Davis v. City of Las Vegas , 478 F.3d 1048 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANKIE DAVIS, 
Plaintiff-Appellant,
v.
CITY OF LAS VEGAS, a political
subdivision of the State of
Nevada; LAS VEGAS METROPOLITAN
POLICE DEPARTMENT, a political
subdivision of the State of
Nevada; DAVID D. MILLER,
individually and in his official
capacity as a Las Vegas No. 04-17284
Metropolitan Police Officer;
D.C. No.
LEONARD MARSHALL, individually
and in his official capacity as a  CV-02-00007-
Las Vegas Metropolitan Police JCM/PAL
Officer; EXBER, INC., a Nevada OPINION
corporation, dba Las Vegas Club;
ALFRED LIBBY, individually and in
his official capacity as an emplyee
of the Las Vegas Club; PATRICK
LAPERA, individually and in his
capacity as Director of Security
for the Las Vegas Club; JOHN ORR,
individually and in his capacity as
an employee of the Las Vegas
Club; RICHARD MABE, individually
and in his capacity as an employee

2221
2222 DAVIS v. CITY OF LAS VEGAS
of the Las Vegas Club; SHANE 
MUNDELL, individually and in his
capacity as an employee of the 
Las Vegas Club,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted
October 19, 2006—San Francisco, California
Filed February 28, 2007
Before: Stephen Reinhardt, John T. Noonan, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Reinhardt
DAVIS v. CITY OF LAS VEGAS 2225
COUNSEL
Barry Levinson, Las Vegas, Nevada, for the plaintiff-
appellant.
Lyssa M. Simonelli & Robert McPeak, Las Vegas, Nevada,
for defendant-appellee David Miller.
OPINION
REINHARDT, Circuit Judge:
Once again we confront the question whether a police offi-
cer’s use of force during the arrest of an unarmed citizen was
sufficiently excessive to violate the citizen’s clearly-
established constitutional rights. Officer David Miller of the
Las Vegas Metropolitan Police Department responded to a
call from the Las Vegas Club Hotel & Casino informing him
2226 DAVIS v. CITY OF LAS VEGAS
that security personnel had encountered Frankie Davis read-
ing a magazine in an area of the Casino not open to the public.
After Davis, who had been handcuffed by Casino employees
and remained handcuffed throughout his encounter with Offi-
cer Miller, refused to consent to being searched by the officer,
Miller slammed him head-first into a wall several times,
pinned him against the floor, and punched him in the face. At
some point during this encounter, Miller fractured Davis’s
neck. Davis was unarmed at all times.1
Davis filed suit against Officer Miller and other defendants
under 42 U.S.C. § 1983, alleging that Miller used excessive
force in violation of the Fourth Amendment in effecting his
arrest. He also brought a claim against Miller under Nevada’s
battery statute. The district court granted Miller’s motion for
summary judgment as to both claims on the basis of qualified
immunity and Davis appealed. We reverse the district court’s
grant of summary judgment as to both claims and remand for
a trial on the merits.
I. BACKGROUND
The facts, according to Davis and the independent wit-
nesses who support his version of the events, are as follows:
On November 7, 2001, Security Officer Shane Mundell, a
Casino employee, found Frankie Davis reading a magazine
while sitting atop a stairwell in a non-public area of the estab-
lishment. Mundell radioed for backup and fellow Security
Officer Richard Mabe responded shortly thereafter. Mabe
instructed Davis to descend two flights of stairs and to
approach the security officers. Davis complied.
While Davis was coming down the stairs, Mabe pulled out
1
“Because we review a grant of summary judgment, we view the evi-
dence in the light most favorable to [Davis,] the nonmoving party, and
accept the version of all disputed facts most favorable to him.” Drummond
v. City of Anaheim, 343 F.3d 1052, 1054 n. 1 (9th Cir. 2003).
DAVIS v. CITY OF LAS VEGAS 2227
a set of handcuffs. Davis initially protested that handcuffs
were unnecessary, but after Mabe and Mundell informed him
that the handcuffs were for “everyone’s safety” and that they
intended to merely escort him off the property, Davis volun-
tarily placed his hands behind his back and was handcuffed by
Mundell.
