Jones v. Las Vegas Metropolitan Police Department

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHNATHAN JONES, also known as No. 14-17388

John Leroy Jones; ROSIE LEE

MATHEWS; ESTATE OF ANTHONY D.C. No.

JONES, 2:12-cv-01636-

Plaintiffs-Appellants, APG-CWH

v.

OPINION

LAS VEGAS METROPOLITAN POLICE

DEPARTMENT; MARK HATTEN;

TIMOTHY ENGLISH; RICHARD

FONBUENA; STEVEN SKENANDORE,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Nevada

Andrew P. Gordon, District Judge, Presiding

Argued and Submitted December 15, 2016

San Francisco, California

Filed October 20, 2017

Before: Alex Kozinski, Jay S. Bybee

and N. Randy Smith, Circuit Judges.

Opinion by Judge Kozinski;

Partial Concurrence and Partial Dissent by

Judge N.R. Smith

2 JONES V. LVMPD

SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the district

court’s summary judgment in favor of Las Vegas police

officers, and remanded in an action brought pursuant to

42 U.S.C. § 1983 and state law by the parents and estate of

Johnathan Jones, who died after being restrained and tased

repeatedly and simultaneously for an extended period.

The district court determined that plaintiffs failed to assert

their Fourth Amendment claims as executor or administrator

of Jones’s estate, as required by the Nevada survival statute,

and thus plaintiffs lacked standing to bring these claims. The

panel held that consistent with the text of Fed. R. Civ. P. 17

and this Circuit’s case law interpreting the rule, the district

court abused its discretion by failing to give plaintiffs a

reasonable opportunity to substitute the proper party and thus

cure the defective complaint.

The panel held there was a triable issue of fact as to

whether the officers were reasonable in the degree of force

they deployed. The panel held that evidence presented at

summary judgment would support a jury finding that the

officers’ repeated and simultaneous use of tasers for over

ninety seconds was unreasonable and that a jury could

reasonably conclude that the officers knew or should have

known that these actions created a substantial risk of serious

injury or death.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

JONES V. LVMPD 3

The panel held that any reasonable officer would have

known that continuous, repeated, and simultaneous tasings

could only be justified by an immediate or significant risk of

serious injury or death to officers or the public. The panel

held that such force generally cannot be used on a prone

suspect who exhibits no resistance, carries no weapon, is

surrounded by sufficient officers to restrain him and is not

suspected of a violent crime. The panel concluded that given

that there was clearly established Fourth Amendment law

and a jury could reasonably conclude that the officers used

excessive force, the question of qualified immunity must

proceed to trial.

The panel affirmed the district court’s dismissal of the

Fourteenth Amendment claim. The panel held that even

assuming all the facts plaintiffs alleged, there was no

evidence that the officers acted with a purpose of harming

Jones that was unconnected to a legitimate law enforcement

objective.

The panel held there was a triable issue of fact as to the

state law battery and negligence claims. The panel held that

while there was no evidence that any of the officers acted out

of hostility or improper motive, there was a factual dispute as

to whether the repeated and simultaneous tasings were so

excessive under the circumstances that they amounted to

willful or deliberate disregard of Jones’s rights. The panel

therefore remanded plaintiffs’ battery and negligence claims.

The panel held that the false arrest/imprisonment claim

failed because there was no evidence that the decision to

arrest Jones lacked justification, let alone that it was made in

bad faith. The panel therefore affirmed the dismissal of that

claim.

4 JONES V. LVMPD

Concurring in part and dissenting in part, Judge N.R.

Smith would affirm the district court’s decision to dismiss

the Fourth Amendment claims pursuant to Rule 17. Judge

N.R. Smith could not conclude that the district court abused

its discretion in dismissing plaintiffs’ Fourth Amendment

claims because the plaintiffs failed to name the proper party

in interest. He agreed that absent this unreasonable mistake

in failing to name the proper party, this case should proceed

to trial.

COUNSEL

Dale K. Galipo (argued) and Eric Valenzuela, Law Offices of

Dale K. Galipo, Woodland Hills, California, for Plaintiffs-

Appellants.

Craig R. Anderson (argued) and Micah S. Echols, Marquis

Aurbach Coffing, Las Vegas, Nevada, for Defendants-

Appellees.

JONES V. LVMPD 5

OPINION

KOZINSKI, Circuit Judge:

We consider whether police officers are entitled to

qualified immunity when they’re alleged to have caused the

death of a suspect by using tasers repeatedly and

simultaneously for an extended period.

