Davis v. City of Las Vegas

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANKIE DAVIS, 

Plaintiff-Appellant,

v.

CITY OF LAS VEGAS, a political

subdivision of the State of

Nevada; LAS VEGAS METROPOLITAN

POLICE DEPARTMENT, a political

subdivision of the State of

Nevada; DAVID D. MILLER,

individually and in his official

capacity as a Las Vegas No. 04-17284

Metropolitan Police Officer;

D.C. No.

LEONARD MARSHALL, individually

and in his official capacity as a  CV-02-00007-

Las Vegas Metropolitan Police JCM/PAL

Officer; EXBER, INC., a Nevada OPINION

corporation, dba Las Vegas Club;

ALFRED LIBBY, individually and in

his official capacity as an emplyee

of the Las Vegas Club; PATRICK

LAPERA, individually and in his

capacity as Director of Security

for the Las Vegas Club; JOHN ORR,

individually and in his capacity as

an employee of the Las Vegas

Club; RICHARD MABE, individually

and in his capacity as an employee



2221

2222 DAVIS v. CITY OF LAS VEGAS

of the Las Vegas Club; SHANE 

MUNDELL, individually and in his

capacity as an employee of the 

Las Vegas Club,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted

October 19, 2006—San Francisco, California

Filed February 28, 2007

Before: Stephen Reinhardt, John T. Noonan, and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Reinhardt

DAVIS v. CITY OF LAS VEGAS 2225

COUNSEL

Barry Levinson, Las Vegas, Nevada, for the plaintiff-

appellant.

Lyssa M. Simonelli & Robert McPeak, Las Vegas, Nevada,

for defendant-appellee David Miller.

OPINION

REINHARDT, Circuit Judge:

Once again we confront the question whether a police offi-

cer’s use of force during the arrest of an unarmed citizen was

sufficiently excessive to violate the citizen’s clearly-

established constitutional rights. Officer David Miller of the

Las Vegas Metropolitan Police Department responded to a

call from the Las Vegas Club Hotel & Casino informing him

2226 DAVIS v. CITY OF LAS VEGAS

that security personnel had encountered Frankie Davis read-

ing a magazine in an area of the Casino not open to the public.

After Davis, who had been handcuffed by Casino employees

and remained handcuffed throughout his encounter with Offi-

cer Miller, refused to consent to being searched by the officer,

Miller slammed him head-first into a wall several times,

pinned him against the floor, and punched him in the face. At

some point during this encounter, Miller fractured Davis’s

neck. Davis was unarmed at all times.1

Davis filed suit against Officer Miller and other defendants

under 42 U.S.C. § 1983, alleging that Miller used excessive

force in violation of the Fourth Amendment in effecting his

arrest. He also brought a claim against Miller under Nevada’s

battery statute. The district court granted Miller’s motion for

summary judgment as to both claims on the basis of qualified

immunity and Davis appealed. We reverse the district court’s

grant of summary judgment as to both claims and remand for

a trial on the merits.

I. BACKGROUND

The facts, according to Davis and the independent wit-

nesses who support his version of the events, are as follows:

On November 7, 2001, Security Officer Shane Mundell, a

Casino employee, found Frankie Davis reading a magazine

while sitting atop a stairwell in a non-public area of the estab-

lishment. Mundell radioed for backup and fellow Security

Officer Richard Mabe responded shortly thereafter. Mabe

instructed Davis to descend two flights of stairs and to

approach the security officers. Davis complied.

While Davis was coming down the stairs, Mabe pulled out

1

“Because we review a grant of summary judgment, we view the evi-

dence in the light most favorable to [Davis,] the nonmoving party, and

accept the version of all disputed facts most favorable to him.” Drummond

v. City of Anaheim, 343 F.3d 1052, 1054 n. 1 (9th Cir. 2003).

DAVIS v. CITY OF LAS VEGAS 2227

a set of handcuffs. Davis initially protested that handcuffs

were unnecessary, but after Mabe and Mundell informed him

that the handcuffs were for “everyone’s safety” and that they

intended to merely escort him off the property, Davis volun-

tarily placed his hands behind his back and was handcuffed by

Mundell.

