Ian Tuuamalemalo v. Shahann Greene

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IAN TUUAMALEMALO, No. 18-15665

Plaintiff-Appellee,

D.C. No.

v. 2:16-cv-00619-JAD-VCF

SHAHANN GREENE, Officer,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Nevada

Jennifer A. Dorsey, District Judge, Presiding

Argued and Submitted March 15, 2019

San Francisco, California

Filed December 24, 2019

Before: William A. Fletcher, Paul J. Watford,

and Andrew D. Hurwitz, Circuit Judges.

Per Curiam Opinion;

Concurrence by Judge W. Fletcher

2 TUUAMALEMALO V. GREENE

SUMMARY*

Civil Rights

The panel affirmed the district court’s denial, on summary

judgment, of qualified immunity to a police officer in an

action brought pursuant to 42 U.S.C. § 1983 and state law

alleging that defendant used excessive force when he placed

plaintiff in a chokehold during an encounter.

The panel stated that this Circuit’s decision in Barnard v.

Theobald, 721 F.3d 1069 (9th Cir. 2013), squarely addressed

the constitutionality of the use of a chokehold on a non-

resisting person. The panel held that viewing plaintiff’s

version of the facts in the light most favorable to him, he was

not resisting arrest when defendant placed him in a

chokehold. Further, there was little chance he could initiate

resistance with five other officers fully restraining him and

pinning him to the ground. The panel concluded that given

the state of the law in this Circuit, it was clearly established

that the use of a chokehold on a non-resisting, restrained

person violated the Fourth Amendment’s prohibition on the

use of excessive force. The panel further held that the same

version of the facts that justified the district court’s decision

to deny defendant qualified immunity under § 1983 precluded

a grant of immunity under Nevada law.

Concurring, Judge W. Fletcher wrote separately to

address the continuing confusion over the proper standard for

determining appealability of interlocutory orders denying

*

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

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

TUUAMALEMALO V. GREENE 3

motions for summary judgment based on qualified immunity

under § 1983.

COUNSEL

Craig R. Anderson (argued), Marquis Aurbach Coffing, Las

Vegas, Nevada, for Defendant-Appellant.

Paola M. Armeni (argued), Clark Hill PLLC, Las Vegas,

Nevada, for Plaintiff-Appellee.

OPINION

PER CURIAM:

Defendant Shahann Greene, a police officer in Las Vegas,

Nevada, placed Ian Tuuamalemalo in a chokehold during an

encounter following a concert. The chokehold rendered

Tuuamalemalo unconscious, and it took some time and

several attempts to revive him. Tuuamalemalo sued under

42 U.S.C. § 1983, alleging excessive force. Officer Greene

moved for summary judgment based on qualified immunity.

The district court denied the motion. Greene brought an

interlocutory appeal. We affirm.

I. Factual and Procedural Background

Some of the evidence is undisputed. Where the evidence

is in conflict, we recount it in the light most favorable to

Tuuamalemalo, the non-moving party.

4 TUUAMALEMALO V. GREENE

On the evening of January 25, 2014, Tuuamalemalo went

to a reggae concert at “The Joint,” a music venue in the Hard

Rock Hotel and Casino in Las Vegas, Nevada.

Tuuamalemalo was joined by his wife, his cousin, and his

cousin’s husband in an upstairs booth. As the group listened

to the concert, they had a few drinks.

While Tuuamalemalo was at the concert, the Homeland

Saturation Team of the Las Vegas Metropolitan Police

Department (“LVMPD”), a unit specializing in riot control,

was finishing its shift. Sergeant Tom Jenkins was in the

squad locker room getting ready to go home when he

received a call from LVMPD Gang Sergeant Andrew Burnett

requesting backup at The Joint to ensure that a fight would

not break out. Sergeant Jenkins placed his team back on duty

and drove to the Hard Rock Hotel. Officer Greene drove with

Officer Sergio MPhillips to join Sergeant Jenkins at the hotel.

Video surveillance from the hotel shows a large number of

police officers at the scene.

After the officers arrived at the hotel, Sergeant Burnett

approached Darin Afemata, a member of Tuuamalemalo’s

party. Tuuamalemalo approached the officers and tried to

talk to them. One of the officers told him “to shut the ‘F’

up.” A surveillance video shows police officers and members

of Tuuamalemalo’s group pushing one another.

