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

Tuuamalemalo v. Greene, No. 18-156665 (9^th Cir. December 24, 2019) (J. Fletcher) https://law.justia.com/cases/federal/appellate-courts/ca9/18-15665/18-15665-2019-12-24.html

USE OF CHOKE HOLD ON A NON-RESISTING RESTRAINED PERSON VIOLATES 4^TH AMENDMENT PROHIBITION AGAINST USE OF EXCESSIVE FORCE

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 (9^th Cir. 2013) is directly on point and holds that placing a non-resisting person in a choke hold violates the 4^th Amendment prohibition against excessive force. This holding is likewise followed by the 2nd, 6^th and 5^th Circuits.