the majority opinion
regarding the disposition as to Sergeant Robert Kensic and
CORTESLUNA V. LEON 21
Officer Daniel Rivas-Villegas. On the other hand, I
respectfully dissent from the portion affirming the grant of
summary judgment in favor of Officer Manuel Leon. We are
not being asked to decide whether Cortesluna will prevail at
trial on his excessive-force claim against this officer. The
question before us is simply whether a jury could reasonably
find in Cortesluna’s favor based on the facts that he has
presented. I have no doubt that it could.
I
The key question for a jury to decide is whether a
reasonable officer would have felt immediately threatened by
Cortesluna at the time that Officer Leon shot Cortesluna with
two rounds from the officer’s beanbag shotgun. See C.V. ex
rel. Villegas v. City of Anaheim, 823 F.3d 1252, 1255 (9th
Cir. 2016) (holding that the most important question is
“whether the suspect posed an immediate threat to the safety
of the officers or others” (internal citation and quotation
marks omitted)). The two photos attached to this dissent
clearly support the proposition that Cortesluna posed no
immediate threat to any of the officers present. In both
photos, which are exhibits from Cortesluna’s home-security
camera, Cortesluna is shown standing still with his head and
hands down. Photo 1 shows Officer Leon firing the first
beanbag round at Cortesluna from a distance of
approximately 10 feet. Roughly a second later, Photo 2
shows the second beanbag round being fired.
Even with a knife shown protruding blade up in
Cortesluna’s left front pocket, there is no indication that he
was in the act of reaching for it when the rounds were fired.
And with the knife blade up rather than down, there was no
way that he could have quickly taken it from his pocket to
22 CORTESLUNA V. LEON
threaten the officers. This is especially so when one takes into
account that five police officers were present, all with their
guns trained on Cortesluna. I frankly fail to see how anyone
looking at these photos would deduce that Cortesluna was an
immediate threat to any of the officers under the
circumstances. A jury could instead easily find that Officer
Leon was a trigger-happy member of the police force who
literally “jumped the gun” in a display of excessive force.
This is amply shown by Officer Leon saying “I’m going to hit
him with less lethal” (the beanbag shotgun) even before
Cortesluna had emerged from the house. Maj. Op. at 7.
The majority, moreover, appears to acknowledge the
strength of Cortesluna’s claim against Officer Leon despite
their unwillingness to let a jury decide the issue. In denying
qualified immunity to Officer Rivas-Villegas, for example,
the majority acknowledges that “the knife was protruding
blade-up such that it would not have been possible for
Plaintiff to grab it and attack anyone.” Maj. Op. at 15. Yet
Officer Leon proceeded to shoot Cortesluna twice with the
beanbag rounds without making any effort whatsoever to
ascertain that Cortesluna’s possession of the knife posed no
immediate threat.
The majority also recognizes the teaching of Graham v.
Connor, 490 U.S. 386, 396 (1989), that the most critical
moment is “when excessive force was employed.” Maj. Op.
at 17. Yet Cortesluna was totally passive at the time he was
shot, despite his earlier aggressive actions as reported to the
police dispatcher. And even well before the shooting, when
the officers first saw Cortesluna, he was observed doing
nothing more that standing in the house “drinking a beer.”
Maj. Op. at 6.
CORTESLUNA V. LEON 23
Finally, the majority acknowledges the need to consider
the various factors set forth in Kingsley v. Hendrickson,
576 U.S. 389, 397 (2015), when analyzing an excessive-force
claim, Maj. Op. at 10, n. 3, but fails to give them appropriate
weight. The application of these factors—including the
serious harm that can be caused by a beanbag shotgun, the
lack of any effort by Officer Leon to warn Cortesluna, and the
absence of any resistance or attempt to flee by
Cortesluna—all tilt in his favor. In sum, I believe that there
is more than sufficient evidence to raise a genuine dispute of
material fact regarding the excessive-force claim against
Officer Leon.