Davis was then escorted to the Casino’s security office and
placed in a holding area. A Casino employee contacted the
Las Vegas Metropolitan Police Department, informed the dis-
patcher that they had someone in custody, and requested that
an officer be sent to the scene. Officer Miller eventually
arrived at the Casino’s security office in response to the call,
walked into the holding area, ordered Davis to stand, and con-
firmed that he was in handcuffs. Miller then patted Davis
down and asked him if he could search his pockets. Davis
declined to consent, but informed Miller that he was unarmed,
a fact that Miller was already aware of as the result of the pat-
down.
Notwithstanding Davis’s refusal to consent to a search,
Miller attempted to reach inside Davis’s left pocket to retrieve
Davis’s wallet. Davis rotated his hips away from Miller in an
attempt to prevent him from grabbing the wallet. Miller then
pushed Davis into a corner, pinning him face-first against the
wall, and again reached for the wallet. Davis pushed off the
wall toward Miller, and the two engaged in a brief pushing
and pulling match. Officer Miller then spun Davis around and
pushed him out of the holding area and into an adjacent hall-
way. He then slammed Davis head-first against the wall oppo-
site the holding area, and then swung him into another wall,
also head-first. One of these head-first impacts left a sizable
dent in the wall’s sheet rock. Miller then threw Davis face-
down onto the floor causing Davis’s teeth to strike the floor.
He landed on top of Davis, and placed his knee on Davis’s
back. Davis began wiggling and attempted to slide out from
underneath Miller because he was in pain. Miller then turned
2228 DAVIS v. CITY OF LAS VEGAS
Davis over and punched him in the face. In the course of Mil-
ler’s actions, he fractured Davis’s neck.
Ultimately, Davis stopped moving. Officer Miller com-
pleted his search, pulled Davis up from the floor, escorted him
off the property, placed him in a patrol car, and transported
him to the Las Vegas City Jail. During the ride to the jail,
Davis told Miller that he was in a great deal of pain. Upon
arrival at the jail, Miller arranged for Davis to be held pending
the filing of charges for obstructing a police officer. Davis
was subsequently transported to University Medical Center by
jail personnel, where he was diagnosed with a neck fracture.
The Police Department’s Internal Affairs Bureau conducted
an investigation of the incident and issued a report in which
it concluded that Officer Miller “did not use the minimal
amount of force necessary and had options other than punch-
ing the suspect in the face who was on the ground in hand-
cuffs.” Accordingly, the Department suspended Officer Miller
for ten hours and ordered him to participate in “Use of Force
Training.”2
In January of 2002, Davis filed suit against Miller and other
defendants, asserting, inter alia, a 42 U.S.C. § 1983 claim for
use of excessive force and a state law battery claim against
Miller. Miller and other defendants filed motions for sum-
mary judgment. The district court granted Miller’s motion for
summary judgment in full. Ruling from the bench, the court
reasoned that summary judgment should be granted as to
Davis’s excessive force claim because “it’s not clearly exces-
sive force,” and thus “it’s not so clear that Officer Miller is
not entitled to qualified immunity. He’s entitled to qualified
immunity, and he’s, therefore, dismissed from the case.” As
to Davis’s state law battery claim, the court ruled as follows:
“let’s see, Officer Miller, the state law claims, they were all
2
Officer Miller had been called before Internal Affairs on at least four
prior occasions, twice for complaints alleging excessive use of force.
DAVIS v. CITY OF LAS VEGAS 2229
discretionary. He’s entitled to immunity on those claims as
well.”
On June 25, 2004 the court entered an order granting sum-
mary judgment to Officer Miller and his supervising officer,
and granting partial summary judgment to the Department.
Davis then requested certification of the order pursuant to
Federal Rule of Civil Procedure 54(b). The court granted the
request, certified the order, and entered judgment in favor of
Officer Miller and his supervising officer. Davis then filed
this timely appeal challenging the grant of summary judgment
to Miller. We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we reverse.
II. DISCUSSION
A. Standard of Review
A district court’s grant of summary judgment is reviewed
de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004).
Its decision as to whether an officer is entitled to qualified
immunity is likewise reviewed de novo. Bingham v. City of
Manhattan Beach, 341 F.3d 939, 945 (9th Cir. 2003).