Tuuamalemalo made his way to the front of his group. After

reaching the front of the group, Tuuamalemalo was pushed by

one of the officers.

Tuuamalemalo and other patrons were moved to a

hallway outside The Joint but still inside the hotel. They

were closely followed by a group of officers. As

Tuuamalemalo was pushed along the hallway with a mixed

TUUAMALEMALO V. GREENE 5

group of patrons and police officers, he collapsed. With the

help of officers and patrons, Tuuamalemalo was able to stand

up. He began walking toward the hotel exit with help from

two friends, one on each side.

A group of officers followed Tuuamalemalo and his

friends as they walked toward the exit. Sergeant Jenkins

pushed through the group and grabbed the back of

Tuuamalemalo’s shirt. The video shows Tuuamalemalo

turning around. Sergeant Jenkins then punched

Tuuamalemalo on the left side of his face. After Jenkins

punched Tuuamalemalo, five officers took Tuuamalemalo to

the ground. Officer Greene put Tuuamalemalo in a

chokehold.

The video shows Tuuamalemalo on the floor with a

number of officers on top of him. Nothing in the video shows

resistance by Tuuamalemalo. Officer Greene’s chokehold

was a lateral vascular neck restraint (“LVNR”), which

restricts the flow of blood to the brain rather than restricting

air flow. The chokehold rendered Tuuamalemalo

unconscious. It took several attempts to revive him.

Tuuamalemalo testified in his deposition, “My legs aren’t

moving, I’m not fighting back. I’m not trying to resist,

kicking, nothing. The whole time I had my hands spread

out.” “Then we all went down, and I remember somebody

yelling, ‘Choke his ass out.’” Tuuamalemalo testified that the

next thing he remembered was waking up.

Tuuamalemalo was arrested for (1) disorderly conduct,

(2) resisting arrest, (3) provoking commission of breach of

peace, and (4) malicious destruction of property. He was

transported to Clark County Detention Center and was

6 TUUAMALEMALO V. GREENE

released on bail the next day. All charges were ultimately

dismissed.

On January 25, 2015, Tuuamalemalo filed suit in Nevada

state court. Defendants removed the case to federal court,

and Tuuamalemalo subsequently filed an Amended

Complaint (“AC”). The AC named Sergeant Jenkins, Officer

MPhillips, Officer Greene, and LVMPD as defendants. The

complaint included false arrest and excessive force claims

against the officers; a failure to train claim against LVMPD;

and analogous state law claims for assault, battery, and

intentional infliction of emotional distress.

Following discovery, defendants moved for summary

judgment. The individual defendants claimed qualified

immunity under federal law and discretionary immunity

under state law. On March 27, 2018, the district court issued

an order granting summary judgment in favor of Officer

MPhillips, Sergeant Jenkins, and LVMPD, but denied

summary judgment to Officer Greene. The claims against

Greene all relate to his use of the chokehold on

Tuuamalemalo. Greene brought an interlocutory appeal of

the denial of his motion for summary judgment.

II. Appellate Jurisdiction

Tuuamalemalo argues that we lack jurisdiction to review

the district court’s interlocutory order denying summary

judgment to Officer Greene under § 1983 and under state law.

Greene freely admits that he administered the chokehold.

Tuuamalemalo points out that the district court held that there

was a genuine issue of material fact as to whether

Tuuamalemalo was resisting at the time Greene applied the

chokehold, and therefore as to whether Greene is entitled to

TUUAMALEMALO V. GREENE 7

qualified immunity. Therefore, he contends, we lack

appellate jurisdiction. We have jurisdiction under Plumhoff

v. Rickard, 572 U.S. 765 (2014), to review the decision of the

district court, viewing the facts in the light most favorable to

Tuuamalemalo, the nonmoving party.

We also have interlocutory appellate jurisdiction to

review the district court’s denial of Officer Greene’s motion

for summary judgment on Tuuamalemalo’s state-law claims.

For claims of immunity under state law, “the availability of

an appeal depends on whether, under state law, the immunity

functions as an immunity from suit or only as a defense to

liability.” Liberal v. Estrada, 632 F.3d 1064, 1074 (9th Cir.