II
The use of excessive force by a police officer, of course,
is in violation of the victim’s constitutional rights. Gravelet-
Blondin v. Shelton, 728 F.3d 1086, 1090 (9th Cir. 2013). And
whether the force used was excessive is generally a question
for the jury. Smith v. City of Hemet, 394 F.3d 689, 701 (9th
Cir. 2005) (en banc). This brings us to the second issue of
whether Cortesluna’s right not to be shot was “clearly
established at the time of [Officer Leon’s] actions, such that
any reasonably well-trained officer would have known that
his conduct was unlawful.” See Orn v. City of Tacoma,
949 F.3d 1167, 1174 (9th Cir. 2020).
Existing precedent does not require a prior case with the
exact same facts. Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018) (per curiam) (“[T]his Court’s caselaw does not require
a case directly on point for a right to be clearly established[.]”
(quoting White v. Pauly, 137 S. Ct. 548, 551 (2017))). The
law instead requires “[p]recedent involving similar facts.”
See id. at 1153 (emphasis added). And here the existing
24 CORTESLUNA V. LEON
precedent is close enough to have put Officer Leon on notice
that his actions constituted excessive force.
In Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001),
for example, this court held that shooting a beanbag round at
an emotionally disturbed individual who was walking directly
towards an officer was excessive. Id. at 1282. The court
emphasized that its “conclusion [wa]s strongly supported by
[the] failure to give Deorle any warning that he would be shot
if he approached any closer.” Id. So too here: Officer Leon
gave Cortesluna no warning that he would be shot if he did
not put his hands up. And Deorle arguably presented a
greater threat to the officers than did Cortesluna because
Deorle had been “brandishing a hatchet at a police officer,”
“remained agitated and continued to roam on or about the
property,” and was carrying “an unloaded plastic crossbow in
one hand and what may have been a can or a bottle of lighter
fluid in the other.” Id. at 1276–77. Although Deorle dropped
the hatchet and crossbow when instructed to do so, he had
been walking directly towards the officers when he was shot.
Id. The court in Deorle made clear that “[a] desire to resolve
quickly a potentially dangerous situation is not the type of
governmental interest that, standing alone, justifies the use of
force that may cause serious injury.” Id. at 1281.
Other precedent exists regarding the concept of passive
resistance. See Emmons v. City of Escondido, 921 F.3d 1172,
1175 (9th Cir. 2019) (“The right to be free from the
application of non-trivial force for engaging in mere passive
resistance was clearly established prior to 2008.” (quoting
Gravelet-Blondin, 728 F.3d at 1093)). In Gravelet-Blondin,
the police tased a suspect who refused requests to show his
hands. 728 F.3d at 1089. Although the police had been
warned that the suspect “owned a gun and would have it with
CORTESLUNA V. LEON 25
him,” id., this court nonetheless concluded that “Blondin
engaged in no behavior that could have been perceived . . . as
threatening or resisting,” id. at 1094. His refusal to obey
commands instead constituted “mere passive resistance,” id.
1093, and, “[a]s a result, the use of non-trivial force of any
kind was unreasonable,” id. at 1094.
So even if Cortesluna was disobeying Sergeant Kensic’s
instruction to put his hands up (probably because Cortesluna
was understandably confused by Officer Leon’s immediately
preceding instruction to get down on the ground), a jury could
find that this was at most passive resistance. The attached
photos support such a finding, where Cortesluna is shown
standing still, head down, and approximately 10 feet away
from the five assembled officers when the first beanbag round
was fired. See Photo 1.
Officer Leon’s firing of the second round (Photo 2)
strikes me as even less justified. At that point Cortesluna’s
hands are moving away from his sides and thus further from
the knife in his left front pocket. In my opinion, this evidence
is more than sufficient to place this case in the category
acknowledged by the majority as an obvious case “where the
unlawfulness of the officer’s conduct is sufficiently clear
even though existing precedent does not address similar
circumstances.” Maj. Op. 12, n. 4 (quoting District of
Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)).