B. The Section 1983 Claim
Davis’s principal argument on appeal is that the district
court erred in concluding that Officer Miller was entitled to
qualified immunity with respect to his excessive force claim.
Specifically, Davis argues that (1) his Fourth Amendment
rights were violated when Officer Miller fractured his neck by
slamming him head-first into a wall several times and punch-
ing him in the face while he was pinned to the floor, and (2)
that a reasonable officer in Miller’s position would have
known that his conduct was unlawful.
In Saucier v. Katz, the Supreme Court held that a court
should determine whether an officer is entitled to qualified
2230 DAVIS v. CITY OF LAS VEGAS
immunity by first deciding whether, “[t]aken in the light most
favorable to the party asserting the injury, [ ] the facts alleged
show the officer’s conduct violated a constitutional right.”
533 U.S. 194, 201 (2001) (citing Siegert v. Gilley, 500 U.S.
226, 232 (1991)). If so, the court must determine whether the
right violated was clearly established such that “it would be
clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.” Id. at 202 (citing Wilson v.
Layne, 526 U.S. 603, 615 (1999)). If we conclude that both
of these inquiries are answered in the affirmative, the officer
is not entitled to qualified immunity. Id. at 201.
1
[1] In assessing an excessive force claim, we must first
“identify[ ] the specific constitutional right allegedly infringed
by the challenged application of force. . . . The validity of the
claim must then be judged by reference to the specific consti-
tutional standard which governs that right.” Graham v. Con-
nor, 490 U.S. 386, 394 (1989). Here, Davis claims that Offi-
cer Miller violated his rights under the Fourth Amendment.3
“A Fourth Amendment claim of excessive force is analyzed
under the framework outlined by the Supreme Court in Gra-
ham v. Connor.” Smith v. City of Hemet, 394 F.3d 689, 700
(9th Cir. 2005) (en banc). Under Graham, “all claims that law
enforcement officers have used excessive force—deadly or
not—in the course of an arrest, investigatory stop, or other
‘seizure’ . . . should be analyzed under the Fourth Amend-
ment and its ‘reasonableness’ standard.” 490 U.S. at 395. This
analysis “requires balancing the ‘nature and quality of the
intrusion’ on a person’s liberty with the ‘countervailing gov-
3
Specifically, Davis alleges that Officer Miller violated this right both
by using “deadly force” in a circumstance where he could not lawfully do
so, and that the force used was “unreasonable and excessive.” Because we
conclude that the district court’s decision to grant summary judgment was
erroneous with respect to Davis’s claim that the force used was “unreason-
able and excessive,” we do not analyze whether reversal is also warranted
because Officer Miller unlawfully used “deadly force.”
DAVIS v. CITY OF LAS VEGAS 2231
ernmental interests at stake’ to determine whether the force
used was objectively reasonable under the circumstances.”
Smith, 394 F.3d at 701. Thus, “[w]e first assess the quantum
of force used to arrest [the plaintiff]” and then “measure the
governmental interests at stake by evaluating a range of fac-
tors.” Deorle v. Rutherford, 272 F.3d 1272, 1279-80 (9th Cir.
2001). Factors we consider in assessing the government inter-
ests at stake include “[1] the severity of the crime at issue, [2]
whether the suspect poses an immediate threat to the safety of
the officers or others, and [3] whether he is actively resisting
arrest or attempting to evade arrest by flight.” Graham, 490
U.S. at 396. Courts may also consider “the availability of
alternative methods of capturing or subduing a suspect.”
Smith, 394 F.3d at 701.
Davis contends that an analysis of Officer Miller’s conduct
under the Graham factors demonstrates that Miller’s decision
to slam the handcuffed Davis head-first into a wall several
times and to punch him in the face while he was immobilized
on the ground was unreasonable. Specifically, he argues that
(1) trespassing on the Casino’s premises and obstructing a
police officer are relatively minor offenses; (2) he did not
pose an immediate threat to Officer Miller or anyone else
because he was handcuffed, surrounded by several security
guards, and was not carrying any weapons; (3) he was not
actively resisting arrest or attempting to flee but was instead
resisting Miller’s unlawful attempts to seize his wallet; and
(4) Miller punched him in the face when he was already
sprawled flat on the floor with his hands cuffed behind him.