Davis was then escorted to the Casino’s security office and

placed in a holding area. A Casino employee contacted the

Las Vegas Metropolitan Police Department, informed the dis-

patcher that they had someone in custody, and requested that

an officer be sent to the scene. Officer Miller eventually

arrived at the Casino’s security office in response to the call,

walked into the holding area, ordered Davis to stand, and con-

firmed that he was in handcuffs. Miller then patted Davis

down and asked him if he could search his pockets. Davis

declined to consent, but informed Miller that he was unarmed,

a fact that Miller was already aware of as the result of the pat-

down.

Notwithstanding Davis’s refusal to consent to a search,

Miller attempted to reach inside Davis’s left pocket to retrieve

Davis’s wallet. Davis rotated his hips away from Miller in an

attempt to prevent him from grabbing the wallet. Miller then

pushed Davis into a corner, pinning him face-first against the

wall, and again reached for the wallet. Davis pushed off the

wall toward Miller, and the two engaged in a brief pushing

and pulling match. Officer Miller then spun Davis around and

pushed him out of the holding area and into an adjacent hall-

way. He then slammed Davis head-first against the wall oppo-

site the holding area, and then swung him into another wall,

also head-first. One of these head-first impacts left a sizable

dent in the wall’s sheet rock. Miller then threw Davis face-

down onto the floor causing Davis’s teeth to strike the floor.

He landed on top of Davis, and placed his knee on Davis’s

back. Davis began wiggling and attempted to slide out from

underneath Miller because he was in pain. Miller then turned

2228 DAVIS v. CITY OF LAS VEGAS

Davis over and punched him in the face. In the course of Mil-

ler’s actions, he fractured Davis’s neck.

Ultimately, Davis stopped moving. Officer Miller com-

pleted his search, pulled Davis up from the floor, escorted him

off the property, placed him in a patrol car, and transported

him to the Las Vegas City Jail. During the ride to the jail,

Davis told Miller that he was in a great deal of pain. Upon

arrival at the jail, Miller arranged for Davis to be held pending

the filing of charges for obstructing a police officer. Davis

was subsequently transported to University Medical Center by

jail personnel, where he was diagnosed with a neck fracture.

The Police Department’s Internal Affairs Bureau conducted

an investigation of the incident and issued a report in which

it concluded that Officer Miller “did not use the minimal

amount of force necessary and had options other than punch-

ing the suspect in the face who was on the ground in hand-

cuffs.” Accordingly, the Department suspended Officer Miller

for ten hours and ordered him to participate in “Use of Force

Training.”2

In January of 2002, Davis filed suit against Miller and other

defendants, asserting, inter alia, a 42 U.S.C. § 1983 claim for

use of excessive force and a state law battery claim against

Miller. Miller and other defendants filed motions for sum-

mary judgment. The district court granted Miller’s motion for

summary judgment in full. Ruling from the bench, the court

reasoned that summary judgment should be granted as to

Davis’s excessive force claim because “it’s not clearly exces-

sive force,” and thus “it’s not so clear that Officer Miller is

not entitled to qualified immunity. He’s entitled to qualified

immunity, and he’s, therefore, dismissed from the case.” As

to Davis’s state law battery claim, the court ruled as follows:

“let’s see, Officer Miller, the state law claims, they were all

2

Officer Miller had been called before Internal Affairs on at least four

prior occasions, twice for complaints alleging excessive use of force.

DAVIS v. CITY OF LAS VEGAS 2229

discretionary. He’s entitled to immunity on those claims as

well.”

On June 25, 2004 the court entered an order granting sum-

mary judgment to Officer Miller and his supervising officer,

and granting partial summary judgment to the Department.

Davis then requested certification of the order pursuant to

Federal Rule of Civil Procedure 54(b). The court granted the

request, certified the order, and entered judgment in favor of

Officer Miller and his supervising officer. Davis then filed

this timely appeal challenging the grant of summary judgment

to Miller. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we reverse.

II. DISCUSSION

A. Standard of Review

A district court’s grant of summary judgment is reviewed

de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004).

Its decision as to whether an officer is entitled to qualified

immunity is likewise reviewed de novo. Bingham v. City of

Manhattan Beach, 341 F.3d 939, 945 (9th Cir. 2003).