BACKGROUND1

In the early morning of December 11, 2010, Officer Mark

Hatten of the Las Vegas Metropolitan Police Department

pulled over Anthony Jones for a routine traffic stop. Hatten

ordered Jones out of the car so he could pat him down for

weapons. Jones obeyed at first but then started to turn toward

Hatten. Scared of the much larger Jones, Hatten drew his

firearm, pointed it at Jones and ordered him to turn back

around. Instead, Jones sprinted away.

Hatten called for backup and pursued Jones. Hatten

didn’t believe deadly force was necessary because Jones

hadn’t threatened him and didn’t appear to have a weapon.

1

At summary judgment, we “view the evidence in the light most

favorable” to the nonmoving party and draw all reasonable inferences in

that party’s favor. Newmaker v. City of Fortuna, 842 F.3d 1108, 1111

(9th Cir. 2016). “[Excessive] force cases pose a particularly difficult

problem” under this standard when the defendant officers are the only

surviving witnesses. Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994).

To ensure that the officers don’t “tak[e] advantage of the fact that the

witness most likely to contradict [their] story . . . is unable to testify,” we

“may not simply accept what may be a self-serving account by the police

officer;” we must verify that account with circumstantial and objective

evidence in the record. Id.

6 JONES V. LVMPD

As he waited for other officers to arrive, Hatten used his taser

to subdue Jones. Hatten fired his taser twice, causing Jones’s

body to “lock up” and fall to the ground face down with his

hands underneath him. Hatten proceeded to kneel on Jones’s

back in an attempt to handcuff Jones, keeping his taser

pressed to Jones’s thigh and repeatedly pulling the trigger.

Hatten continued to tase Jones even after backup arrived.

Backup consisted of four officers: Richard Fonbuena on

Hatten’s right side, who helped handcuff Jones Steven

Skenandore, who controlled Jones’s legs and feet Timothy

English at Jones’s head, who applied a taser to Jones’s upper

back and Michael Johnson, who arrived last and ordered the

tasing to stop. Johnson wanted his officers to “back off on

the tasers so that [Jones’s] muscles would relax.” According

to Johnson, Jones “didn’t look like he was physically

resisting” and there were “enough officers” to take Jones into

custody. In all, Jones was subjected to taser shocks for over

ninety seconds: Hatten tased Jones essentially nonstop that

whole time—with some applications lasting as long as

nineteen seconds—and, for ten of those seconds, English

simultaneously applied his taser.

Once the officers stopped tasing Jones, his body went

limp. They sat him up but Jones was nonresponsive and

twitching; his eyes were glazed over and rolled back into his

head. The officers tried and failed to resuscitate him. Jones

was pronounced dead shortly thereafter. The coroner’s report

concluded that “police restraining procedures”—including the

tasings—contributed to Jones’s death.

Jones’s parents sued the Las Vegas Metropolitan Police

Department and all of the officers involved in restraining

Jones. They alleged Fourth and Fourteenth Amendment

JONES V. LVMPD 7

violations as well as various state law torts. The district court

granted summary judgment for the defendants on all claims.

Because plaintiffs make no arguments regarding the district

court’s dismissal of the Monell claim against the police

department, we deem that claim waived. See Hayes v. Idaho

Corr. Ctr., 849 F.3d 1204, 1213 (9th Cir. 2017). Plaintiffs

also voluntarily dismissed their claims against Officers

Fonbuena and Skenandore, so we consider only the claims

against Officers Hatten and English.

ANALYSIS

A. Rule 17 Relief

Fourth Amendment claims are “personal” and may not be

“vicariously asserted.” Moreland v. Las Vegas Metro. Police

Dep’t, 159 F.3d 365, 369 (9th Cir. 1998). Section 1983

actions, however, may be brought by “the survivors of an

individual killed as a result of an officer’s excessive use of

force,” provided state law authorizes a survival action. Id.

(citing 42 U.S.C. § 1988(a)). Nevada authorizes survival

actions by the “executor or administrator” of a decedent’s

estate. Nev. Rev. Stat. § 41.100(3) (1997); see also

Moreland, 159 F.3d at 369–70. Plaintiffs didn’t assert their

Fourth Amendment claims as executor or administrator of

Jones’s estate and thus didn’t have standing to bring these

claims. The district court denied relief under Rule 17 by

refusing to provide plaintiffs an opportunity to substitute the

proper party. We review Rule 17 determinations for abuse of

discretion. Esposito v. United States, 368 F.3d 1271, 1273

(10th Cir. 2004).