This is hardly the first case in which we have analyzed sim-
ilar claims of excessive force by police officers. In Smith v.
City of Hemet, for example, a resident of that city alleged that
police officers used excessive force when they responded to
a 911 call from his wife, who claimed that he was physically
abusing her. 394 F.3d at 693. The responding officers were
aware that Smith was unarmed and that he was in his pajamas,
but they nonetheless “slammed Smith against the wall, threw
2232 DAVIS v. CITY OF LAS VEGAS
him to the ground, slid him off the porch while face down,
pepper-sprayed him repeatedly, and either permitted or
instructed [a police dog] to attack him on three occasions, at
least one such attack occurring while the officers had him
pinned to the ground.” Id. at 702 (internal citation omitted).
Smith filed an action against the officers claiming that they
had used excessive force in subduing and arresting him. Id. at
694. The district court granted the officers’ motion for sum-
mary judgment. Id. at 695. On appeal, we reversed, explaining
that
[b]ecause [the excessive force inquiry] nearly always
requires a jury to sift through disputed factual con-
tentions, and to draw inferences therefrom, we have
held on many occasions that summary judgment or
judgment as a matter of law in excessive force cases
should be granted sparingly. . . . This is because such
cases almost always turn on a jury’s credibility
determinations.
Id. at 701 (internal quotations omitted)(second alteration in
original). Analyzing the officer’s conduct in light of the Gra-
ham factors (and accepting Smith’s version of the facts as cor-
rect), we determined that Smith did not pose an immediate
threat because he was unarmed and in his pajamas, notwith-
standing the fact that, prior to being handcuffed, he disre-
garded the officers’ orders, refused to put up his hands, and
was shouting expletives. Id. at 702. Second, we stated that an
allegation of domestic violence did not “warrant the conclu-
sion that Smith was a particularly dangerous criminal or that
his offense was especially egregious.” Id. at 702-03. Third,
we noted that although Smith continued to ignore the officers’
orders and physically resisted arrest, he did not attack the offi-
cers or “show[ ] any signs of fleeing the area.” Id. at 703.
Finally, we considered the “availability of alternative methods
of capturing or subduing a suspect,” concluding that “the offi-
cers could and should have used control holds to complete the
DAVIS v. CITY OF LAS VEGAS 2233
arrest rather than . . . sic[cing the canine] on him once they
had him restrained on the ground.” Id.
[2] Here, as in Smith, an assessment of the facts in the light
most favorable to Davis shows that his Fourth Amendment
rights were violated. We start our analysis by assessing the
quantum of force used against Davis. We do so because the
“factors articulated in Graham, and other factors bearing on
the reasonableness of a particular application of force are not
to be considered in a vacuum but only in relation to the
amount of force used to effect a particular seizure.” Id. at 701
(quoting Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994).
Looking at the facts in the light we must for purposes of this
appeal, Officer Miller’s use of force was extremely severe.
After Davis refused to consent to being searched, Miller
forcefully slammed him head-first against a wall, and then
swung him into another wall, also head-first, thereby breaking
his neck. Officer Miller then threw Davis face-down onto the
floor, placed his knee on his back, and then turned him over
and punched him in the face.
[3] Next, we must assess the governmental interest that
might justify the use of such force under the Graham factors,
starting with an assessment of “the severity of the crime at
issue.” Graham, 490 U.S. at 396. Trespassing and obstructing
a police officer, as those offenses were committed by Davis,
are by no means such serious offenses as to provide an officer
with a reasonable basis for subduing a person by the means
employed by Officer Miller. Indeed, these offenses are much
less serious than the domestic violence offense at issue in
Smith, which we held did not “warrant the conclusion that
[the plaintiff] was a particularly dangerous criminal or that his
offense was especially egregious.” Id. at 702-03. Here, too,
“the nature of the crime[s] at issue provide[ ] little, if any,
basis for the officer[’]s[ ] use of physical force.” Id. at 703.
