Schmidt, Sethi & Akmajian Blog

Torts—42 U.S.C. 1983 Claim for Excessive Force by Police

Posted by Ted A. Schmidt | Nov 13, 2020 | 0 Comments

Torts—42 U.S.C. 1983 Claim for Excessive Force by Police

Cortesluna v. Leon, No. 19-15105 (9th Cir., October 27, 2020) (J. Garber)


A 12 year old girl phoned the California Union City police department reporting her sister and mother were barricaded in a bedroom while her mother's drunk boyfriend (plaintiff) was attempting to assault them with a chainsaw. Police arrived at the house and saw the plaintiff through a window with only a beer in his hand. They ordered plaintiff out of the house. He complied. He appeared to have a crow bar in his hand and was told to drop it. He complied. He was told to walk towards the officers and ultimately to stop and get on his knees with hands over his head. He in fact stopped, but before he could kneel officer Kensic saw a knife in plaintiff's sweat pants. Plaintiff was told by officer Kensic not to lower his hands,”hands up” and when he did lower them, within 2 seconds, , officer Leon shot him twice with a beanbag with his shotgun. Plaintiff then again raised his hands over his head. He was then told to “get down” and as he lowered  himself to the ground officer Rivas-Villegas pushed him to the ground with his foot then kneeled on his back while pulling his hands behind his back and cuffing him.

Plaintiff brought suit under 42 U.S.C. § 1983 against Leon and Rivas-Villegas, for excessive force, Kensic for failing to intervene and the City under  Monell v. Department of Social Services,436 U.S. 658 (1978), for the officers' actions. The Federal District Court granted summary judgment to the individual officers finding the force used was objectively reasonable and that Kensic had no reasonable opportunity to intervene. The claim against the City was then dismissed.  The United States Court of Appeals for the Ninth Circuit affirmed in part and reversed in part.

In reviewing the district court's decision the court of appeals noted, it must determine “ (1) whether the facts taken in the light most favorable to the plaintiff show that the officer's conduct violated a constitutional right, and(2) whether that right was “clearly established at the time o fthe officer's actions, such that any reasonably well-trained officer would have known that his conduct was unlawful.”

The court of appeals affirmed the summary judgment against Leon and Kensic finding that Leon's conduct was objectively reasonable and that Kensic had no reasonable opportunity to intervene.  The court found the alleged crime was severe and that Leon faced an immediate threat when the plaintiff lowered his hands towards the knife. Firing the shotgun was objectively reasonable under these circumstances.

On the other hand, the court reversed the summary judgment as to Rivas-Villegas finding a question of fact as to whether he exercised excessive force in kneeling on plaintiff's back while he was lying face down. The court noted that serious injuries are not required where there is a “meaningful personal intrusion” in order to find the violation of a constitutional right. Further, LaLonde v. County of Riverside,204 F.3d 947, 952 (9th Cir.2000) established clear legal precedent putting a properly trained officer on notice that kneeling on a suspect while he lay face down might constitute excessive force.  In so ruling, the Monell claim against the City was likewise reversed for further consideration by the district court.

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".


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Our team works together - for you!

Our award-winning lawyers are backed by a talented, caring team of legal professionals, paralegals, bilingual assistants, notaries, and others - all dedicated to you, your case, and the compensation you deserve.

No fees and no costs until we win.

As such we always have your case and your best interest in mind. When you win, we win too by providing the best legal care possible.

Thorough investigation and preparation.

We tirelessly and thoughtfully prepare every case we represent as though it was going to trial. This lets insurance companies know that we are a force to be reckoned with. As such, we settle successfully 98% of the time.