2011) (emphasis in original). “A denial of summary

judgment is immediately appealable when the immunity is an

immunity from suit, but not when it is a mere defense to

liability.” Id. (citing Mitchell, 472 U.S. at 526). Both parties

agree that under Nevada law, immunity for discretionary acts

provides police officers with immunity from suit. See ASAP

Storage, Inc. v. City of Sparks, 173 P.3d 734, 745–46 (Nev.

2007) (holding that Nevada’s discretionary immunity statute

provides immunity from suit). Just as with the denial of

qualified immunity under § 1983, we may review the district

court’s denial of discretionary immunity under state law.

III. Standard of Review

In reviewing summary judgment rulings by the district

court, “we assume the version of the material facts asserted

by the non-moving party to be correct.” Jeffers v. Gomez,

267 F.3d 895, 905 (9th Cir. 2001) (emphasis omitted)

(quoting Schwenk v. Hartford, 204 F.3d 1187, 1195 (9th Cir.

2000)). In qualified immunity cases, as in other cases, “we

view the facts in the light most favorable to the nonmoving

8 TUUAMALEMALO V. GREENE

party.” Plumhoff, 572 U.S. at 768. We review de novo the

district court’s determinations regarding official immunity.

Deorle v. Rutherford, 272 F.3d 1272, 1278 (9th Cir. 2001)

(qualified immunity); Martinez v. Maruszczak, 168 P.3d 720,

724 (Nev. 2007) (discretionary immunity under Nevada state

law).

IV. Qualified Immunity under § 1983

To determine whether Officer Greene is entitled to

summary judgment based on qualified immunity under

§ 1983, we ask two questions. First, “[t]aken in the light

most favorable to the party asserting the injury, do the facts

alleged show the officer’s conduct violated a constitutional

right?” Scott v. Harris, 550 U.S. 372, 377 (2007) (quoting

Saucier v. Katz, 533 U.S. 194, 201 (2001)). Second, “[i]f . . .

the court finds a violation of a constitutional right, ‘the next,

sequential step is to ask whether the right was clearly

established . . . in light of the specific context of the case.’”

Id. (quoting Saucier, 533 U.S. at 201) (second ellipsis in

original). This sequence is the analytically logical way to

proceed, but we have discretion to decide the second question

first, thereby avoiding the first question. Pearson v.

Callahan, 555 U.S. 223, 236 (2009).

Officer Greene does not dispute that, viewing the

evidence in the light most favorable to Tuuamalemalo, his use

of a chokehold violated the Fourth Amendment. Therefore,

we turn to the second question: whether Greene’s use of a

chokehold violated a clearly established right “in light of the

specific context of the case.” Scott, 550 U.S. at 377 (quoting

Saucier, 533 U.S. at 201).

TUUAMALEMALO V. GREENE 9

To be clearly established, “[t]he contours of the right must

be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.”

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

Supreme Court has repeatedly cautioned us “not to define

clearly established law at a high level of generality.”

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (citation

omitted). “To determine whether Officer [Greene] violated

clearly established law, we look to cases relevant to the

situation [Greene] confronted, mindful that there need not be

a case directly on point.” A.K.H. rel. Landeros v. City of

Tustin, 837 F.3d 1005, 1013 (9th Cir. 2016) (internal citations

and quotation marks omitted). The right must be settled law,

meaning that it must be clearly established by controlling

authority or a robust consensus of cases of persuasive

authority. District of Columbia v. Wesby, 138 S. Ct. 577,

590–91 (2018). Viewing the evidence in the light most

favorable to Tuuamalemalo, we conclude that Officer Greene

violated clearly established Fourth Amendment law when he

placed Tuuamalemalo in a chokehold and rendered him

unconscious.

Our decision in Barnard v. Theobald, 721 F.3d 1069 (9th

Cir. 2013), squarely addressed the constitutionality of the use

of a chokehold on a non-resisting person. In that case,

officers placed the non-resisting, restrained plaintiff in a

chokehold and then pepper sprayed him. Id. at 1072–73. We

affirmed the jury’s finding that the officers’ use of force

violated the Fourth Amendment. Id. at 1076. Even earlier,

in Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d

1052, 1059 (9th Cir. 2003), we had held that “any reasonable

person . . . should have known that squeezing the breath from

a compliant, prone, and handcuffed individual despite his

10 TUUAMALEMALO V. GREENE

pleas for air involves a degree of force that is greater than

reasonable.” These cases are directly on point.

