Zelaya v. Las Vegas Metropolitan Police Department

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IMA ILIU FLORES ZELAYA, individually No. 16-15316
and as Special Co-Administrator on behalf
of Estate of Luis Solano and ELIA D.C. No.
DELCARMEN SOLANO PATRICIO, 2:13-cv-01181-JAD-CWH
individually and as Special Co-
Administrator on behalf of Estate of Luis
Solano, MEMORANDUM *
Plaintiffs-Appellees,
v.
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT; et al.,
Defendants-Appellants,
and
BILL GILLESPIE, Sheriff and
NAPHCARE, INC.,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted February 16, 2017
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: TASHIMA and HURWITZ, Circuit Judges, and ADELMAN,** District
Judge.
After an arrest on drug charges, Luis Jersain Solano was held in the psychiatric
module of the Clark County Detention Center. During a free-time period, Solano
began pacing in the day room and appeared agitated. Las Vegas Metropolitan Police
Department (“LVMPD”) officers responded and attempted to restrain Solano. After
their initial attempts to do so were unsuccessful, four officers took Solano to the
ground and applied handcuffs. For at least 90 seconds after Solano was handcuffed
and had stopped resisting, three officers continued to pin him to the ground with
their bodies. When the officers got off Solano, he was unconscious. He died soon
thereafter.
In this suit, Solano’s estate and family allege claims under 42 U.S.C. § 1983and state law against the LVMPD officers involved in the incident. The district court
denied the officers’ motion for summary judgment asserting qualified immunity with
respect to the § 1983 claims and discretionary immunity with respect to the state law
claims. The officers appealed that ruling. We have jurisdiction over the qualified
immunity appeal as an appealable final decision, see Kwai Fun Wong v. United
**
The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
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States, 373 F.3d 952, 960 (9th Cir. 2004), and the state law discretionary immunity
appeal, see Liberal v. Estrada, 632 F.3d 1064, 1075 (9th Cir. 2011). We affirm.
1. A reasonable jury could find that the officers’ use of force was objectively
unreasonable and violated the Fourth Amendment. See Kingsley v. Hendrickson,
135 S. Ct. 2466, 2473 (2015). Video of the incident shows Solano motionless and
unresisting for more than 90 seconds while officers continued to pin him to the
ground with their body weight and bend his legs toward his torso. The medical
examiner concluded this force caused Solano’s death.
2. The alleged excessive force violated clearly established law. In Drummond
ex rel Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003), we held that
qualified immunity was not appropriate when a suspect was subdued and
handcuffed, yet officers “pressed their weight onto his neck and torso, and
maintained that pressure for a significant period of time.” Id. at 1063. It was thus
clearly established that continuing to press weight onto a detainee for a significant
period of time after the detainee is subdued violates the Fourth Amendment.
Although the officers in this case did not apply force to Solano for as long a period
as involved in Drummond, the video of the incident creates at least a disputed issue
of material fact whether they did so for a significant period of time after Solano
ceased resisting.
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3. The officers’ appeal from the district court’s refusal to grant the officers
summary judgment on the state law claims is premised entirely on their argument
that qualified immunity should have been granted on the federal claims and that the
state law claims stand in the same posture. Because we affirm the denial of qualified
immunity on the federal claims, in the circumstances of this case, affirmance of the
denial of discretionary immunity on the state law claims follows.
AFFIRMED.
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