Cluse v. Rowden

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 29 2024

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

DANIEL WILLIAM CLUSE, No. 24-2045

D.C. No.

Plaintiff - Appellee, 3:21-cv-08169-SMB-DMF

v. MEMORANDUM*

TRAVIS JAMES ROWDEN, in his

individual and official capacities,

Defendant - Appellant,

and

COUNTY OF COCONINO, JIM

DRISCOLL, Sheriff,

Defendants.

Appeal from the United States District Court

for the District of Arizona

Susan M. Brnovich, District Judge, Presiding

Argued and Submitted November 19, 2024

San Jose, California

Before: GRABER, FRIEDLAND, and BUMATAY, Circuit Judges.

Dissent by Judge BUMATAY.

Plaintiff Daniel William Cluse brought this excessive-force action, pursuant

to 42 U.S.C. § 1983, against Coconino County and officers from the County

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

Sheriff’s Department, including, as relevant here, Deputy Sheriff Travis James

Rowden. The district court denied in part Rowden’s motion for summary

judgment, which was premised on qualified immunity, and Rowden timely filed an

interlocutory appeal. Exercising our jurisdiction to review de novo issues of law

determining entitlement to qualified immunity, Williams v. City of Sparks, 112

F.4th 635, 642 (9th Cir. 2024), we affirm.

1. The district court ruled that there are disputed issues of material fact. The

disputed facts summarized by the district court pertain primarily to what happened

after Rowden used his knee to pin Plaintiff—who was, up to that moment, lying

prone and face-down on the ground with arms outstretched. According to

Rowden, Plaintiff immediately moved his hands under his body, twisted and turned

onto his left side, and pinned his left arm and hand underneath him, actions that

Rowden characterizes as Plaintiff’s actively resisting arrest. But according to

Plaintiff, he moved his hands and arms inward underneath his shoulders, but not

downward, and only as a reflexive response to the pain caused by Rowden’s

jumping onto his back.

As the above summary shows, both parties agree that Plaintiff moved his

hands when Rowden jumped on him. Nevertheless, the district court determined

that a question of fact remains as to whether Plaintiff was still “pinned face-down

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on the ground with his arms outstretched” when Rowden began to strike him in the

head. Rowden argues that the district court erred in making that determination

because bodycam footage plainly shows that Plaintiff’s hands moved before the

punches began. We agree. See id. (explaining that whether “the district court

failed to review the facts in the ‘light depicted in the videotape’” is a question of

law (quoting Hughes v. Rodriguez, 31 F.4th 1211, 1218 (9th Cir. 2022))). In the

video, Plaintiff’s hands move toward his shoulders when Rowden pins him, and

Plaintiff’s hands are in front of his upper chest when Rowden throws the first

punch.

Although the video evidence contradicts the district court in that respect, the

footage does not contradict Plaintiff’s assertion that he cooperated with the officers

once they identified themselves and gave him instructions and that he moved his

hands upward only briefly in response to sudden pain. The video also confirms

Plaintiff’s assertion that he was shirtless and thus had no garment to conceal a

weapon near where his hands moved. By the time Rowden approached Plaintiff,

Plaintiff was lying motionless on the ground, surrounded by armed officers, with

his arms outstretched, as the officers had commanded. The video shows that, when

Rowden applied his knee to Plaintiff’s back, Plaintiff cried out in pain and his

hands jerked up to his shoulders. Plaintiff’s right hand is visible near his right

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shoulder and, as soon as Plaintiff was turned onto his left side, Rowden struck him

in the head repeatedly. By that point, the video shows that Plaintiff’s hands were

visible in front of his chest and were not pinned underneath him.

Because the record does not contradict Plaintiff’s version of events, we must

resolve all factual disputes and draw all reasonable inferences in Plaintiff’s favor

when analyzing whether Rowden is entitled to qualified immunity as a matter of

law. Scott v. Smith, 109 F.4th 1215, 1222 (9th Cir. 2024).

2. To determine whether Rowden used unreasonable force, for purposes of

evaluating qualified immunity’s constitutional-violation prong, we ask “whether it

would be objectively reasonable for [Rowden] to believe that the amount of force

employed was required by the situation he confronted.” Hart v. City of Redwood

City, 99 F.4th 543, 548–49 (9th Cir. 2024) (quoting Wilkins v. City of Oakland,

350 F.3d 949, 954 (9th Cir. 2003)), reh’g en banc denied, 2024 WL 4611952 (9th

Cir. Oct. 30, 2024). On that topic, the parties dispute whether Rowden had—due

to the movement of Plaintiff’s hands—an objectively reasonable belief that

Plaintiff (1) posed an immediate threat to the officers or (2) was actively resisting

arrest when Rowden began to hit him. See id. at 549 (explaining the importance of

those two factors in the unreasonable-force inquiry).