[4] Second, we assess “whether the suspect pose[d] an
immediate threat to the safety of the officer[ ] or others.” Gra-
2234 DAVIS v. CITY OF LAS VEGAS
ham, 490 U.S. at 396. Here, Davis posed no immediate threat
to Officer Miller or to anyone else. Davis was unarmed, in
handcuffs, and never attempted to harm Miller or anyone else
in any way. Indeed, even if Davis had wanted to harm Miller,
it would have been difficult for him to do so given that he was
in handcuffs, was confined within a small area, and was sur-
rounded by security guards. Thus, nothing in the record sug-
gests that Davis posed an immediate threat to Miller’s safety
or to that of anyone else.
[5] Next we consider whether Davis was “actively resisting
arrest or attempting to evade arrest by flight.” Graham, 490
U.S. at 396. Although Davis was somewhat uncooperative
and resisted Officer Miller’s attempts to search his pockets, at
no point during the encounter did he attempt to flee, nor could
he have done so in light of the fact that he was in handcuffs,
surrounded by security guards, and confined in a small hold-
ing area. Thus, Davis was neither actively resisting arrest nor
attempting to flee.
[6] Finally, we consider whether Miller could have used
other methods to accomplish the search of Davis’s pocket,
Smith, 394 F.3d at 703; Chew, 27 F.3d at 1441 n. 5, assuming
that he had lawful cause to do so. Viewing the facts in the
light most favorable to Davis, it is clear that other, less abu-
sive methods of conducting the search were available. Miller
could have attempted to persuade Davis to submit to the
search, could have obtained the assistance of the security
guards who were present, could have used less force than he
did in seeking to attain his objective, or, having already con-
ducted a pat-down, could have simply waited to conduct the
search until he had delivered Davis to the jail. Indeed, Miller
was reprimanded by the Police Department because he “did
not use the minimal amount of force necessary and had
options other than punching the suspect in the face who was
on the ground in handcuffs to gain compliance.”
[7] In sum, the force used by Officer Miller was severe, the
crime Davis had committed was minor, the danger to Officer
DAVIS v. CITY OF LAS VEGAS 2235
Miller was minimal as was any risk of flight, and there were
many less abusive means through which Miller could have
accomplished his objective. Thus, weighing the severity of the
force used against the governmental interests at stake, we
have no difficulty in concluding that the facts here at issue,
viewed in the light most favorable to Davis, demonstrate that
Officer Miller’s actions were unreasonable and that Davis’s
Fourth Amendment rights were violated.
2
[8] Even if Officer Miller’s conduct violated Davis’s
Fourth Amendment rights, Miller is entitled to qualified
immunity if the right violated was not “clearly established.”
Saucier, 533 U.S. at 201-02. The “dispositive inquiry in deter-
mining whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Id. at 202. Even
where there is no federal case analyzing a similar set of facts,
a plaintiff may nonetheless demonstrate that a reasonable offi-
cer would have known that the force he used was excessive.
Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001).
“Otherwise, officers would escape responsibility for the most
egregious forms of conduct simply because there was no case
on all fours prohibiting that particular manifestation of uncon-
stitutional conduct.” Id. at 1286. In assessing the reasonable-
ness of an officer’s conduct where there is no case law
directly on point, “the salient question that the Court of
Appeals ought to . . . ask[ ] is whether the state of the law [at
the time of the alleged wrong] gave [the defendants] fair
warning that their alleged treatment of [the plaintiff] was
unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).
Here, we have no question that any reasonable officer
would have known that the force used was excessive, from an
elementary understanding of the obligations of law enforce-
ment officers toward all individuals in the community they
serve as well as from a review of the well-established law. As
2236 DAVIS v. CITY OF LAS VEGAS
noted earlier, Smith is only one of a number of our cases that
inform law enforcement officers of their obligation under the
Constitution to refrain from the use of excessive force. In
Drummond v. City of Anaheim, for example, we held that “no
federal case directly on point [was needed] to establish” that
the conduct at issue violated clearly established law. 343 F.3d
1052, 1062 (9th Cir. 2003). Drummond suffered from a
severe mental illness and, when he ran out of medication,
started hallucinating and became paranoid. Id. at 1054. His
neighbor called to request police assistance because he was
afraid that Drummond would hurt himself. Id. When police
officers responded, they decided to take him into custody for
his own safety. Id. The officers “knock[ed] Drummond to the
ground, where the officers cuffed his arms behind his back as
Mr. Drummond lay on his stomach.” Id. Two officers then
placed their knees on Drummond’s back and neck and
remained there, even after it became obvious that he was hav-
ing difficulty breathing under their weight. Id. at 1054-55.