B. The Section 1983 Claim

Davis’s principal argument on appeal is that the district

court erred in concluding that Officer Miller was entitled to

qualified immunity with respect to his excessive force claim.

Specifically, Davis argues that (1) his Fourth Amendment

rights were violated when Officer Miller fractured his neck by

slamming him head-first into a wall several times and punch-

ing him in the face while he was pinned to the floor, and (2)

that a reasonable officer in Miller’s position would have

known that his conduct was unlawful.

In Saucier v. Katz, the Supreme Court held that a court

should determine whether an officer is entitled to qualified

2230 DAVIS v. CITY OF LAS VEGAS

immunity by first deciding whether, “[t]aken in the light most

favorable to the party asserting the injury, [ ] the facts alleged

show the officer’s conduct violated a constitutional right.”

533 U.S. 194, 201 (2001) (citing Siegert v. Gilley, 500 U.S.

226, 232 (1991)). If so, the court must determine whether the

right violated was clearly established such that “it would be

clear to a reasonable officer that his conduct was unlawful in

the situation he confronted.” Id. at 202 (citing Wilson v.

Layne, 526 U.S. 603, 615 (1999)). If we conclude that both

of these inquiries are answered in the affirmative, the officer

is not entitled to qualified immunity. Id. at 201.

1

[1] In assessing an excessive force claim, we must first

“identify[ ] the specific constitutional right allegedly infringed

by the challenged application of force. . . . The validity of the

claim must then be judged by reference to the specific consti-

tutional standard which governs that right.” Graham v. Con-

nor, 490 U.S. 386, 394 (1989). Here, Davis claims that Offi-

cer Miller violated his rights under the Fourth Amendment.3

“A Fourth Amendment claim of excessive force is analyzed

under the framework outlined by the Supreme Court in Gra-

ham v. Connor.” Smith v. City of Hemet, 394 F.3d 689, 700

(9th Cir. 2005) (en banc). Under Graham, “all claims that law

enforcement officers have used excessive force—deadly or

not—in the course of an arrest, investigatory stop, or other

‘seizure’ . . . should be analyzed under the Fourth Amend-

ment and its ‘reasonableness’ standard.” 490 U.S. at 395. This

analysis “requires balancing the ‘nature and quality of the

intrusion’ on a person’s liberty with the ‘countervailing gov-

3

Specifically, Davis alleges that Officer Miller violated this right both

by using “deadly force” in a circumstance where he could not lawfully do

so, and that the force used was “unreasonable and excessive.” Because we

conclude that the district court’s decision to grant summary judgment was

erroneous with respect to Davis’s claim that the force used was “unreason-

able and excessive,” we do not analyze whether reversal is also warranted

because Officer Miller unlawfully used “deadly force.”

DAVIS v. CITY OF LAS VEGAS 2231

ernmental interests at stake’ to determine whether the force

used was objectively reasonable under the circumstances.”

Smith, 394 F.3d at 701. Thus, “[w]e first assess the quantum

of force used to arrest [the plaintiff]” and then “measure the

governmental interests at stake by evaluating a range of fac-

tors.” Deorle v. Rutherford, 272 F.3d 1272, 1279-80 (9th Cir.

2001). Factors we consider in assessing the government inter-

ests at stake include “[1] the severity of the crime at issue, [2]

whether the suspect poses an immediate threat to the safety of

the officers or others, and [3] whether he is actively resisting

arrest or attempting to evade arrest by flight.” Graham, 490

U.S. at 396. Courts may also consider “the availability of

alternative methods of capturing or subduing a suspect.”

Smith, 394 F.3d at 701.

Davis contends that an analysis of Officer Miller’s conduct

under the Graham factors demonstrates that Miller’s decision

to slam the handcuffed Davis head-first into a wall several

times and to punch him in the face while he was immobilized

on the ground was unreasonable. Specifically, he argues that

(1) trespassing on the Casino’s premises and obstructing a

police officer are relatively minor offenses; (2) he did not

pose an immediate threat to Officer Miller or anyone else

because he was handcuffed, surrounded by several security

guards, and was not carrying any weapons; (3) he was not

actively resisting arrest or attempting to flee but was instead

resisting Miller’s unlawful attempts to seize his wallet; and

(4) Miller punched him in the face when he was already

sprawled flat on the floor with his hands cuffed behind him.

