Aleksandar MacKovski v. Ray Bex

FILED
NOT FOR PUBLICATION
FEB 7 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEKSANDAR MACKOVSKI, No. 18-55767
Plaintiff-Appellant, D.C. No.
8:11-cv-01538-CJC-DFM
v.
RAY BEX, Officer, City of Garden Grove MEMORANDUM*
Police Department,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted February 5, 2020**
Pasadena, California
Before: IKUTA, CHRISTEN, and LEE, Circuit Judges.
After a prior panel of this circuit reversed and remanded Aleksandar
Mackovski’s 42 U.S.C. § 1983 claim for excessive force, Mackovski v. City of
Garden Grove, 666 F. App’x 649, 653 (9th Cir. 2016), the district court ordered
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
briefing on whether Officer Ray Bex was entitled to qualified immunity. The court
subsequently granted summary judgment to Officer Bex on qualified immunity
grounds. Because the parties are familiar with the facts and procedural history of
this case, we do not recite them here.
To determine whether an officer is entitled to qualified immunity, a court
considers “(1) whether there has been a violation of a constitutional right; and (2)
whether that right was clearly established at the time of the officer’s alleged
misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014). A court may
consider these two factors in either order. Id. We resolve this appeal on the
“clearly established” prong.
Mackovski admits that there is no case directly on point establishing that the
force Officer Bex used was unreasonable. Plaintiffs do not need case law that is
exactly on point, but existing precedent must place the contours of the right
“beyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015)). Mackovski relies on Smith v. City of Hemet,
394 F.3d 689 (9th Cir. 2005) (en banc) and Curnow ex rel. Curnow v. Ridgecrest
Police, 952 F.2d 321 (9th Cir. 1991), but neither are sufficient to support his
burden. Therefore, Officer Bex is entitled to qualified immunity.
2
The law of the case doctrine does not apply to Mackovski’s current appeal
because the prior panel did not consider qualified immunity. See Milgard
Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir. 1990).
AFFIRMED.
3