Timothy McKibben v. William Knuth

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY MCKIBBEN, No. 18-17011
Plaintiff-Appellee, D.C. No. 3:17-cv-08009-JWS
v.
MEMORANDUM*
WILLIAM KNUTH, Officer; et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Arizona
John W. Sedwick, District Judge, Presiding
Argued and Submitted September 9, 2019
San Francisco, California
Before: GOULD, BEA, and FRIEDLAND, Circuit Judges.
Timothy McKibben brought a lawsuit under 42 U.S.C. § 1983 against
Sedona, Arizona police officer William Knuth alleging that Knuth used excessive
force in violation of the Fourth Amendment by taking down McKibben, pressing
his face into the ground, and crushing his hand. Knuth moved for summary
judgment on the basis of qualified immunity. The district court denied Knuth’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
motion, and he appealed. We affirm.
1. We have jurisdiction over Knuth’s appeal to the extent it turns on a legal
question. See Johnson v. Jones, 515 U.S. 304, 313 (1995). Knuth insists on appeal
that McKibben was resisting Knuth’s wristlock even prior to McKibben’s attempt
to spin away, despite the presence of some evidence to the contrary. We lack
jurisdiction to consider this factual dispute. Knuth also contends, however, that he
is entitled to qualified immunity regardless of how that dispute is resolved because
his use of force was objectively reasonable and was not prohibited by clearly
established law. We have jurisdiction to decide that legal question. See Plumhoff
v. Rickard, 572 U.S. 765, 772-73 (2014).
2. The district court did not err in denying Knuth qualified immunity.
Viewing the evidence in the light most favorable to McKibben, Knuth violated
clearly established law by taking down McKibben with a leg sweep. Knuth used
force significant enough to cause McKibben injuries that at least included fractures
or dislocations of multiple bones in his hand, broken skin on his face, and a black
eye. Even assuming McKibben actively resisted detention by attempting to spin
away from the wristlock, see Mattos v. Agarano, 661 F.3d 433, 445-46 (9th Cir.
2011) (en banc), a jury could find that the attempt was so likely to be futile that
McKibben—a 64-year-old man who weighed about 130 pounds—posed no threat
to Knuth. A jury could also find that McKibben was ninety yards away from a
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construction crew working in the area, so a reasonable officer would not have
perceived any threat to the workers. And it is undisputed that Knuth knew that
McKibben was only suspected of committing minor offenses. To the extent
McKibben posed no threat and was only resisting arrest for minor offenses, it was
clearly established that use of force sufficient to cause serious injury would be
unconstitutionally excessive. See LaLonde v. County of Riverside, 204 F.3d 947,
959 (9th Cir. 2000).
A jury could also find that Knuth continued applying excessive force after
McKibben was on the ground and fully controlled by Knuth. In his deposition,
McKibben testified that, while on the ground, he felt Knuth’s hand press his face
into the ground and felt his hand get crushed into the ground. It was clearly
established that “[g]ratuitous and completely unnecessary acts of violence by the
police during a seizure violate the Fourth Amendment.” Fontana v. Haskin, 262
F.3d 871, 880 (9th Cir. 2001); see also Headwaters Forest Def. v. County of
Humboldt, 240 F.3d 1185, 1199 (9th Cir. 2000), vacated and remanded on other
grounds, 534 U.S. 801 (2001).
3. Knuth concedes that his entitlement to state law immunity from
McKibben’s assault and battery claim rises and falls with Knuth’s entitlement to
qualified immunity. See Ariz. Rev. Stat. § 13-413 (“No person in this state shall be
subject to civil liability for engaging in conduct otherwise justified pursuant to the
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provisions of this chapter.” (emphasis added)); see also Ariz. Rev. Stat. § 13-409
(explaining when the use of force is “justified”). Because a jury could find that
Knuth’s use of force was objectively unreasonable, Knuth is not entitled to
immunity under Arizona law. See Marquez v. City of Phoenix, 693 F.3d 1167,
1176 (9th Cir. 2012).
Finally, state law immunity is inapplicable to McKibben’s negligence claim.
See Ryan v. Napier, 425 P.3d 230, 239 (Ariz. 2018) (holding that the justification
defense in Ariz. Rev. Stat. § 13-409 “is either redundant or immaterial, and
therefore inapplicable, in negligence actions brought against law enforcement
officers”).
AFFIRMED.
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