This is hardly the first case in which we have analyzed sim-

ilar claims of excessive force by police officers. In Smith v.

City of Hemet, for example, a resident of that city alleged that

police officers used excessive force when they responded to

a 911 call from his wife, who claimed that he was physically

abusing her. 394 F.3d at 693. The responding officers were

aware that Smith was unarmed and that he was in his pajamas,

but they nonetheless “slammed Smith against the wall, threw

2232 DAVIS v. CITY OF LAS VEGAS

him to the ground, slid him off the porch while face down,

pepper-sprayed him repeatedly, and either permitted or

instructed [a police dog] to attack him on three occasions, at

least one such attack occurring while the officers had him

pinned to the ground.” Id. at 702 (internal citation omitted).

Smith filed an action against the officers claiming that they

had used excessive force in subduing and arresting him. Id. at

694. The district court granted the officers’ motion for sum-

mary judgment. Id. at 695. On appeal, we reversed, explaining

that

[b]ecause [the excessive force inquiry] nearly always

requires a jury to sift through disputed factual con-

tentions, and to draw inferences therefrom, we have

held on many occasions that summary judgment or

judgment as a matter of law in excessive force cases

should be granted sparingly. . . . This is because such

cases almost always turn on a jury’s credibility

determinations.

Id. at 701 (internal quotations omitted)(second alteration in

original). Analyzing the officer’s conduct in light of the Gra-

ham factors (and accepting Smith’s version of the facts as cor-

rect), we determined that Smith did not pose an immediate

threat because he was unarmed and in his pajamas, notwith-

standing the fact that, prior to being handcuffed, he disre-

garded the officers’ orders, refused to put up his hands, and

was shouting expletives. Id. at 702. Second, we stated that an

allegation of domestic violence did not “warrant the conclu-

sion that Smith was a particularly dangerous criminal or that

his offense was especially egregious.” Id. at 702-03. Third,

we noted that although Smith continued to ignore the officers’

orders and physically resisted arrest, he did not attack the offi-

cers or “show[ ] any signs of fleeing the area.” Id. at 703.

Finally, we considered the “availability of alternative methods

of capturing or subduing a suspect,” concluding that “the offi-

cers could and should have used control holds to complete the

DAVIS v. CITY OF LAS VEGAS 2233

arrest rather than . . . sic[cing the canine] on him once they

had him restrained on the ground.” Id.

[2] Here, as in Smith, an assessment of the facts in the light

most favorable to Davis shows that his Fourth Amendment

rights were violated. We start our analysis by assessing the

quantum of force used against Davis. We do so because the

“factors articulated in Graham, and other factors bearing on

the reasonableness of a particular application of force are not

to be considered in a vacuum but only in relation to the

amount of force used to effect a particular seizure.” Id. at 701

(quoting Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994).

Looking at the facts in the light we must for purposes of this

appeal, Officer Miller’s use of force was extremely severe.

After Davis refused to consent to being searched, Miller

forcefully slammed him head-first against a wall, and then

swung him into another wall, also head-first, thereby breaking

his neck. Officer Miller then threw Davis face-down onto the

floor, placed his knee on his back, and then turned him over

and punched him in the face.

[3] Next, we must assess the governmental interest that

might justify the use of such force under the Graham factors,

starting with an assessment of “the severity of the crime at

issue.” Graham, 490 U.S. at 396. Trespassing and obstructing

a police officer, as those offenses were committed by Davis,

are by no means such serious offenses as to provide an officer

with a reasonable basis for subduing a person by the means

employed by Officer Miller. Indeed, these offenses are much

less serious than the domestic violence offense at issue in

Smith, which we held did not “warrant the conclusion that

[the plaintiff] was a particularly dangerous criminal or that his

offense was especially egregious.” Id. at 702-03. Here, too,

“the nature of the crime[s] at issue provide[ ] little, if any,

basis for the officer[’]s[ ] use of physical force.” Id. at 703.