Courts “may not dismiss an action for failure to prosecute

in the name of the real party in interest until, after an

8 JONES V. LVMPD

objection, a reasonable time has been allowed for the real

party in interest to ratify, join, or be substituted into the

action.” Fed. R. Civ. P. 17(a)(3). The purpose of the rule is

“to prevent forfeiture of a claim when an honest mistake was

made.” Goodman v. United States, 298 F.3d 1048, 1054 (9th

Cir. 2002); see also 6A Charles Alan Wright et al., Federal

Practice and Procedure § 1555 (3d ed. 2017) (noting the

“judicial tendency to be lenient when an honest mistake has

been made in selecting the proper plaintiff”). This is

consistent with our longstanding policy in favor of deciding

cases on the merits. See, e.g., Dahl v. City of Huntington

Beach, 84 F.3d 363, 366 (9th Cir. 1996); Russell v.

Cunningham, 279 F.2d 797, 804 (9th Cir. 1960).

Defendants argued in their summary judgment motion

that neither Jones’s father nor the estate had standing to bring

Fourth Amendment claims. Plaintiffs responded that the

complaint did name parties with standing—the father and the

estate, because the father was the administrator of the estate.

This was wrong under Nevada law, which called for naming

the father as administrator. Plaintiffs thus named the right

person but in the wrong capacity. The district court correctly

determined that no proper plaintiff had been named for the

Fourth Amendment claims.

We have held that Rule 17 relief is available where

counsel makes an “understandable” error in naming the real

party in interest. Goodman, 298 F.3d at 1053–54. Plaintiffs

claim they made an “honest and understandable mistake” by

naming Jones’s estate and father as plaintiffs (rather than

naming the father as administrator of Jones’s estate) because

the district court had approved a stipulation amending their

JONES V. LVMPD 9

complaint to name Jones’s estate as a plaintiff.2 While this is

hardly the best excuse, it was not unreasonable for plaintiffs

to have construed the district court’s approval of the

stipulation as a determination that they had named the proper

party. The district court’s summary judgment ruling

disabused plaintiffs of this notion. Once this occurred, Rule

17 required the district court to give plaintiffs a reasonable

opportunity to cure their error: A court “may not dismiss an

action for failure to prosecute in the name of the real party in

interest until, after an objection, a reasonable time has been

allowed.” Fed. R. Civ. P. 17(a)(3) (emphasis added). Rather

than enter judgment immediately after noting the deficiency,

the district court should have given plaintiffs a reasonable

opportunity to substitute the right party. See, e.g., Esposito,

368 F.3d at 1272 (reversing district court’s dismissal because

plaintiff’s mistake was honest, even if not understandable, so

court was required to give plaintiff an opportunity to

substitute); Jaramillo v. Burkhart, 999 F.2d 1241, 1246 (8th

Cir. 1993) (reversing district court’s dismissal because

plaintiff wasn’t given a reasonable opportunity to substitute);

Kilbourn v. West. Sur. Co., 187 F.2d 567, 571–72 (10th Cir.

1951) (reversing summary judgment so that real party in

interest could be substituted); cf. Kuelbs v. Hill, 615 F.3d

1037, 1042–43 (8th Cir. 2010) (holding that district court

gave plaintiffs reasonable time to substitute party when it

2

Plaintiffs filed an amended complaint representing that Jones’s

father had “filed the necessary documents . . . to be appointed as the

special administrator” of the estate. Although the petition and order

appointing Jones’s father as special administrator appears to have been

signed and dated at that time, the document is stamped with a filing date

a few months later. Nevertheless, Jones’s father was the administrator by

the time the district court entered judgment against plaintiffs. The

problem is that he wasn’t named as such in the complaint.

10 JONES V. LVMPD

ordered them to address the issue and waited six months

before dismissing).3

The district court noted a “disconnect” between the date

plaintiffs claimed their probate order appointing Jones’s

father as administrator was filed and the actual filing date of

that order. See supra note 2. But this “disconnect” had little

to do with plaintiffs’ honest mistake—naming the estate, not

the administrator of the estate, as a plaintiff—for which our

case law requires relief under Rule 17. See, e.g., Goodman,

298 F.3d at 1053–54. Plaintiffs explained that they thought

they had named the proper plaintiffs, and they did have the

probate order signed—though not filed—at the time of the

first amended complaint. They were entitled to a reasonable

amount of time to correct their error.

Within five days of the district court’s ruling, plaintiffs

filed a motion seeking leave to do so. They represented that

they had the proper party ready to substitute in the action

because Jones’s father was the administrator of the estate.

Although they relied on Rule 15, the motion was one they

were permitted to file under Rule 60(b)(1) and sought relief

to which they were entitled under Rule 17. Defendants

haven’t argued that the citation to the wrong rule prejudiced

them in any way. The district court didn’t rule on this motion

3

Defendants argue that plaintiffs received the necessary notice

earlier when defendants pointed out the deficiency in their motion for

summary judgment. But plaintiffs disputed defendants’ interpretation of

the proper party, and plaintiffs’ interpretation, though ultimately wrong,

wasn’t frivolous. Plaintiffs were entitled to await the district court’s ruling

before being deemed to have received notice for purposes of Rule 17.