Viewing Tuuamalemalo’s version of the facts in the light

most favorable to him, he was not resisting arrest when

Officer Greene placed him in a chokehold. Further, there was

little chance he could initiate resistance with five other

officers fully restraining him and pinning him to the ground.

Given the state of the law in our circuit, it was clearly

established that the use of a chokehold on a non-resisting,

restrained person violates the Fourth Amendment’s

prohibition on the use of excessive force.

Our circuit is not alone in reaching this conclusion. There

is a robust consensus among the circuits that the use of a

chokehold on a non-resisting person violates the Fourth

Amendment. See Coley v. Lucas Cty., 799 F.3d 530, 541 (6th

Cir. 2015) (“Chokeholds are objectively unreasonable where

an individual is already restrained or there is no danger to

others.”); United States v. Livoti, 196 F.3d 322, 324–27 (2d

Cir. 1999) (finding that use of a chokehold against a

handcuffed, non-resistant subject was an excessive use of

force); Valencia v. Wiggins, 981 F.2d 1440, 1447 (5th Cir.

1993) (holding use of a “choke hold and other force . . . to

subdue a non-resisting [detainee] and render him temporarily

unconscious was unreasonable and was an excessive use of

force”). Given the consensus of authority holding that use of

a chokehold against a non-resisting, restrained person violates

the Fourth Amendment, Tuuamalemalo’s right to be free

from excessive force under the circumstances he describes

was clearly established.

Officer Greene asks us to assume that Tuuamalemalo was

resisting. But the standard on summary judgment requires us

TUUAMALEMALO V. GREENE 11

to view the facts in the light most favorable to the plaintiff.

At this stage of the proceedings, we must assume that

Tuuamalemalo was not resisting when Officer Greene used

a chokehold on him. See Wall v. City of Orange, 364 F.3d

1107, 1112 (9th Cir. 2004). Greene also argues that the

district court did not appropriately credit the ten minutes of

video leading up to the use of the chokehold on

Tuuamalemalo, during which Tuuamalemalo was aggressive

with officers. But the district court did consider the previous

portions of the video (as have we). Indeed, on that ground,

the court granted qualified immunity to Officer Jenkins, who

struck Tuuamalemalo shortly before he was placed in a

chokehold. There is no reason to believe that the district

court improperly discounted any of the other record evidence

in this case.

V. Immunity Under State Law

The district court also denied Officer Greene’s motion for

summary judgment on Tuuamalemalo’s state law claims for

assault and battery and for intentional infliction of emotional

distress. Under Nevada law, police officers “are privileged

to use that amount of force which reasonably appears

necessary,” and are liable only to the extent they use more

force than reasonably necessary. Ramirez v. City of Reno,

925 F. Supp. 681, 691 (D. Nev. 1996). To the extent that

Tuuamalemalo’s version of the facts precludes a finding that

Greene’s use of a chokehold was reasonable under the federal

law, the same version of the facts precludes summary

judgment on Tuuamalemalo’s state law claims.

Officer Greene argues that even if there were issues of

fact as to whether his use of force was reasonable, he was

nevertheless entitled to immunity under Nevada law, which

12 TUUAMALEMALO V. GREENE

bars 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). “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.” Jones v. Las

Vegas Metro. Police Dep’t, 873 F.3d 1123, 1133 (9th Cir.

2017) (quoting Davis v. City of Las Vegas, 478 F.3d 1048,

1060 (9th Cir. 2007)).