[4] Second, we assess “whether the suspect pose[d] an

immediate threat to the safety of the officer[ ] or others.” Gra-

2234 DAVIS v. CITY OF LAS VEGAS

ham, 490 U.S. at 396. Here, Davis posed no immediate threat

to Officer Miller or to anyone else. Davis was unarmed, in

handcuffs, and never attempted to harm Miller or anyone else

in any way. Indeed, even if Davis had wanted to harm Miller,

it would have been difficult for him to do so given that he was

in handcuffs, was confined within a small area, and was sur-

rounded by security guards. Thus, nothing in the record sug-

gests that Davis posed an immediate threat to Miller’s safety

or to that of anyone else.

[5] Next we consider whether Davis was “actively resisting

arrest or attempting to evade arrest by flight.” Graham, 490

U.S. at 396. Although Davis was somewhat uncooperative

and resisted Officer Miller’s attempts to search his pockets, at

no point during the encounter did he attempt to flee, nor could

he have done so in light of the fact that he was in handcuffs,

surrounded by security guards, and confined in a small hold-

ing area. Thus, Davis was neither actively resisting arrest nor

attempting to flee.

[6] Finally, we consider whether Miller could have used

other methods to accomplish the search of Davis’s pocket,

Smith, 394 F.3d at 703; Chew, 27 F.3d at 1441 n. 5, assuming

that he had lawful cause to do so. Viewing the facts in the

light most favorable to Davis, it is clear that other, less abu-

sive methods of conducting the search were available. Miller

could have attempted to persuade Davis to submit to the

search, could have obtained the assistance of the security

guards who were present, could have used less force than he

did in seeking to attain his objective, or, having already con-

ducted a pat-down, could have simply waited to conduct the

search until he had delivered Davis to the jail. Indeed, Miller

was reprimanded by the Police Department because he “did

not use the minimal amount of force necessary and had

options other than punching the suspect in the face who was

on the ground in handcuffs to gain compliance.”

[7] In sum, the force used by Officer Miller was severe, the

crime Davis had committed was minor, the danger to Officer

DAVIS v. CITY OF LAS VEGAS 2235

Miller was minimal as was any risk of flight, and there were

many less abusive means through which Miller could have

accomplished his objective. Thus, weighing the severity of the

force used against the governmental interests at stake, we

have no difficulty in concluding that the facts here at issue,

viewed in the light most favorable to Davis, demonstrate that

Officer Miller’s actions were unreasonable and that Davis’s

Fourth Amendment rights were violated.

2

[8] Even if Officer Miller’s conduct violated Davis’s

Fourth Amendment rights, Miller is entitled to qualified

immunity if the right violated was not “clearly established.”

Saucier, 533 U.S. at 201-02. The “dispositive inquiry in deter-

mining whether a right is clearly established is whether it

would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Id. at 202. Even

where there is no federal case analyzing a similar set of facts,

a plaintiff may nonetheless demonstrate that a reasonable offi-

cer would have known that the force he used was excessive.

Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001).

“Otherwise, officers would escape responsibility for the most

egregious forms of conduct simply because there was no case

on all fours prohibiting that particular manifestation of uncon-

stitutional conduct.” Id. at 1286. In assessing the reasonable-

ness of an officer’s conduct where there is no case law

directly on point, “the salient question that the Court of

Appeals ought to . . . ask[ ] is whether the state of the law [at

the time of the alleged wrong] gave [the defendants] fair

warning that their alleged treatment of [the plaintiff] was

unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).

Here, we have no question that any reasonable officer

would have known that the force used was excessive, from an

elementary understanding of the obligations of law enforce-

ment officers toward all individuals in the community they

serve as well as from a review of the well-established law. As

2236 DAVIS v. CITY OF LAS VEGAS

noted earlier, Smith is only one of a number of our cases that

inform law enforcement officers of their obligation under the

Constitution to refrain from the use of excessive force. In

Drummond v. City of Anaheim, for example, we held that “no

federal case directly on point [was needed] to establish” that

the conduct at issue violated clearly established law. 343 F.3d

1052, 1062 (9th Cir. 2003). Drummond suffered from a

severe mental illness and, when he ran out of medication,

started hallucinating and became paranoid. Id. at 1054. His

neighbor called to request police assistance because he was

afraid that Drummond would hurt himself. Id. When police

officers responded, they decided to take him into custody for

his own safety. Id. The officers “knock[ed] Drummond to the

ground, where the officers cuffed his arms behind his back as

Mr. Drummond lay on his stomach.” Id. Two officers then

placed their knees on Drummond’s back and neck and

remained there, even after it became obvious that he was hav-

ing difficulty breathing under their weight. Id. at 1054-55.