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Viewing all facts and reasonable inferences in Plaintiff’s favor, a rational

jury could find that Plaintiff neither posed a threat nor was resisting arrest and,

therefore, that Rowden’s use of force exceeded what was reasonable in the

circumstances. See Blankenhorn v. City of Orange, 485 F.3d 463, 480 (9th Cir.

2007) (holding that a rational jury could find an officer’s punches unjustified if the

plaintiff did not pin his arms underneath his body); Davis v. City of Las Vegas,

478 F.3d 1048, 1055–56 (9th Cir. 2007) (ruling that an officer was not entitled to

qualified immunity in part because the plaintiff did not pose an “immediate threat”

to anyone’s safety and was “neither actively resisting arrest nor attempting to

flee”).

3. Similarly, if Plaintiff’s version of the facts is believed, Blankenhorn

clearly informed Rowden that punching a non-resisting and prone arrestee in the

face and head with a closed fist constitutes excessive force. See Hart, 99 F.4th at

555 (describing qualified immunity’s clearly-established prong); Blankenhorn, 485

F.3d at 481 (holding in 2007 that a reasonable officer was “on notice that punching

[an arrestee] to free his arms when, in fact, he was not manipulating his arms in an

attempt to avoid being handcuffed” constituted excessive force); see also Andrews

v. City of Henderson, 35 F.4th 710, 719 (9th Cir. 2022) (holding that Blankenhorn

“clearly established” that an officer uses excessive force in violation of the Fourth

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Amendment by piling on top of a non-resisting suspect who was “‘relatively

calm’” and who posed “little threat” to the officer’s safety (quoting Blankenhorn,

485 F.3d at 481)). Additional cases involving analogous uses of force illustrate the

same principle. See LaLonde v. County of Riverside, 204 F.3d 947, 952, 959 (9th

Cir. 2000) (reversing a district court’s decision to grant qualified immunity when a

jury could reasonably find that the officer seriously injured a prone arrestee, whose

resistance had ceased, by applying his knee to the arrestee’s back); Rice v.

Morehouse, 989 F.3d 1112, 1124–26 (9th Cir. 2021) (concluding that forcibly

throwing a passively resisting and non-threatening arrestee to the ground violated

clearly established law).

AFFIRMED.

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FILED

Cluse v. Rowden, et al., No. 24-2045 NOV 29 2024

BUMATAY, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Until Congress or the Supreme Court directs otherwise, we must faithfully

apply the doctrine of qualified immunity. That doctrine prevents courts and litigants

from second-guessing split-second life-and-death decisions made by law

enforcement officers.

Applied here, that doctrine requires reversal of the district court’s denial of

defendant’s motion for summary judgment.

At about 3:30 in the morning, officers responded to a report of a shots-fired

domestic-violence incident at Daniel William Cluse’s Arizona residence. After the

officers arrived on the scene and exited their vehicles, Cluse began shooting at them.

An armed standoff followed, with Cluse shooting at officers from various points on

the property and officers returning fire. An officer reported “hear[ing] a bullet go

whizzing by [him].”

Eventually, the shooting stopped and Cluse emerged onto his front porch,

apparently holding something in his hands. Officers directed him to stay in the light,

put his hands up, and—eventually—walk toward the road. An officer saw that Cluse

had guns in both hands. He was also wearing baggy shorts (which could conceal

other weapons). Following officers’ commands, Cluse dropped the guns. After

many repeated commands, he made it to a point in the road where officers could

arrest him.

1

Cluse walked backward until the deputies told him to stop, get on his knees,

and then lie face down with his arms outstretched. The deputies repeatedly informed

Cluse not to move or else he would be shot. Once Cluse was on the ground, Deputy

Travis Rowden approached him and put his knee on his lower back to pin him to the

ground. After Deputy Rowden knelt, bodycam footage shows that Cluse moved his

arms and hands beneath his body, toward his chest. This action prevented Deputy

Rowden from securing his hands or handcuffing him. Officers again told him not to

move. But Cluse rolled his head and upper body side-to-side. At this point, Deputy

Rowden administered short blows to his head.