With respect to Tuuamalemalo’s claims under state law,

“we look only to whether a reasonable jury could find that the

officers’ use of force indicated hostility or willful disregard”

of his rights. Id. Applying a chokehold to a non-resisting,

pinned person violated Tuuamalemalo’s clearly established

federal rights, and a jury could conclude that Officer Greene’s

decision was so excessive that it amounted to willful or

deliberate disregard of those rights. See Davis, 478 F.3d at

1060 (“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.”). Further, as the

district court noted, acts that violate the law are generally not

the kinds of discretionary acts entitled to immunity. See

Nurse v. United States, 226 F.3d 996, 1002 (9th Cir. 2000)

(“In general, governmental conduct cannot be discretionary

if it violates a legal mandate.”). In sum, the same version of

the facts that justified the district court’s decision to deny

Greene qualified immunity under § 1983 precludes a grant of

immunity under Nevada law.

TUUAMALEMALO V. GREENE 13

VI. Conclusion

It has long been clear that a police officer may not seize

a non-resisting, restrained person by placing him in a

chokehold. Barnard, 721 F.3d at 1076. Viewing the

evidence in the light most favorable to Tuuamalemalo, that is

precisely what Officer Greene did here. We affirm the

district court’s denial of qualified immunity and remand for

further proceedings consistent with this opinion.

AFFIRMED and REMANDED.

W. FLETCHER, Circuit Judge, concurring:

I fully concur in the court’s opinion. I write separately to

address the continuing confusion over the proper standard for

determining appealability of interlocutory orders denying

motions for summary judgment based on qualified immunity

under § 1983.

The story begins with Mitchell v. Forsyth, 472 U.S. 511

(1985), where the Supreme Court held that an order denying

a public official’s motion for summary judgment based on

qualified immunity is immediately appealable despite the

interlocutory character of the order. Id. at 524–30. The

standard for granting or denying a motion for summary

judgment by the district court was not affected by Mitchell.

However, there was uncertainty about the circumstances in

which an interlocutory appeal could be heard. In Johnson v.

Jones, 515 U.S. 304 (1995), the Court noted that “courts of

appeals hold different views about the immediate

appealability of . . . ‘evidence insufficiency’ claims made by

14 TUUAMALEMALO V. GREENE

public official defendants who assert qualified immunity

defenses.” Id. at 308. The Court “therefore granted

certiorari.” Id. at 309.

The plaintiff in Johnson sued five police officers for use

of excessive force. Id. at 307. Three of the officers moved

for summary judgment, arguing that there was no evidence

that they had beaten plaintiff or had even been present when

other officers had allegedly done so. Id. The district court

denied qualified immunity, finding that there was a genuine

dispute of material fact as to whether the officers were

present. The three officers appealed the court’s interlocutory

order. Id. at 308. The Seventh Circuit held that it lacked

appellate jurisdiction on interlocutory review over questions

of “evidence sufficiency.” Id.

Because Mitchell did not change the summary judgment

standard, a district court denying a defendant police officer’s

motion must view the evidence in the light most favorable to

the non-moving party. See Adickes v. S.H. Kress & Co.,

398 U.S. 144, 157 (1970). The most obvious way to

implement Mitchell would have been to allow an

interlocutory appeal from a denial of defendant’s motion,

whether the district court (1) used plaintiff’s version of the

facts, construing evidence in the light most favorable to the

plaintiff, or (2) used the defendant’s version of the facts. See

Mitchell, 472 U.S. at 527 (addressing these two alternatives).

Yet the Court in Johnson cited only the second of these

alternatives as a basis for interlocutory appellate jurisdiction,

leaving out the alternative of relying on the plaintiff’s version

of the facts and construing the evidence in the light most

favorable to the plaintiff. The Court wrote:

TUUAMALEMALO V. GREENE 15

All [the Court of Appeals] need determine is

a question of law: whether the legal norms

allegedly violated by the defendant were

clearly established at the time of the

challenged actions or, in cases where the

district court has denied summary judgment

for the defendant on the ground that even

under the defendant’s version of the facts the

defendant’s conduct violated clearly

established law, whether the law clearly

proscribed the actions the defendant claims he

took.

Johnson, 515 U.S. at 312 (quoting Mitchell, 472 U.S. at 528)

(emphasis added). The Court wrote further:

We now consider the appealability of a

portion of a district court’s summary

judgment order that, though entered in a

“qualified immunity” case, determines only a

question of “evidence sufficiency,” i.e., which

facts a party may, or may not, be able to prove

at trial. This kind of order, we conclude, is

not appealable. That is, the District Court’s

determination that the summary judgment

record in this case raised a genuine issue of

fact concerning petitioners’ involvement in

the alleged beating of respondent was not a

“final decision” within the meaning of the

relevant statute.