For all of the above reasons, I would reverse the grant of
summary judgment in favor of Officer Leon and remand the
case for further proceedings as to all of the defendants other
than Sergeant Kensic.
26 CORTESLUNA V. LEON
APPENDIX
Photo 1
Photo 2
CORTESLUNA V. LEON 27
COLLINS, Circuit Judge, concurring in part and dissenting
in part:
I concur in the majority opinion insofar as it partially
affirms the district court’s judgment dismissing Ramon
Cortesluna’s claims of excessive force in connection with his
arrest. However, I disagree with the majority’s reversal of the
judgment in favor of Officer Daniel Rivas-Villegas and its
partial reversal of the judgment dismissing Cortesluna’s
claims against the City of Union City. I would affirm the
judgment in its entirety, and I therefore respectfully dissent
from sections III(C) and III(E) of the majority’s opinion.
I
The arrest in this case was videotaped by Cortesluna’s
home-security camera. Where, as here, “[t]here are no
allegations or indications that this videotape was doctored or
altered in any way, nor any contention that what it depicts
differs from what actually happened,” we should review the
summary judgment order by “view[ing] the facts in the light
depicted by the videotape.” Scott v. Harris, 550 U.S. 372,
378, 380–81 (2007).1 That videotape shows that, after being
hit by the beanbag rounds, Cortesluna turned and began to lie
face-down on the ground. As Cortesluna was doing so,
Rivas-Villegas approached and briefly placed his foot on
Cortesluna’s back in order to more quickly get him to lie flat
1
At my request, the Clerk of the Court has posted the
videotape on the Court’s public website at this link:
https://cdn.ca9.uscourts.gov/datastore/opinions/media/19-15105-
Cortesluna-Videotape.mp4
28 CORTESLUNA V. LEON
on the ground.2 Rivas-Villegas then straddled Cortesluna,
with his right foot on Cortesluna’s right side and his left leg
bent at the knee on Cortesluna’s left side, where Cortesluna
had a knife in his pocket. Both Rivas-Villegas and
Cortesluna testified that the knee was on Cortesluna’s back;
Rivas-Villegas said that he did that in order to prevent
Cortesluna from trying to get back up while he was being
handcuffed. In that limited sense, it can perhaps be said, as
the majority tendentiously puts it, that Rivas-Villegas’s
holding Cortesluna down with his knee amounted to having
“dug his knee into Plaintiff’s back.” See Maj. Opin. at 18 n.7.
But the videotape also confirms that, to the extent that Rivas-
Villegas placed his knee on Cortesluna’s back, Rivas-Villegas
did not jump on his back or otherwise “drop” his knee into his
back. Rivas-Villegas was in this position for no more than
eight seconds before standing up, at which time another
officer handcuffed Cortesluna’s hands.
Having viewed this videotape multiple times, I do not
think that the force Rivas-Villegas used could reasonably be
described as excessive. But even if I did, I think it is clear
that Rivas-Villegas would be entitled to qualified immunity.
2
For excessive force purposes, we may disregard this brief placement
of Rivas-Villegas’s foot, because Cortesluna testified at his deposition that
he did not even recall feeling the officer’s foot, but only his knee. The
majority contends that there is a triable issue as to whether “the push
contributed to Plaintiff’s alleged injuries,” see Maj. Opin. at 16 n.5, but
that misses the point. The push is only relevant if it constituted excessive
force in violation of constitutional standards, and a push that was so minor
that Cortesluna does not even recall feeling it cannot reasonably be viewed
as “excessive.” See Eastman Kodak Co. v. Image Tech. Servs., Inc.,
504 U.S. 451, 468 (1992) (“the nonmoving party’s inferences [must] be
reasonable in order to reach the jury”).