Drummond eventually lost consciousness and suffered perma-
nent brain damage due to lack of oxygen. Id. at 1055. This
court held that “[v]iewing the evidence in the light most
favorable to [the plaintiff] . . . the officers had ‘fair warning’
that the force they used was constitutionally excessive even
absent a Ninth Circuit case presenting the same set of facts.
. . . Any reasonable officer should have known that such con-
duct constituted the use of excessive force.” Id. at 1061.
[9] Examining the facts here at issue in the light most
favorable to Davis, we readily reach the same conclusion.
Any reasonable officer in Officer Miller’s position would
have known, in light of the Graham factors discussed supra
and our case law interpreting them, that swinging a hand-
cuffed man into a wall head-first multiple times and then
punching him in the face while he lay face-down on the
ground, and breaking his neck as a result, was unnecessary
and excessive. See e.g., Chew, 27 F.3d at 1436, 1443 (holding
that, under Graham, the fact that the defendant officer used
“severe force” to arrest a suspect who did not pose an imme-
DAVIS v. CITY OF LAS VEGAS 2237
diate threat to the safety of police officers was sufficient to
preclude summary judgment for the officer, notwithstanding
the fact that the suspect had attempted to flee and was the sub-
ject of three outstanding felony warrants); Palmer v. Sander-
son, 9 F.3d 1433, 1434-36 (9th Cir. 1993) (holding that an
officer who, during a traffic stop, jerked the plaintiff out of
his car, handcuffed him extremely tightly, forcefully shoved
him into the back of a patrol car, and refused to loosen his
handcuffs was not entitled to qualified immunity because no
reasonable officer would have thought this conduct was con-
stitutional); Hansen v. Black, 885 F.2d 642, 645 (9th Cir.
1989) (holding that police officers used excessive force when
they roughly handcuffed plaintiff Hansen thereby injuring her
wrist and arm after she tried to prevent them from collecting
evidence and called one of the officers a “son of a bitch”).
Indeed, the Department’s own Internal Investigations Bureau
found Officer Miller’s actions unreasonable and disciplined
him for “not [using] the minimal amount of force necessary”
in a situation in which he had multiple, less forceful means
available through which to accomplish his objective. Cf.
Deorle, 272 F.3d at 1283. Thus, viewing the facts in the light
most favorable to Davis, it is clear that a reasonable officer in
Miller’s position would have known that the conduct in which
he engaged constituted excessive force.
Officer Miller’s arguments to the contrary are far from per-
suasive. In support of his argument that a reasonable officer
would not have known that he acted unlawfully, he cites not
a single Ninth Circuit case. His reliance on out-of-circuit
authority, namely Hinton v. City of Elwood, 997 F.2d 774
(10th Cir. 1993) and Melton v. Shivers, 496 F. Supp. 781
(M.D. Ala. 1980), is misplaced. In Hinton, the plaintiff
shoved a police officer and then walked away when he was
told that he was under arrest. 997 F.2d at 776. Two officers
then wrestled him to the ground and attempted to handcuff
him. Id. at 777. The plaintiff forcefully resisted being hand-
cuffed by kicking, flailing his arms, and attempting to bite the
officers. Id. The officers used only as much force as was nec-
2238 DAVIS v. CITY OF LAS VEGAS
essary to subdue him, eventually using a stun gun for that pur-
pose. Id. Unlike the plaintiff in Hinton, Davis was handcuffed
for the duration of his encounter with Officer Miller, did not
attempt to bite or attack him and did not attempt to flee. Hin-
ton is quite obviously inapposite.