First, these facts, even in the light most favorable to Cluse, preclude a claim

for excessive force. See Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1096–

97 (9th Cir. 2006) (no excessive force where suspect was resisting arrest by trying

to spin out of officer’s grasp). Video evidence confirms that Cluse moved his hands

beneath his body in a way that made securing his hands difficult. It was only after

Cluse’s hands were underneath him that Deputy Rowden started punching. Indeed,

Cluse admitted several times that he moved his hands underneath his body before

any blows were struck. For example, Cluse testified that, after Deputy Rowden

placed his knee and hand on him, his “hands c[a]me underneath [him].”

Cluse doesn’t dispute that his hands were underneath him before Deputy

Rowden’s blows, but instead contends that his hand movements were involuntary.

2

Even if that’s true, it doesn’t matter for our inquiry. That’s because our task is to ask

whether the amount of force employed by an officer was reasonable from a

“reasonable officer[’s]” perspective. Graham v. Connor, 490 U.S. 386, 396 (1989)

(“The ‘reasonableness’ of a particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.”). Cluse fired multiple weapons at officers in the dead of night, officers

believed other armed suspects may be targeting them as well, Cluse was wearing

baggy shorts (which could conceal weapons), and then Cluse put his hands beneath

his body, which prevented officers from seeing if he was reaching for a weapon or

from securing them. Even if Cluse’s hand movements were an involuntary reaction,

it was reasonable for officers to believe he was resisting arrest or that he posed a risk

to their safety. See Saucier v. Katz, 533 U.S. 194, 205 (2001) (“If an officer

reasonably, but mistakenly, believed that a suspect was likely to fight back, for

instance, the officer would be justified in using more force than in fact was

needed.”).

Second, there’s no clearly established law in this case. Neither Davis v. City

of Las Vegas, 478 F.3d 1048, 1055–56 (9th Cir. 2007), nor Blankenhorn v. City of

Orange, 485 F.3d 463, 480 (9th Cir. 2007), govern here. In Davis, the suspect was

already handcuffed before officers slammed his head into a wall several times,

pinned him against the floor, and punched him in the face, fracturing his neck. 478

3

F.3d at 1051–52. There, the officers knew the suspect was unarmed. Id. at 1054.

Here, by contrast, Cluse was not yet handcuffed and his hands were not even secured

while officers didn’t know if he was armed.

The Blankenhorn case involved a “gang tackle,” punches, and hobble

restraints even though “Blankenhorn did not attempt to prevent the officers from

handcuffing him.” 485 F.3d at 478. That makes all the difference. Here, a

reasonable officer could think that Cluse was resisting handcuffing by placing his

hands beneath his body. Not to mention that Blankenhorn’s alleged crime was

misdemeanor trespass at a mall. Id. The “facts and circumstances confronting” the

arresting officers, Graham, 490 U.S. at 397, in a mall trespass case are far different

from the facts and circumstances here, where the suspect shot at deputies with

multiple firearms over a half-hour period in a wooded area and then disregarded

police commands and approached police with guns in both hands and then moved

his hands away from an officer trying to handcuff him. No case establishes that an

officer acts unreasonably by applying force when a suspect moves his hands away

in a manner that makes handcuffing more difficult. And nothing in Davis or

Blankenhorn or any other case informed—let alone clearly informed—Rowden that

his actions here constituted excessive force.

4

Nor do the other cases cited by the majority support the denial of qualified

immunity. Both cases involved much tamer offenses than the one police were

responding to here and far more severe force.

In one case, police officers responded to an excessive-noise complaint and

used pepper spray on the resisting plaintiff. LaLonde v. County of Riverside, 204

F.3d 947, 952–53 (9th Cir. 2000). Although the pepper stray stopped the plaintiff’s

resistance, an officer still forcefully put his knee on the plaintiff’s back. The action

caused severe injury requiring immediate medical attention and caused the plaintiff

pain for months after the incident. Id. This is nothing like the few punches thrown

at Cluse so that officers could handcuff him.

In the other case, police officers threw the plaintiff onto the ground after he

declined to produce his driver’s license after being stopped for failing to signal

before a lane change. Rice v. Morehouse, 989 F.3d 1112, 1116 (9th Cir. 2021). Even

though the plaintiff was not resisting arrest and the offense was minor, officers

tripped him and forcibly threw him to the ground. Id. at 1117. The plaintiff landed

face-first on the pavement and suffered extreme pain. Id. While the plaintiff laid on

the ground, officers repeatedly struck and kneed him, wrenched his arms and

shoulders, and twisted his fingers. Id. Only then did officers handcuff the plaintiff.

Id. Again, here, it is undisputed that Cluse positioned his hands in a way officers

could not handcuff.

5

It takes some imagination to compare Rice and LaLonde to this case. I decline

to indulge that fancy.

I respectfully dissent.

6