CORTESLUNA V. LEON 29
A
The test for determining the reasonableness of the force
used to effectuate an arrest “requires careful attention to the
facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.” Graham v. Connor, 490 U.S. 386, 396
(1989). The obvious severity of the suspected crime in this
case weighs in favor of affirmatively using protective force
in arresting Cortesluna, but the majority concludes that the
circumstances concerning the other two principal Graham
factors “altered dramatically” in the mere eight seconds after
Cortesluna was shot with the beanbag rounds. See Maj. Opin.
at 14. I disagree.
The suggestion that Cortesluna suddenly “no longer posed
a risk” at the moment the beanbag shots were fired, see Maj.
Opin. at 14–15, is factually unreasonable. Cortesluna was
carrying a pick tool when he first approached the officers and,
after putting that down, he disobeyed the officers’
instructions to keep his hands up and instead lowered his
hands to where a long knife was protruding from his pocket.
See id. at 7–8. After being shot with the beanbag rounds and
starting to get on the ground, Cortesluna still had the knife in
his left pocket—i.e., on the side where Rivas-Villegas placed
his knee. Using a knee on that side to ensure that Cortesluna
stayed down and did not make a motion toward the knife was
eminently reasonable in light of what the officers knew about
the situation. Kingsley v. Hendrickson, 576 U.S. 389, 399
(2015) (“we have stressed that a court must judge the
reasonableness of the force used from the perspective and
with the knowledge of the defendant officer”). The majority
30 CORTESLUNA V. LEON
erroneously discounts the threat presented by the knife,
asserting that, because it was “protruding blade-up” in
Cortesluna’s pocket, “it would not have been possible for
Plaintiff to grab it and attack anyone.” See Maj. Opin. at 15.
The majority overlooks the fact that, as the videotape makes
clear, the knife was loosely sitting in the large pocket of
Cortesluna’s baggy pajama bottoms—meaning that
Cortesluna could have fit his hand into the pocket to reach the
handle.
The majority’s reasoning is also legally flawed, because
it ignores the Supreme Court’s pointed admonition to this
court not to confidently downplay, from the comfort of our
chambers, the dangers that officers face in making arrests:
[T]he panel majority did not heed the District
Court’s wise admonition that judges should be
cautious about second-guessing a police
officer’s assessment, made on the scene, of
the danger presented by a particular situation.
With the benefit of hindsight and calm
deliberation, the panel majority concluded
that it was unreasonable for [the officers] to
fear that violence was imminent. But we have
instructed that reasonableness “must be
judged from the perspective of a reasonable
officer on the scene, rather than with the
20/20 vision of hindsight” and that “[t]he
calculus of reasonableness must embody
allowance for the fact that police officers are
often forced to make split-second
judgments—in circumstances that are tense,
uncertain, and rapidly evolving.”
CORTESLUNA V. LEON 31
Ryburn v. Huff, 565 U.S. 469, 477 (2012) (citation omitted).
And for the same reason, the majority improperly discounts
the need for precautionary measures (such as holding the
suspect down during handcuffing) in order to address the risk
that a suspect who is not then actively resisting may decide to
start resisting before the handcuffs are actually placed on
him. It is quite wrong for the “panel majority—far removed
from the scene and with the opportunity to dissect the
elements of the situation—confidently [to] conclude[] that the
officers really had no reason to fear for their safety or that of
anyone else.” Id. at 475.
The majority also relies on the fact that Cortesluna claims
to be experiencing ongoing pain as a result of Rivas-
Villegas’s eight-second use of his knee to hold Cortesluna
down during his arrest. See Maj. Opin. at 15. I agree that, on
summary judgment, we have to take as true Cortesluna’s
statements that he has experienced ongoing pain in his back
and neck ever since his arrest, but I disagree with the
suggestion that, on this record, that contention is sufficient to
raise a reasonable inference of excessive force.