Melton is similarly unhelpful to Officer Miller. There Mel-
ton unlawfully entered one apartment and attempted to break
into another. 496 F. Supp. at 783. When police pulled him
over to question him, he drove away as they approached his
vehicle. Id. A chase ensued during which Melton attempted to
run a police car off the road. Id. The officers caught up to
Melton four times, but each time he sped away just before
they were able to apprehend him. Id. Finally, they rammed
Melton’s car and were able to stop it. Id. at 784. Although
three officers surrounded him, Melton attempted to flee and
a struggle ensued during which Melton kicked one of the offi-
cers down a hill. Id. After a fourth officer arrived, the officers
were finally able to subdue and handcuff him. Id. Here, unlike
in Melton, Davis was handcuffed when his encounter with
Officer Miller commenced, and Miller had already subdued
Davis when he administered the final blow. Furthermore,
Davis never attempted to flee nor did he injure or attempt to
injure anyone. Thus, neither of the cases cited by Officer Mil-
ler supports his argument that a reasonable officer in his posi-
tion would not have known that his conduct was unlawful.
[10] Because we conclude that a reasonable officer in Mil-
ler’s position would have known that the conduct complained
of by Davis constituted excessive force, we hold that Officer
Miller is not entitled to qualified immunity and that the dis-
trict court erred in granting summary judgment on that basis.
C. The State-Law Battery Claim
Davis argues that the district court erred in granting Officer
Miller’s motion for summary judgment as to his state law bat-
tery claim. Miller asserts that Davis waived his right to appeal
DAVIS v. CITY OF LAS VEGAS 2239
this issue by failing to oppose Miller’s motion for summary
judgment with respect to that claim. Davis appears to concede
that he did not oppose summary judgment as to the battery
claim in his written opposition to Miller’s motion for sum-
mary judgment, but contends that he preserved the right to
appeal this issue by filing his own motion for partial summary
judgment in which he sought summary judgment as to the bat-
tery claim.
[11] “[I]t is a general rule that a party cannot revisit theo-
ries that it raises but abandons at summary judgment.”
Bankamerica Pension Plan v. McMath, 206 F.3d 821, 826
(9th Cir. 2000) (citing USA Petroleum Co. v. Atlantic Rich-
field Co., 13 F.3d 1276, 1284 (9th Cir. 1994)). “A party aban-
dons an issue when it has a full and fair opportunity to
ventilate its views with respect to an issue and instead chooses
a position that removes the issue from the case.” Id. However,
where, as here, a plaintiff seeks summary judgment as to a
particular claim, it cannot be said that he has “taken a position
that removes the issue from the case” by conceding that the
defendant is entitled to summary judgment. To the contrary,
in seeking summary judgment on his own behalf, a plaintiff
expressly rejects the view that the defendant is entitled to
summary judgment with respect to the claims on which the
plaintiff seeks that relief. Accordingly, because Davis sought
summary judgment with respect to the battery claim, he has
not waived his right to challenge the district court’s grant of
summary judgment to Officer Miller with respect to that
claim.
Davis contends that the district court erred in concluding
that Officer Miller was immune from suit under state law and
therefore entitled to summary judgment with respect to the
battery claim. In support of this argument, he relies on Yada
v. Simpson for the proposition that “a police officer who uses
more force than is reasonably necessary to effect a lawful
arrest commits a battery upon the person arrested.” 112 Nev.
254, 256 (Nev. 1996). This quotation does not constitute a
2240 DAVIS v. CITY OF LAS VEGAS
holding; rather, it is the court’s iteration of a jury instruction
given in that case. In Yada, the Nevada Supreme Court upheld
a jury verdict awarding damages on the theory that a police
officer committed battery when he used excessive force in
arresting the plaintiff. In upholding the verdict, the court
noted that the jury had been instructed that “a police officer
who uses more force than is reasonably necessary to effect a
lawful arrest commits a battery upon the person arrested.” Id.
However, the court did not rule directly on the question
whether the jury instruction was an accurate statement of
Nevada law. Instead, the court upheld the verdict because it
was “supported by substantial evidence” and was not “clearly
erroneous in light of all the evidence presented,” without
addressing whether the claim was permissible under Nevada
law. Id. at 256-57.
[12] As a general matter, under Nevada Revised Statute
(NRS) 41.032 “ ‘no action may be brought’ against any public
officer based upon ‘the failure to exercise or perform a discre-
tionary function . . . whether or not the discretion involved is
abused.’ ” Maturi v. Las Vegas Metro. Police Dept., 110 Nev.