Holding otherwise would pressure plaintiffs to adopt their opponents’

interpretation even if they’re convinced that they did everything right.

JONES V. LVMPD 11

until months after plaintiffs had filed their timely notice of

appeal, which deprived the district court of jurisdiction.

Consistent with the text of Rule 17 and our case law

interpreting it, we conclude that the district court abused its

discretion by failing to give plaintiffs a reasonable

opportunity to substitute the proper party and thus cure the

defective complaint.

B. Qualified Immunity

Defendants argue that we should nonetheless affirm the

district court’s judgment on qualified immunity grounds.

Although the district court didn’t reach the issue on the

relevant Fourth Amendment claims, both parties briefed it

below, so the issue is ripe for our consideration. Because the

issue will no doubt arise on remand, we exercise our

discretion to review it.

“The doctrine of qualified immunity protects government

officials ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(citation omitted). To overcome a claim of immunity,

plaintiffs must plead “facts showing (1) that the official

violated a statutory or constitutional right, and (2) that the

right was ‘clearly established’ at the time of the challenged

conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). “A

Government official’s conduct violates clearly established

law when, at the time of the challenged conduct, ‘[t]he

contours of [a] right [are] sufficiently clear’ that every

‘reasonable official would have understood that what he is

doing violates that right.’” Id., at 741 (alteration in original)

12 JONES V. LVMPD

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

The Supreme Court doesn’t “require a case directly on point,

but existing precedent must have placed the statutory or

constitutional question beyond debate.” Id.

1. Reasonable Conduct

In evaluating Fourth Amendment claims, we ask whether

the officers’ conduct was reasonable under the circumstances.

See Scott v. Harris, 550 U.S. 372, 383 (2007). Viewing the

facts in the light most favorable to plaintiffs, see Saucier v.

Katz, 533 U.S. 194, 201–02 (2001), we must determine

whether the officers’ conduct was reasonable using the

Supreme Court’s Graham v. Connor factors: “the severity of

the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by

flight.” 490 U.S. 386, 396 (1989). The most important factor

is whether the suspect posed an immediate threat. Mattos v.

Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc)

[hereinafter Mattos II]. In examining the threat, “a simple

statement by an officer that he fears for his safety or the

safety of others is not enough; there must be objective factors

to justify such a concern.” Deorle v. Rutherford, 272 F.3d

1272, 1281 (9th Cir. 2001). “A desire to resolve quickly a

potentially dangerous situation is not the type of

governmental interest that, standing alone, justifies the use of

force that may cause serious injury.” Id.

Here the officers’ use of force began appropriately

enough: Despite Jones’s large size and the fact that he had

run away from a traffic stop, he had neither threatened Hatten

nor committed a serious offense, and he didn’t appear to have

a weapon. Based on these facts, Hatten believed that

JONES V. LVMPD 13

something less than deadly force was justified, so he used his

taser to subdue Jones. This decision was consistent with our

case law, as we’ve held that use of tasers can be intermediate

force. See Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir.

2010). Using a taser to stop Jones and place him under arrest

was reasonable under the circumstances.

As the situation evolved, however, the justification for the

use of force waned. The four other officers at the scene gave

somewhat inconsistent accounts about their continued use of

force. What is clear is that Hatten continued to apply his

taser to Jones and English also applied his taser twice, even

as Jones was being handcuffed. By the time Jones was prone

and surrounded by multiple officers, there would have been

no continuing justification for using intermediate force:

Jones was on the ground after his body “locked up” as a result

of repeated taser shocks; he had no weapon and was making

no threatening sounds or gestures. There is a triable issue of

fact as to whether the officers were reasonable in the degree

of force they deployed at that point.

Evidence presented at summary judgment would support

a jury finding that the officers’ repeated and simultaneous use

of tasers for over ninety seconds was unreasonable. Taser

International provided users with product warnings that the

risk of “serious injury or death” from tasers increases with

multiple and simultaneous applications. Hatten testified that

such use was discouraged, though not forbidden, by the Las

Vegas Metropolitan Police Department. Consistent with

Taser’s product warnings, the officers were instructed that

repeated taser applications could contribute to serious injury

or death, particularly when the target is subject to certain risk

factors, like struggling, being overweight or using drugs or

14 JONES V. LVMPD

alcohol. The officers knew that Jones was subject to two of

these risk factors: He was overweight and struggled.