Drummond eventually lost consciousness and suffered perma-

nent brain damage due to lack of oxygen. Id. at 1055. This

court held that “[v]iewing the evidence in the light most

favorable to [the plaintiff] . . . the officers had ‘fair warning’

that the force they used was constitutionally excessive even

absent a Ninth Circuit case presenting the same set of facts.

. . . Any reasonable officer should have known that such con-

duct constituted the use of excessive force.” Id. at 1061.

[9] Examining the facts here at issue in the light most

favorable to Davis, we readily reach the same conclusion.

Any reasonable officer in Officer Miller’s position would

have known, in light of the Graham factors discussed supra

and our case law interpreting them, that swinging a hand-

cuffed man into a wall head-first multiple times and then

punching him in the face while he lay face-down on the

ground, and breaking his neck as a result, was unnecessary

and excessive. See e.g., Chew, 27 F.3d at 1436, 1443 (holding

that, under Graham, the fact that the defendant officer used

“severe force” to arrest a suspect who did not pose an imme-

DAVIS v. CITY OF LAS VEGAS 2237

diate threat to the safety of police officers was sufficient to

preclude summary judgment for the officer, notwithstanding

the fact that the suspect had attempted to flee and was the sub-

ject of three outstanding felony warrants); Palmer v. Sander-

son, 9 F.3d 1433, 1434-36 (9th Cir. 1993) (holding that an

officer who, during a traffic stop, jerked the plaintiff out of

his car, handcuffed him extremely tightly, forcefully shoved

him into the back of a patrol car, and refused to loosen his

handcuffs was not entitled to qualified immunity because no

reasonable officer would have thought this conduct was con-

stitutional); Hansen v. Black, 885 F.2d 642, 645 (9th Cir.

1989) (holding that police officers used excessive force when

they roughly handcuffed plaintiff Hansen thereby injuring her

wrist and arm after she tried to prevent them from collecting

evidence and called one of the officers a “son of a bitch”).

Indeed, the Department’s own Internal Investigations Bureau

found Officer Miller’s actions unreasonable and disciplined

him for “not [using] the minimal amount of force necessary”

in a situation in which he had multiple, less forceful means

available through which to accomplish his objective. Cf.

Deorle, 272 F.3d at 1283. Thus, viewing the facts in the light

most favorable to Davis, it is clear that a reasonable officer in

Miller’s position would have known that the conduct in which

he engaged constituted excessive force.

Officer Miller’s arguments to the contrary are far from per-

suasive. In support of his argument that a reasonable officer

would not have known that he acted unlawfully, he cites not

a single Ninth Circuit case. His reliance on out-of-circuit

authority, namely Hinton v. City of Elwood, 997 F.2d 774

(10th Cir. 1993) and Melton v. Shivers, 496 F. Supp. 781

(M.D. Ala. 1980), is misplaced. In Hinton, the plaintiff

shoved a police officer and then walked away when he was

told that he was under arrest. 997 F.2d at 776. Two officers

then wrestled him to the ground and attempted to handcuff

him. Id. at 777. The plaintiff forcefully resisted being hand-

cuffed by kicking, flailing his arms, and attempting to bite the

officers. Id. The officers used only as much force as was nec-

2238 DAVIS v. CITY OF LAS VEGAS

essary to subdue him, eventually using a stun gun for that pur-

pose. Id. Unlike the plaintiff in Hinton, Davis was handcuffed

for the duration of his encounter with Officer Miller, did not

attempt to bite or attack him and did not attempt to flee. Hin-

ton is quite obviously inapposite.