Id. at 313.

16 TUUAMALEMALO V. GREENE

The most natural reading of the passages just quoted is

that a court of appeals has interlocutory appellate jurisdiction

over an order denying summary judgment only when a

district court denies a defendant’s motion for summary

judgment based on the defendant’s version of the facts. A

court of appeals does not have jurisdiction if a plaintiff’s

version of the facts would defeat qualified immunity but that

version of the facts is disputed.

This is a very odd understanding of Mitchell, for it would

rarely result in an appealable interlocutory order. Defendant

police officers asserting qualified immunity rarely provide

versions of the facts that would result in interlocutory orders

denying their motions for summary judgment. Almost all

interlocutory orders denying defendants’ motions for

summary judgment are based on plaintiffs’ versions of the

facts, viewing the evidence in the light most favorable to

plaintiffs. That is, almost all orders denying summary

judgment to police officer defendants are entered in cases

where there are disputed questions of fact. Yet, it is in

precisely such cases that Johnson—under the most natural

reading of the passages just quoted—tells us that courts of

appeals do not have jurisdiction.

The Court’s decision in Johnson has created persistent

confusion in the courts of appeals. On the one hand, the

courts of appeals understand the purpose of Mitchell. They

understand the importance of interlocutory appellate

jurisdiction in cases where, in the view of the district court,

plaintiff’s version of the facts, construed in the light most

favorable to plaintiff, would defeat qualified immunity. On

the other hand, they are confronted with the language of

Johnson that appears to preclude the exercise of appellate

jurisdiction in exactly those cases.

TUUAMALEMALO V. GREENE 17

A sample of appellate cases reveals the analytic chaos that

has resulted. See, e.g., Diaz v. Martinez, 112 F.3d 1, 3 (1st

Cir. 1997) (“The dividing line that separates an immediately

appealable order from a nonappealable one in these purlieus

is not always easy to visualize.”); Camilo-Robles v. Hoyos,

151 F.3d 1, 8 (1st Cir. 1998) (“Cases are clear enough at the

extremes. . . . [But d]etermining the existence vel non of

appellate jurisdiction in cases closer to the equator is more

difficult. . . . If this were not complex enough, the district

judge is not legally obliged to explain the basis on which a

denial of summary judgment rests.”); Cunningham v. City of

Wenatchee, 345 F.3d 802, 809 (9th Cir. 2003) (“The

confusion arises from the language in Johnson that where the

summary judgment order determines only a question of

evidentiary sufficiency then this order, even though entered

in a qualified immunity case, is not appealable.”); Walton v.

Powell, 821 F.3d 1204, 1209 (10th Cir. 2016) (“[W]e have

struggled ourselves to fix the exact parameters of the Johnson

innovation.”); Barry v. O’Grady, 895 F.3d 440, 446 (6th Cir.

2018) (“Each of our too-many-to-count additional glosses on

Johnson is needlessly complicated. . . .”) (Sutton, J.,

dissenting).

The Supreme Court did not at first appear to understand

the problem it had created in Johnson. In several cases, it

reviewed without comment court of appeals decisions in

cases where the district court had denied motions for

summary judgment using plaintiffs’ versions of the facts,

viewing the evidence in the light most favorable to

plaintiffs—in other words, in cases where plaintiffs’ evidence

was disputed.

In Saucier v. Katz, 533 U.S. 194 (2001), plaintiff sued

Saucier, a military police officer, under Bivens v. Six

18 TUUAMALEMALO V. GREENE

Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971),

alleging excessive use of force. Saucier moved for summary

judgment based on qualified immunity. The district court

denied summary judgment, holding that there was “a dispute

on a material fact . . . concerning whether excessive force was

used.” 533 U.S. at 199. Saucier brought an interlocutory

appeal, which the Ninth Circuit heard and decided. On

certiorari, the Supreme Court recited the standard for

summary judgment where there are disputed facts: “A court

required to rule upon the qualified immunity issue must

consider . . . this threshold question: Taken in the light most

favorable to the party asserting the injury, do the facts alleged

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

Id. at 201. The Court then decided Saucier’s interlocutory

appeal without questioning its own appellate jurisdiction or

that of the Ninth Circuit.