307, 309 (Nev. 1994); see also Ortega v. Reyna, 114 Nev. 55,
62 (Nev. 1998). A police officer exercises discretion and is
thus generally immune from suit where the act at issue
required “personal deliberation, decision, and judgment,”
rather than “obedience to orders, or the performance of a duty
in which the officer is left no choice of his own.” Maturi, 110
Nev. at 309. An officer’s decision as to how to accomplish a
particular seizure or search is generally considered a discre-
tionary determination under Nevada law, and officers are
therefore immune from suit as to state law claims arising
therefrom in most cases. See Ortega, 114 Nev. at 62 (police
officer entitled to immunity where he used his judgment in
stopping the plaintiff, arresting her, and taking her to jail);
Maturi, 110 Nev. at 309 (arresting officers’ decision to hand-
cuff plaintiff behind his back rather than in front was discre-
tionary and the officers are therefore entitled to immunity);
DAVIS v. CITY OF LAS VEGAS 2241
see also Carey v. Nevada Gaming Control Bd., 279 F.3d 873,
878 (9th Cir. 2002).
[13] However, where an officer’s actions are “attributable
to bad faith, immunity does not apply whether an act is discre-
tionary or not.” Falline v. GNLV Corp., 107 Nev. 1004, 1009
(Nev. 1991); see also Jordan v. State Dep’t of Motor Vehi-
cles, 121 Nev. 44, 49 n.66 (Nev. 2005). As the Nevada
Supreme Court explained,
NRS 41.032(2) provides immunity to contractors,
officers, employees, agents and political subdivi-
sions of the State for the performance or non-
performance of discretionary acts “whether or not
the discretion involved is abused.” . . . However, an
abuse of discretion necessarily involves at least two
factors: (1) the authority to exercise judgment or dis-
cretion in acting or refusing to act on a given matter;
and (2) a lack of justification for the act or inaction
decided upon. Bad faith, on the other hand, involves
an implemented attitude that completely transcends
the circumference of authority granted the individual
or entity. In other words, an abuse of discretion
occurs within the circumference of authority, and an
act or omission of bad faith occurs outside the cir-
cumference of authority. Stated otherwise, an abuse
of discretion is characterized by an application of
unreasonable judgment to a decision that is within
the actor’s rightful prerogatives, whereas an act of
bad faith has no relationship to a rightful prerogative
even if the result is ostensibly within the actor’s
ambit of authority.
Falline, 107 Nev. at 1009 n.3 (emphasis in original). Thus,
where an officer arrests a citizen in an abusive manner not as
the result of the exercise of poor judgment as to the force
required to make an arrest, but instead because of hostility
toward a suspect or a particular class of suspects (such as
2242 DAVIS v. CITY OF LAS VEGAS
members of racial minority groups) or because of a willful or
deliberate disregard for the rights of a particular citizen or cit-
izens, the officer’s actions are the result of bad faith and he
is not immune from suit. See id. No officer has the “rightful
prerogative” to engage in a malicious battery of a handcuffed
citizen who is neither actively resisting arrest nor seeking to
flee. Such an action, motivated by hostility or willful disre-
gard for the law, is without the officer’s “circumference of
authority,” even if “ostensibly within [his] ambit of authori-
ty.” Id.
[14] Assessing the facts here at issue in the light most
favorable to Davis, a reasonable juror could find that Officer
Miller’s decision to slam Davis head-first into a wall multiple
times and to punch him in the face while he lay prone on the
ground was not merely an exercise or abuse of discretion but
instead constituted a deliberate and willful disregard for the
law, or malicious conduct motivated by Officer Miller’s ani-
mosity toward Davis on account of his refusal to consent to
being searched or for some other reason. Whether Officer
Miller’s actions were in bad faith is a determination that may
not be made at summary judgment, at least not where, as here,
there are contested issues of material fact with respect to Offi-
cer Miller’s conduct and his motivation. Accordingly, the dis-
trict court erred in granting summary judgment to Officer
Miller on the basis of statutory immunity.
III. CONCLUSION
For the forgoing reasons, we reverse the district court’s
grant of summary judgment to Officer Miller with respect to
Davis’s § 1983 excessive force claim and his state law battery
claim and remand for trial.
REVERSED and REMANDED.