Melton is similarly unhelpful to Officer Miller. There Mel-

ton unlawfully entered one apartment and attempted to break

into another. 496 F. Supp. at 783. When police pulled him

over to question him, he drove away as they approached his

vehicle. Id. A chase ensued during which Melton attempted to

run a police car off the road. Id. The officers caught up to

Melton four times, but each time he sped away just before

they were able to apprehend him. Id. Finally, they rammed

Melton’s car and were able to stop it. Id. at 784. Although

three officers surrounded him, Melton attempted to flee and

a struggle ensued during which Melton kicked one of the offi-

cers down a hill. Id. After a fourth officer arrived, the officers

were finally able to subdue and handcuff him. Id. Here, unlike

in Melton, Davis was handcuffed when his encounter with

Officer Miller commenced, and Miller had already subdued

Davis when he administered the final blow. Furthermore,

Davis never attempted to flee nor did he injure or attempt to

injure anyone. Thus, neither of the cases cited by Officer Mil-

ler supports his argument that a reasonable officer in his posi-

tion would not have known that his conduct was unlawful.

[10] Because we conclude that a reasonable officer in Mil-

ler’s position would have known that the conduct complained

of by Davis constituted excessive force, we hold that Officer

Miller is not entitled to qualified immunity and that the dis-

trict court erred in granting summary judgment on that basis.

C. The State-Law Battery Claim

Davis argues that the district court erred in granting Officer

Miller’s motion for summary judgment as to his state law bat-

tery claim. Miller asserts that Davis waived his right to appeal

DAVIS v. CITY OF LAS VEGAS 2239

this issue by failing to oppose Miller’s motion for summary

judgment with respect to that claim. Davis appears to concede

that he did not oppose summary judgment as to the battery

claim in his written opposition to Miller’s motion for sum-

mary judgment, but contends that he preserved the right to

appeal this issue by filing his own motion for partial summary

judgment in which he sought summary judgment as to the bat-

tery claim.

[11] “[I]t is a general rule that a party cannot revisit theo-

ries that it raises but abandons at summary judgment.”

Bankamerica Pension Plan v. McMath, 206 F.3d 821, 826

(9th Cir. 2000) (citing USA Petroleum Co. v. Atlantic Rich-

field Co., 13 F.3d 1276, 1284 (9th Cir. 1994)). “A party aban-

dons an issue when it has a full and fair opportunity to

ventilate its views with respect to an issue and instead chooses

a position that removes the issue from the case.” Id. However,

where, as here, a plaintiff seeks summary judgment as to a

particular claim, it cannot be said that he has “taken a position

that removes the issue from the case” by conceding that the

defendant is entitled to summary judgment. To the contrary,

in seeking summary judgment on his own behalf, a plaintiff

expressly rejects the view that the defendant is entitled to

summary judgment with respect to the claims on which the

plaintiff seeks that relief. Accordingly, because Davis sought

summary judgment with respect to the battery claim, he has

not waived his right to challenge the district court’s grant of

summary judgment to Officer Miller with respect to that

claim.

Davis contends that the district court erred in concluding

that Officer Miller was immune from suit under state law and

therefore entitled to summary judgment with respect to the

battery claim. In support of this argument, he relies on Yada

v. Simpson for the proposition that “a police officer who uses

more force than is reasonably necessary to effect a lawful

arrest commits a battery upon the person arrested.” 112 Nev.

254, 256 (Nev. 1996). This quotation does not constitute a

2240 DAVIS v. CITY OF LAS VEGAS

holding; rather, it is the court’s iteration of a jury instruction

given in that case. In Yada, the Nevada Supreme Court upheld

a jury verdict awarding damages on the theory that a police

officer committed battery when he used excessive force in

arresting the plaintiff. In upholding the verdict, the court

noted that the jury had been instructed that “a police officer

who uses more force than is reasonably necessary to effect a

lawful arrest commits a battery upon the person arrested.” Id.

However, the court did not rule directly on the question

whether the jury instruction was an accurate statement of

Nevada law. Instead, the court upheld the verdict because it

was “supported by substantial evidence” and was not “clearly

erroneous in light of all the evidence presented,” without

addressing whether the claim was permissible under Nevada

law. Id. at 256-57.

[12] As a general matter, under Nevada Revised Statute

(NRS) 41.032 “ ‘no action may be brought’ against any public

officer based upon ‘the failure to exercise or perform a discre-

tionary function . . . whether or not the discretion involved is

abused.’ ” Maturi v. Las Vegas Metro. Police Dept., 110 Nev.