Plaintiffs also presented a declaration from a police

practices expert who opined that reasonably trained officers

would have known that repeated and simultaneous taser use

poses a risk of serious injury or death. The expert further

explained that “[t]he normal cycle for the X-26 taser is five

(5) seconds” but that the taser will continue to discharge

electricity “as long as the operator holds the trigger down.”

Hatten’s X-26 taser frequently went past the five-second

application cycle—with some shocks lasting eleven seconds,

thirteen seconds (twice) and nineteen seconds. This left burn

marks on Jones’s thigh, forearm and hand.

Based on this evidence, a jury could reasonably conclude

that the officers knew or should have known that their use of

tasers created a substantial risk of serious injury or death.

Thus, there are triable issues of fact as to whether the

officers’ continuous and simultaneous tasing was reasonable

under the circumstances, and whether the officers were on

notice that the force they used could cause serious injury or

death.4

4

We’ve held that a single taser shot can “intrude[] upon the victim’s

physiological functions and physical integrity in a way that other non-

lethal uses of force do not.” Bryan, 630 F.3d at 825–26. In light of this,

“we agree[d] with the Fourth and Eighth Circuit’s characterization of a

taser shot [and] . . . therefore conclude[d] that tasers like the X[-]26

constitute an ‘intermediate . . . quantum of force.’” Id. (citations omitted).

Here, Officers Hatten and English went far beyond a single shot: They

discharged their tasers multiple times and simultaneously. This may raise

the “quantum of force.”

JONES V. LVMPD 15

2. Clearly Established Law

Because defendants may have committed constitutional

violations, we turn to the second element of qualified

immunity: whether there was clearly established law.

Defendants rely on Brooks v. City of Seattle, 599 F.3d 1018

(9th Cir. 2010), vacated on reh’g en banc sub nom., Mattos

II, 661 F.3d 433, as clearly established law on tasers at the

time of Jones’s death. In that case, we held that it wasn’t

excessive to use three five-second shocks on a pregnant

woman who was resisting arrest after a traffic stop. Id. at

1030–31. We explained that taser use in that case was “less

than . . . intermediate” force because it was “more on par with

pain compliance techniques.”5 Id. at 1027–28. But, as we

explain above, continuous, repeated and simultaneous tasings

are different from isolated shocks.6 Any reasonable officer

would have known that such use can only be justified by an

5

Brooks was overturned when it was taken en banc in 2011. We

held that a reasonable fact finder could conclude that the use of force was

excessive. Mattos II, 661 F.3d at 446. We noted the “overwhelmingly

salient factor” was that Brooks was tased three times in less than one

minute. Id. at 445. “Three tasings in such rapid succession provided no

time for Brooks to recover from the extreme pain she experienced, gather

herself, and reconsider her refusal to comply.” Id. Three tasings in less

than one minute allow for over twenty seconds between shocks. That’s

materially different from continuous use for ninety seconds.

6

Defendants also rely on Marquez v. City of Phx., 693 F.3d 1167

(9th Cir. 2012), a post-Mattos II case involving the repeated use of a

single taser. Their reliance is misplaced. There we found that the officers

were justified in tasing the decedent with nine five-second applications

because the decedent was resisting violently and posed a serious threat to

the officers and others. Id. at 1174–76. Jones, by contrast, offered no

resistance and was lying face down on the ground. Marquez also didn’t

involve simultaneous and prolonged taser applications, as occurred here.

16 JONES V. LVMPD

immediate or significant risk of serious injury or death to

officers or the public. See, e.g., Scott, 39 F.3d at 914 (“An

officer’s use of deadly force is reasonable only if the officer

has probable cause to believe that the suspect poses a

significant threat of death or serious physical injury to the

officer or others.”) (internal quotation marks and citation

omitted). Such force generally can’t be used on a prone

suspect who exhibits no resistance, carries no weapon, is

surrounded by sufficient officers to restrain him and is not

suspected of a violent crime.

Given that there was clearly established Fourth

Amendment law and a jury could reasonably conclude that

the officers used excessive force, the question of qualified

immunity must proceed to trial.7

7

Plaintiffs raise a separate Fourth Amendment claim: Hatten lacked

reasonable suspicion to stop Jones’s vehicle in the first place. Officers are

required to have at least reasonable suspicion to stop a vehicle for

investigatory purposes. Delaware v. Prouse, 440 U.S. 648, 663 (1979);

United States v. Lopez-Soto, 205 F.3d 1101, 1104 (9th Cir. 2000). Hatten

claimed that he pulled Jones over for driving without his headlights on and

failing to stop at a red light. But Hatten’s account of the stop changed

between his initial “use of force” interview with the police department and

his deposition. At first, Hatten justified the stop based only on Jones’s

headlights and said that Jones had stopped at the light. Surveillance video

of the traffic stop, however, showed that Jones’s headlights were on when

Hatten stopped him. In his deposition, Hatten then claimed that Jones

turned his lights on once Hatten started following him, and that he pulled

Jones over after he observed Jones perform what he called “a California

rolling stop” at a red light before making a right turn. These changes in

Hatten’s account undermine his credibility and preclude us from accepting

his testimony at face value. See supra note 1. There’s thus a triable issue

of fact as to whether the stop was supported by reasonable suspicion.