In Brosseau v. Haugen, 543 U.S. 194 (2004), plaintiff

Haugen sued Brosseau, a police officer, under 42 U.S.C.

§ 1983, alleging excessive use of force. The district court

granted summary judgment to Brosseau based on qualified

immunity. The Ninth Circuit, viewing the evidence in the

light most favorable to plaintiff, reversed and remanded for

trial. The Supreme Court granted certiorari and reversed,

reciting: “The material facts, construed in a light most

favorable to Haugen, are as follows.” Id. at 195. Later in its

opinion, the Court recited the language from Saucier:

“[t]aken in the light most favorable to the party asserting the

injury.” Id. at 197. The Court decided the case without

questioning its own appellate jurisdiction or that of the Ninth

Circuit.

In Scott v. Harris, 550 U.S. 372 (2007), the plaintiff sued

Scott, a police officer, under 42 U.S.C. § 1983, alleging

TUUAMALEMALO V. GREENE 19

excessive use of force. Scott moved for summary judgment

based on qualified immunity. “The District Court denied the

motion, finding that there are material issues of fact on which

the issue of qualified immunity turns which present sufficient

disagreement to require submission to a jury.” Id. at 376

(internal quotation marks omitted). Scott brought an

interlocutory appeal. The Eleventh Circuit “[took plaintiff’s]

view of the facts as given” and affirmed. Id.

Before the Supreme Court, the parties in Scott argued

vigorously for and against appellate jurisdiction, based on

conflicting interpretations of Johnson. Resp’t’s Br., 2007

WL 118977, at *1–3; Pet’r’s Reply Br., 2007 WL 760511, at

*1–5. The American Civil Liberties Union filed an amicus

brief devoted solely to arguing, based on Johnson, that there

was no interlocutory appellate jurisdiction. The ACLU

wrote:

Here, the district court’s denial of Petitioner

Scott’s summary judgment motion expressly

determined that the pretrial record set forth a

genuine issue of fact for trial. . . . As in

Johnson v. Jones, therefore, the district court

order in this case identified a fact-related

dispute about the pre-trial record. Its holding

that the evidence in the pre-trial record was

sufficient to show a genuine issue of fact for

trial is, thus, not appealable.

ACLU Amicus Br., 2007 WL 139201, at *6.

The Supreme Court did not acknowledge the parties’

dispute about interlocutory appellate jurisdiction under

Johnson. It simply decided the case. It wrote:

20 TUUAMALEMALO V. GREENE

The first step in assessing the constitutionality

of Scott’s actions is to determine the relevant

facts. As this case was decided on summary

judgment, there have not yet been factual

findings by a judge or jury, and respondent’s

version of events (unsurprisingly) differs

substantially from Scott’s version. When

things are in such a posture, courts are

required to view the facts and draw reasonable

inferences “in the light most favorable to the

party opposing the [summary judgment]

motion.” In qualified immunity cases, this

usually means adopting (as the Court of

Appeals did here) the plaintiff’s version of the

facts.

Scott, 550 U.S. at 378 (alterations in original and citations

omitted).

In none of these three cases, including Scott, did the

Supreme Court cite, or in any way acknowledge, the

problematic language in Johnson.

In Plumhoff v. Rickard, 572 U.S. 765 (2014), the Court

finally addressed the tension between Johnson and its own

post-Johnson practice. Plaintiff was the daughter of the

driver of a fleeing car who had been shot and killed by police

officers. She brought suit under 42 U.S.C. § 1983, alleging

excessive use of force. The district court denied the officers’

motion for summary judgment based on qualified immunity.

A motions panel of the Sixth Circuit initially dismissed the

officers’ appeal under Johnson on the ground that it lacked

jurisdiction. On rehearing, the motions panel vacated its

dismissal and referred the jurisdictional issue to a merits

TUUAMALEMALO V. GREENE 21

panel. The merits panel interpreted Scott as having created an

“exception” to Johnson, allowing an interlocutory appeal “to

challenge blatantly and demonstrably false factual

determinations.” Id. at 771 (internal quotation marks

omitted). The merits panel heard the appeal and affirmed the

district court.