307, 309 (Nev. 1994); see also Ortega v. Reyna, 114 Nev. 55,

62 (Nev. 1998). A police officer exercises discretion and is

thus generally immune from suit where the act at issue

required “personal deliberation, decision, and judgment,”

rather than “obedience to orders, or the performance of a duty

in which the officer is left no choice of his own.” Maturi, 110

Nev. at 309. An officer’s decision as to how to accomplish a

particular seizure or search is generally considered a discre-

tionary determination under Nevada law, and officers are

therefore immune from suit as to state law claims arising

therefrom in most cases. See Ortega, 114 Nev. at 62 (police

officer entitled to immunity where he used his judgment in

stopping the plaintiff, arresting her, and taking her to jail);

Maturi, 110 Nev. at 309 (arresting officers’ decision to hand-

cuff plaintiff behind his back rather than in front was discre-

tionary and the officers are therefore entitled to immunity);

DAVIS v. CITY OF LAS VEGAS 2241

see also Carey v. Nevada Gaming Control Bd., 279 F.3d 873,

878 (9th Cir. 2002).

[13] However, where an officer’s actions are “attributable

to bad faith, immunity does not apply whether an act is discre-

tionary or not.” Falline v. GNLV Corp., 107 Nev. 1004, 1009

(Nev. 1991); see also Jordan v. State Dep’t of Motor Vehi-

cles, 121 Nev. 44, 49 n.66 (Nev. 2005). As the Nevada

Supreme Court explained,

NRS 41.032(2) provides immunity to contractors,

officers, employees, agents and political subdivi-

sions of the State for the performance or non-

performance of discretionary acts “whether or not

the discretion involved is abused.” . . . However, an

abuse of discretion necessarily involves at least two

factors: (1) the authority to exercise judgment or dis-

cretion in acting or refusing to act on a given matter;

and (2) a lack of justification for the act or inaction

decided upon. Bad faith, on the other hand, involves

an implemented attitude that completely transcends

the circumference of authority granted the individual

or entity. In other words, an abuse of discretion

occurs within the circumference of authority, and an

act or omission of bad faith occurs outside the cir-

cumference of authority. Stated otherwise, an abuse

of discretion is characterized by an application of

unreasonable judgment to a decision that is within

the actor’s rightful prerogatives, whereas an act of

bad faith has no relationship to a rightful prerogative

even if the result is ostensibly within the actor’s

ambit of authority.

Falline, 107 Nev. at 1009 n.3 (emphasis in original). Thus,

where an officer arrests a citizen in an abusive manner not as

the result of the exercise of poor judgment as to the force

required to make an arrest, but instead because of hostility

toward a suspect or a particular class of suspects (such as

2242 DAVIS v. CITY OF LAS VEGAS

members of racial minority groups) or because of a willful or

deliberate disregard for the rights of a particular citizen or cit-

izens, the officer’s actions are the result of bad faith and he

is not immune from suit. See id. No officer has the “rightful

prerogative” to engage in a malicious battery of a handcuffed

citizen who is neither actively resisting arrest nor seeking to

flee. Such an action, motivated by hostility or willful disre-

gard for the law, is without the officer’s “circumference of

authority,” even if “ostensibly within [his] ambit of authori-

ty.” Id.

[14] Assessing the facts here at issue in the light most

favorable to Davis, a reasonable juror could find that Officer

Miller’s decision to slam Davis head-first into a wall multiple

times and to punch him in the face while he lay prone on the

ground was not merely an exercise or abuse of discretion but

instead constituted a deliberate and willful disregard for the

law, or malicious conduct motivated by Officer Miller’s ani-

mosity toward Davis on account of his refusal to consent to

being searched or for some other reason. Whether Officer

Miller’s actions were in bad faith is a determination that may

not be made at summary judgment, at least not where, as here,

there are contested issues of material fact with respect to Offi-

cer Miller’s conduct and his motivation. Accordingly, the dis-

trict court erred in granting summary judgment to Officer

Miller on the basis of statutory immunity.

III. CONCLUSION

For the forgoing reasons, we reverse the district court’s

grant of summary judgment to Officer Miller with respect to

Davis’s § 1983 excessive force claim and his state law battery

claim and remand for trial.

REVERSED and REMANDED.