Fourth Amendment jurisprudence on traffic stops is well-established, so

JONES V. LVMPD 17

C. Fourteenth Amendment Claim

The district court granted summary judgment on

plaintiffs’ Fourteenth Amendment claim both on the merits

and because it found that parents of an adult child lack a

cognizable constitutional claim as to police mistreatment of

that child. But our case law does recognize such a

constitutional claim. See, e.g., Johnson v. Bay Area Rapid

Transit Dist., 724 F.3d 1159, 1169 (9th Cir. 2013) (“[W]e

have recognized a parent’s right to a child’s companionship

without regard to the child’s age.”) (collecting cases).

Because parents have a constitutionally protected interest

in the companionship of their children, id. at 1168–69,

“[o]fficial conduct that ‘shocks the conscience’ in depriving

parents of that interest is cognizable as a violation of due

process.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir.

2010) (citation omitted). In cases like this, where officers

must react quickly to a rapidly changing situation, the test is

whether the officers acted with a purpose of causing harm

unconnected to any legitimate law enforcement objective.

See Porter v. Osborn, 546 F.3d 1131, 1137, 1140 (9th Cir.

2008).

Even assuming all the facts plaintiffs allege, there’s no

evidence that the officers acted with a purpose of harming

Jones that was unconnected to a legitimate law enforcement

objective. Therefore, we affirm the district court’s dismissal

of the Fourteenth Amendment claim.

Hatten isn’t entitled to qualified immunity on that claim. We make no

judgment as to whether plaintiffs are entitled to assert this claim through

their survivorship action, or if there are any damages available.

18 JONES V. LVMPD

D. State Law Claims

Plaintiffs also present state law claims for false

arrest/imprisonment, battery and negligence. The district

court held that Nevada’s discretionary immunity statute

shielded the officers from liability. The statute precludes

claims against state officers based on acts or omissions

relating to a “discretionary function,” even if that discretion

is abused. Nev. Rev. Stat. § 41.032(2) (1987). But decisions

made in bad faith, such as “abusive” conduct resulting from

“hostility” or “willful or deliberate disregard” for a citizen’s

rights, aren’t protected under the immunity statute even if

they arise out of a discretionary function. Davis v. City of

Las Vegas, 478 F.3d 1048, 1060 (9th Cir. 2007).

Because clearly established law isn’t an element in the

state immunity analysis, we look only to whether a reasonable

jury could find that the officers’ use of force indicated

hostility or willful disregard of Jones’s rights. Considering

all of the facts alleged in the light most favorable to plaintiffs,

we find that there’s a triable issue of fact with regards to the

battery and negligence claims. See Mattos II, 661 F.3d at 448

n.8 (denying state immunity for assault and battery claims

because a jury could find that the use of force was excessive

and violated state law, even though the federal claims were

barred by qualified immunity). While there’s no evidence

that any of the officers acted out of hostility or improper

motive, there’s a factual dispute as to whether the repeated

and simultaneous tasings were so excessive under the

circumstances that they amounted to willful or deliberate

disregard of Jones’s rights. We therefore remand plaintiffs’

battery and negligence claims.

JONES V. LVMPD 19

The false arrest/imprisonment claim, however, fails, even

viewing the facts in the light most favorable to plaintiffs. In

Nevada, false arrest/imprisonment requires the arrestor to

restrain another’s “liberty under the probable imminence of

force without any legal cause or justification.” Hernandez v.

City of Reno, 634 P.2d 668, 671 (Nev. 1981) (citation and

quotation marks omitted). Officer Hatten restrained Jones

with sufficient legal justification: Jones fled from Hatten

during a routine traffic stop. There’s no evidence that

Hatten’s subsequent decision to arrest Jones lacked

justification—let alone that it was made in bad faith. We

affirm the dismissal of the false arrest/imprisonment claim.

AFFIRMED IN PART, REVERSED IN PART. No

costs.