Although “injuries are not a precondition” to an excessive
force claim, we have sensibly recognized that the extent and
nature of any injuries that do or do not result from a given use
of force may reveal something about the extent of the force
used. Felarca v. Birgeneau, 891 F.3d 809, 817 (9th Cir.
2018). For example, where the force used produced “a
broken vertebra which caused [the arrestee] both pain and
immobility,” a reasonable trier of fact could conclude that the
force used was “severe.” Santis v. Gates, 287 F.3d 846,
853–54 (9th Cir. 2002). Conversely, “[w]e may infer from
the minor nature of a plaintiff’s injuries that the force applied
was minimal.” Felarca, 891 F.3d at 817. However, we must
32 CORTESLUNA V. LEON
always keep in mind that, because the excessive force inquiry
turns on what the officer knew at the time, see Kingsley,
576 U.S. at 399, any later-occurring claimed injuries are only
relevant to the extent that their severity suggests an objective
level of force that a reasonable officer on the scene would
have recognized at the time to be significant and potentially
injurious. Under these standards, Cortesluna’s claim of
subjective pain is not enough to defeat summary judgment.
Here, the videotape confirms that nothing about Rivas-
Villegas’s brief use of his knee involved an objective level of
force that was likely to produce serious injury. And in
contrast to Santos, Cortesluna has not submitted any evidence
in opposition to summary judgment (such as medical records)
that would show that the claimed subjective pain has its
origin in an underlying physical injury of a type that would
support an inference that the force that produced it was
excessive.3 See Arpin v. Santa Clara Valley Transp. Agency,
261 F.3d 912, 922 (9th Cir. 2001) (affirming summary
judgment on excessive force claim and noting that “Arpin’s
claim of injury is equally unsupported as she does not provide
any medical records to support her claim that she suffered
injury as a result of being handcuffed”); see also Foster v.
Metropolitan Airports Comm’n, 914 F.2d 1076, 1082 (8th
Cir. 1990) (arrestee’s claims that “he has suffered nerve
damage in his arms as a result of being in handcuffs” and
experiences “pain” as a consequence were insufficient to
3
In connection with their reply in support of their summary judgment
motion, Defendants submitted summaries of the medical testimony that
Plaintiffs expected to present at a trial, and those summaries focus largely
on hip and leg injuries from the incident—i.e., injuries attributable to the
bean-bag shots. In all events, those summaries do not specifically tie any
injury to the knee-press.
CORTESLUNA V. LEON 33
defeat summary judgment on excessive force claim where
arrestee “presents no medical records indicating he suffered
any long-term injury as a result of the handcuffs”). On this
record, and given these objective circumstances, the mere fact
that Cortesluna subsequently claimed ongoing subjective pain
is not enough, by itself, to raise a reasonable inference that an
objectively unreasonable level of force was used at the time
of the arrest. But under the majority’s opinion, it is now
apparently the law in the Ninth Circuit that all an arrestee has
to do to get a jury trial on an excessive force
claim—including defeating qualified immunity—is to assert
that the arrest resulted in ongoing subjective pain. For the
reasons I have explained, that is not correct.
I would hold that, even construing the record evidence in
the light most favorable to Cortesluna, no reasonable jury
could find that Rivas-Villegas used excessive force.4
4
The majority properly does not rely on Cortesluna’s further claim
that Rivas-Villegas should not have lifted him from the ground by
grabbing his handcuffs. As the district court noted, Cortesluna does not
claim that his “handcuffing and movement” caused any injury, see
Cortesluna v. Leon, 2018 WL 6727824, at *11 (N.D. Cal. Dec. 21, 2018),
and on this record, no reasonable jury could find that this method of lifting
Cortesluna amounted to excessive force. The only federal case Cortesluna
cites to support his argument on this score is Wall v. County of Orange,
364 F.3d 1107 (9th Cir. 2004). But in Wall, the arresting officer suddenly
twisted the arm of a compliant, unarmed arrestee, slammed him face-first
into a nearby vehicle, put “extremely tight” handcuffs on him, and then
threw him by his handcuffed arms head-first into a patrol car. Id.
at 1109–10, 1112. Of course, nothing similar is involved here. Moreover,
in Wall, our finding of excessive force rested on the officer’s overly tight
handcuffing, and not on the officer’s movement of the suspect by his
handcuffs or handcuffed hands. See id. at 1112.
