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Civil Rights: 42 U.S.C. § 1983—Use of Excessive Force

Posted by Ted A. Schmidt | Jan 09, 2020 | 0 Comments

Civil Rights: 42 U.S.C. § 1983—Use of Excessive Force

Tuuamalemalo v. Greene, No. 18-156665 (9th Cir. December 24, 2019) (J. Fletcher)


Defendant, a Las Vegas police officer put plaintiff in a choke hold during an encounter at a concert. The choke hold rendered plaintiff unconscious and it took some time to revive him. Plaintiff sued the officer pursuant to 42 U.S.C. § 1983 alleging excessive force.  The defendant moved for summary judgment asserting qualified immunity.  The district court denied the motion and the defendant brought this interlocutory appeal. The Ninth Circuit Court of Appeals affirmed.

The defendant would have qualified immunity in this action if in apprehending plaintiff he used that amount of force which reasonably appears necessary to complete the arrest. Looking at the facts in the most favorable light to the plaintiff, after an altercation at a concert he was tackled by 5 officers from behind, was not resisting but was nonetheless put in a choke hold which rendered him unconscious for some time. Barnard v. Theobald, 721 F. 3d 1069 (9th Cir. 2013) is directly on point and holds that placing a non-resisting person in a choke hold violates the 4th Amendment prohibition against excessive force. This holding is likewise followed by the 2nd, 6th and 5th Circuits.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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