N.R. SMITH, Circuit Judge, concurring in part and dissenting

in part:

I cannot conclude, as the majority does, that the district

court abused its discretion in dismissing Plaintiffs’ Fourth

Amendment claims because the Plaintiffs failed to name the

proper party in interest.1 “A district court abuses its

discretion when it makes an error of law, when it rests its

decision on clearly erroneous findings of fact, or when we are

left with a definite and firm conviction that the district court

committed a clear error of judgment.” United States v. 4.85

Acres of Land, More or Less, Situated in Lincoln Cty., Mont.,

546 F.3d 613, 617 (9th Cir. 2008) (internal quotation marks

1

I concur with all aspects of the majority opinion except for the Rule

17 analysis.

20 JONES V. LVMPD

and citation omitted). None of these errors occurred in the

district court’s Rule 17 analysis. Further, we cannot reverse

the district court under the abuse of discretion standard unless

“the district court reache[d] a result that is illogical,

implausible, or without support in the inference that may be

drawn from the record.” Kode v. Carlson, 596 F.3d 608, 612

(9th Cir. 2010).

The district court dismissed the first and second claims

for relief (the Fourth Amendment claims) for lack of standing

based on Federal Rule of Civil Procedure 17. Rule 17(a)(1)

provides that an action cannot be prosecuted unless it is

asserted by the real party in interest. Thus, under Rule 17, a

claim must be dismissed if it is not brought by the real party

in interest. See Advanced Magnetics, Inc. v. Bayfront

Partners, Inc., 106 F.3d 11, 20 (2d Cir. 1997). The parties

agree that the named Plaintiffs (Johnathan Jones, Rosie Lee

Mathews, and the Estate of Anthony Jones) are not the proper

parties to assert the Fourth Amendment claims. Thus, we

start with the assumption that these claims must be dismissed.

The named parties do not have standing to bring them.

Rule 17(a)(3) does provide a limited exception to this

general rule. Rule 17(a)(3) provides that, (1) “when

determination of the right party to sue is difficult,” or

(2) when an understandable mistake [in naming the real party

in interest] has been made,” see U.S. for Use & Benefit of

Wulff v. CMA, Inc., 890 F.2d 1070, 1074 (9th Cir. 1989)

(citing Note of Advisory Committee on 1966 Amendment to

Fed. R. Civ. P. 17), courts “may not dismiss an action for

failure to prosecute in the name of the real party in interest

until, after an objection, a reasonable time has been allowed

for the real party in interest to ratify, join, or be substituted

into the action,” Fed. R. Civ. P. 17(a)(3).

JONES V. LVMPD 21

Because the district court did not commit legal error or

reach an illogical or implausible decision in determining that

the Rule 17(a)(3) exception does not apply in this case, we

must affirm the district court (given our standard of review).

Further, even assuming the Rule 17(a)(3) exception does

apply, we must still affirm, because the district court satisfied

the requirements of Rule 17(a)(3) before dismissing the

Fourth Amendment claims. Finally, the Plaintiffs have never

made the argument that the majority now articulates for them.

A.

The district court did not abuse its discretion in

determining that the Rule 17(a)(3) exception does not apply

to this case. The majority does not contend that

“determination of the right party to sue” was difficult; indeed,

that contention would have been difficult (if not impossible)

to make. Nevada law plainly states who can bring a survival

action. See Nev. Rev. Stat. § 41.100(3). The majority instead

concludes that the district court abused its discretion in

concluding that Plaintiffs’ mistake was not “understandable.”2

According to the majority, it was understandable that

Plaintiffs believed that they had named the proper party (in

the proper capacity), because the district court had approved

a stipulation that would amend their complaint to name

Decedent’s estate as a plaintiff. The district court did not

refuse this reasoning illogically, implausibly, or without

support for several reasons.

2

Although not explicitly stated, the majority also appears to expand

Rule 17’s application to every “honest mistake,” even if that mistake was

the product of willful blindness to the law’s requirements or lack of due

diligence. Such an expansion is improper, because it is unsupported by

our case law.

22 JONES V. LVMPD

First, the district court correctly reasoned that the law was

so clear that the mistake was not understandable. The

Nevada law does not allow an estate to bring a survival

action. Yet Plaintiffs insisted in their briefs to the district

court—without ever citing any legal authority—that “the

Estate of Anthony Jones is a party that can assert its own

claims for relief.” This insistence, without support, that no

defect existed, was plainly wrong. Even the majority agrees.

Second, although the district court approved a stipulation

allowing Plaintiffs to amend the complaint to add the Estate

of Anthony Jones as a plaintiff, the district court never stated

or determined that the Estate of Anthony Jones was the

proper party to bring the Fourth Amendment claims. In fact,

the stipulation did not mention the Fourth Amendment claims

and, when the stipulation was proposed and signed, any

issues over the proper party in interest had never been raised.