34 CORTESLUNA V. LEON
B
Alternatively, I conclude that, at a minimum, Rivas-
Villegas’s actions did not violate clearly established law and
that he therefore is entitled to qualified immunity. See
Pearson v. Callahan, 555 U.S. 223, 236 (2009). The majority
errs in holding otherwise.
Officers are entitled to qualified immunity in § 1983
actions unless they violate “clearly established” rights.
Reichle v. Howards, 566 U.S. 658, 664 (2012). “‘Clearly
established’ means that, at the time of the officer’s conduct,
the law was sufficiently clear that every reasonable official
would understand that what he is doing is unlawful.” District
of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (emphasis
added) (citations and internal quotation marks omitted).
Moreover, in explaining how to determine whether the law
was sufficiently clear for purposes of qualified immunity, the
Supreme Court has “repeatedly told courts—and the Ninth
Circuit in particular—not to define clearly established law at
a high level of generality.” Kisela v. Hughes, 138 S. Ct.
1148, 1152 (2018) (citations and internal quotation marks
omitted); see also City of Escondido v. Emmons, 139 S. Ct.
500, 503 (2019); City & County of San Francisco v. Sheehan,
575 U.S. 600, 613 (2015); Ashcroft v. al-Kidd, 563 U.S. 731,
742 (2011). This obligation to define clearly established law
with specificity “is particularly important in excessive force
cases.” Emmons, 139 S. Ct. at 503. As the Supreme Court
has explained:
“Specificity is especially important in the
Fourth Amendment context, where the Court
has recognized that it is sometimes difficult
for an officer to determine how the relevant
CORTESLUNA V. LEON 35
legal doctrine, here excessive force, will apply
to the factual situation the officer confronts.
Use of excessive force is an area of the law in
which the result depends very much on the
facts of each case, and thus police officers are
entitled to qualified immunity unless existing
precedent squarely governs the specific facts
at issue.”
Emmons, 139 S. Ct. at 503 (emphasis added) (quoting Kisela,
138 S. Ct. at 1153).
In concluding that “existing precedent squarely governs
the specific facts” of this case, see id., the majority relies
solely on our decision in LaLonde v. County of Riverside,
204 F.3d 947 (9th Cir. 2000). See Maj. Opin. at 16–18. In
my view, the facts of LaLonde are materially distinguishable
from this case and are therefore insufficient to have made
clear to “every reasonable” officer that the force Rivas-
Villegas used here was excessive. Wesby, 138 S. Ct. at 589.
In LaLonde, while responding to a noise complaint, a
police officer first tried to pin down an unarmed LaLonde and
then sprayed him in the face with pepper spray. 204 F.3d
at 952. After that, a different officer, while handcuffing
LaLonde, “deliberately dug his knee into LaLonde’s back
with a force that caused him long-term if not permanent back
injury.” Id. at 952, 959 n.17; see also id. at 952. The only
material similarities between LaLonde and this case are that
Rivas-Villegas briefly pressed his knee into Cortesluna’s
back while securing his arms for handcuffing; Cortesluna was
not then actively resisting; and Cortesluna claims that the
press of Rivas-Villegas’s knee has caused him continuing
pain. The majority finds those commonalities to be
36 CORTESLUNA V. LEON
dispositive, see Maj. Opin. at 17–18, but in doing so, it
ignores several critical differences between LaLonde and this
case.