Thus, it was not reasonable for Plaintiffs to interpret the

approved stipulation as an endorsement of the propriety of

their Amended Complaint.

Third, the district court found the reasons given for

Plaintiffs’ mistake to be disingenuous. Plaintiffs asserted in

their original and Amended Complaint that Johnathan Jones

had “filed the necessary documents with the Clark County

Probate Court to be appointed as the special administrator of

THE ESTATE OF ANTHONY JONES.” However, after the

motion for summary judgment was filed, it was clear that

Johnathan Jones had not in fact filed the necessary documents

to complete this process. Nevertheless, in Plaintiffs briefs to

the district court, they continually insisted that their original

assertion was accurate. Also important, Plaintiffs never

explained to the district court why they had to add the Estate

of Anthony Jones as a plaintiff if Johnathan Jones had filed

JONES V. LVMPD 23

all the necessary documents to have legal standing to bring

the Fourth Amendment claims.

In sum, it was not an abuse of discretion for the district

court to conclude that Plaintiffs’ mistake was not

understandable when it was based on an unfounded

interpretation of the law and an inaccurate account of the

facts.

B.

Even assuming that Plaintiffs had made an

“understandable mistake,” the district court did not abuse its

discretion in dismissing the Fourth Amendment claims. The

district court gave Plaintiffs ample time to substitute the real

party in interest, as Rule 17(a)(3) requires. Rule 17 requires

district courts to give plaintiffs “a reasonable time” to

substitute the real party “after an objection” has been made.

Defendants first objected that the real party in interest had not

been named in their motion for summary judgment, filed on

November 8, 2013. And yet, Plaintiffs did not seek to amend

their complaint to name Johnathan Jones in his capacity as

special administrator of Decedent’s estate until November 11,

2014—after the district court granted Defendants’ motion for

summary judgment on November 6, 2014. Thus, Plaintiffs

had a year to substitute the real party in interest after an

objection was made. The plain language of Rule 17 does not

require district courts to give plaintiffs “a reasonable time” to

substitute the real party in interest after the court has notified

them that the real party in interest has not been named (as the

majority suggests). Thus, the district court did not commit

legal error (and did not abuse its discretion) in dismissing the

Fourth Amendment claims after giving Plaintiffs a year after

the objection was made to substitute the real party in interest.

24 JONES V. LVMPD

Moreover, Plaintiffs’ actions show they were on notice

that they had not named the proper party. Just ten days after

Defendants objected (on November 18, 2013), Plaintiffs filed

(in Nevada state court) the ex parte order naming Johnathan

Jones as special administrator of decedent’s estate, which had

been signed (but not filed) seven months earlier—on April 9,

2013. This filing finally gave legal effect to the order. See

Rust v. Clark Cty. Sch. Dist., 747 P.2d 1380, 1382 (Nev.

1987). Thus, on November 18, 2013, Johnathan Jones gained

the proper legal status to bring the Fourth Amendment claims.

However, Plaintiffs never sought to amend the complaint to

name the real party in interest until November 11, 2014, even

though (1) Johnathan Jones gained the proper legal status a

year earlier, and (2) Plaintiffs had previously acknowledged

in their brief to the district court that Nevada Revised Statute

section 41.100(3) extends the right to bring a survival action

to the official representatives of an individual’s estate. Thus,

Plaintiffs were given more than a reasonable amount of time

to substitute the real party in interest after they became aware

that Johnathan Jones did not have the proper status to assert

the Fourth Amendment claims. Accordingly, the district

court did not commit an error of law (and did not otherwise

abuse its discretion) in concluding that Rule 17(a)(3) did not

prevent the district court from dismissing the Fourth

Amendment claims.

C.

Finally, the district court cannot have abused its discretion

in failing to grant relief that was never requested. Plaintiffs

have never argued to the district court that Rule 17(a)(3)

required the district court to allow them to name Johnathan

Jones, as administrator of Anthony Jones’s estate, as a party.

Even after the district court granted Defendants’ motion for

JONES V. LVMPD 25

summary judgment, Plaintiffs still did not ever assert a Rule

17 defense; instead, they filed a Rule 15 motion and asserted

that “justice requires leave to amend.” Thus, Plaintiffs have

never even attempted to articulate to the district court why

their mistake in not naming the proper party in interest was

“understandable.”

I agree that it is best to decide cases on the merits and I

agree that, absent this unreasonable mistake in failing to

name the proper party, this case should proceed to trial.

However, the majority here ignores the standard of review in

reversing the district court’s Rule 17 decision. Instead, it

reverses the district court on an argument never made by

anyone but it.

For all of these reasons, I would affirm the district court’s

decision to dismiss the Fourth Amendment claims pursuant

to Rule 17.