In LaLonde, the officers were responding merely to a
neighbor’s complaint that LaLonde was making too much
noise in his apartment, see 204 F.3d at 950–51, whereas
Rivas-Villegas and his colleagues were responding to an
alleged incident of domestic violence that, according to the
police dispatch he heard, reportedly included the suspect’s
manual use of a chainsaw to break something in the house.
And LaLonde was unarmed, see 204 F.3d at 951, whereas
Cortesluna was carrying a pick tool when he first approached
the officers and, after putting that down, he still had a long
knife protruding from his left pocket (i.e., on the side where
Rivas-Villegas placed his knee). There is a very significant
difference between using a knee to hold down a person who
is suspected of a serious violent crime who is armed with a
knife (as in this case) and using a knee to hold down a noisy
neighbor armed with nothing more than a sandwich (as in
LaLonde). See id. at 951–52 (noting that LaLonde was
“holding a sandwich in his hand” and that, when the officer
first grabbed LaLonde, he “knocked the sandwich to the
floor”).
By ignoring the multiple critical differences between this
case and LaLonde, the majority thereby improperly defines
the legal rule established in LaLonde at too high a level of
generality. See Kisela, 138 S. Ct. at 1152. Indeed, the
practical effect of the majority’s ruling today will likely be to
eliminate the use of a knee to protectively hold down a non-
resisting suspect while handcuffing him. The majority
discounts that possibility, claiming that it has merely
reaffirmed that “police may not kneel on a prone and non-
CORTESLUNA V. LEON 37
resisting person’s back so hard as to cause injury.” See Maj.
Opin. at 19 (emphasis added). But this disregards the fact
that an officer on the scene cannot know whether the arrestee
will later claim ongoing subjective pain; the officer can only
know what his or her objective actions are and what the
arrestee’s contemporaneous response is. Here, the officers’
body-cameras’ audiotapes confirm that, from the moment he
was shot with the beanbags, Cortesluna moaned in pain
during his arrest and that Cortesluna did not say at the time
that the knee was hurting him. On this record, there was
nothing about the then-knowable circumstances that would
suggest to the officer that the force here was excessive.
Under the majority’s opinion—in which a later claim of
ongoing subjective pain from the use of a knee is all you need
to get to a jury—an officer would be taking a significant risk
by using a knee to secure an arrestee during handcuffing. The
majority discounts this concern, noting that our “tight-
handcuff cases” have not “eliminated handcuffs.” See Maj.
Opin. at 19. But our tight-handcuff cases have not done so
presumably because (unlike today’s flawed ruling) those
cases have not allowed arrestees to defeat summary judgment
on an excessive force claim merely by claiming ongoing
subjective pain. See, e.g., Arpin, 261 F.3d at 921–22;
Peterson v. Union Pac. R.R. Co., 480 F. App’x 874, 874 (9th
Cir. 2013); see supra at 31–33.
Once again, a panel of this court disregards the Supreme
Court’s repeated admonition that, in the excessive force
context, “police officers are entitled to qualified immunity
unless existing precedent ‘squarely governs’ the specific facts
at issue.” Kisela, 138 S. Ct. at 1153 (citation omitted).
Because neither LaLonde nor any other existing precedent
governs the specific facts presented here, Rivas-Villegas is
entitled to qualified immunity.
38 CORTESLUNA V. LEON
II
Finally, the majority reinstates Cortesluna’s state-law
claims and his claims under Monell v. Department of Social
Services, 436 U.S. 658 (1978), insofar as they relate to Rivas-
Villegas’s conduct. See Maj. Opin. at 20. Given that I
conclude that Rivas-Villegas did not use excessive force,
there is no predicate for Monell liability against the City.
And because I would thus affirm the district court’s judgment
with respect to all of the § 1983 claims, there is in my view
no basis for reversing the district court’s dismissal of the
pendent state-law claims without prejudice.
Accordingly, I would affirm the judgment of the district
court in its entirety. I respectfully dissent from the majority’s
decision to the extent that it fails to do so.