As in Scott, the parties argued vigorously in the Supreme

Court for and against interlocutory appellate jurisdiction.

Resp’t’s Br., 2014 WL 411285, at *4–5; Pet’r’s Reply Br.,

2014 WL 689547, at *1–3. Ohio and twenty-one other states

filed an amicus brief devoted almost entirely to Johnson.

They wrote in their brief:

The Court should resolve this jurisdictional

issue because the circuit courts have

erratically applied Johnson. And their

confusion about Johnson’s domain has only

increased after Scott v. Harris, 550 U.S. 372

(2007), which rejected a district court’s

version of the disputed facts in the process of

finding a police officer entitled to qualified

immunity.

States’ Amicus Br., 2014 WL 69402, at *2.

Instead of explaining—or, better yet, abandoning—

Johnson, the Court distinguished it. The Court wrote, “The

District Court order in this case is nothing like the order in

Johnson.” Plumhoff, 572 U.S. at 773. In Johnson, the three

police officers appealing the interlocutory order denying

summary judgment contended that they had not been present

when the beating took place and had had nothing to do with

it. By contrast, the Court wrote in Plumhoff, “Petitioners do

22 TUUAMALEMALO V. GREENE

not claim that other officers were responsible for shooting

Rickard; rather, they contend that their conduct did not

violate the Fourth Amendment and, in any event, did not

violate clearly established law.” Id.

In deciding the officers’ interlocutory appeal, the Court in

Plumhoff accepted plaintiff’s version of the facts, viewed in

the light most favorable to the plaintiff. The Court wrote:

Because this case arises from the denial of the

officers’ motion for summary judgment, we

view the facts in the light most favorable to

the nonmoving party, the daughter of the

driver who attempted to flee.

Id. at 768. The Court wrote further:

The District Court order here is not materially

distinguishable from the District Court order

in Scott v. Harris, and in that case we

expressed no doubts about the jurisdiction of

the Court of Appeals under § 1291.

Accordingly, here, as in Scott, we hold that

the Court of Appeals properly exercised

jurisdiction, and we therefore turn to the

merits.

Id. 773.

The Ninth Circuit had largely made its peace with

Johnson without waiting for Plumhoff. For example, in

George v. Morris, 736 F.3d 829, 835–36 (9th Cir. 2013), we

wrote that Scott had not overruled or abandoned Johnson.

But in George, we did exactly what the Court in Johnson had

TUUAMALEMALO V. GREENE 23

told us not to do, and did exactly what the Court had done in

Scott. The material facts in George were disputed. Donald

George, a terminally ill brain cancer patient, had gotten out of

bed in the middle of the night. Id. at 832. His wife saw him

retrieve a pistol from his truck and load it with ammunition.

She called 911. Santa Barbara Sheriff’s Deputies responded

to the call. Deputy Morris and two other deputies shot and

killed George as he stood on a balcony of his house, holding

his pistol. George’s widow brought suit under § 1983,

alleging excessive force. Id. at 833.

George’s widow presented evidence that George had

stood on the balcony with one hand holding his walker and

the other holding the gun, and that George had never

“manipulated the gun, or pointed it directly at deputies.” Id.

Deputy Morris, on the other hand, testified in a deposition

that George had pointed the gun at him: “I’m crouched down

and I’m, I remember seeing the, the black hole actually

looking down the barrel as it’s pointed right at me and that

was when, that was when I fired my first shot.” Id. at 833

n.4. We held that Johnson forbade us to credit Morris’s

evidence: “Morris offers a vivid account of Donald’s final

moments that we cannot credit because the district court

found it to be genuinely disputed.” Id. (emphasis in original).

Purporting to follow Johnson, we credited plaintiff’s version

of the disputed facts and affirmed the district court’s denial of

Morris’s motion for summary judgment. We held:

If the deputies indeed shot the sixty-four-year-

old decedent without objective provocation

while he used his walker, with his gun trained

on the ground, then a reasonable jury could

24 TUUAMALEMALO V. GREENE

determine that they violated the Fourth

Amendment.

Id. at 839.

In so holding, we did what Johnson told us not to do. We

exercised appellate jurisdiction where there were disputed

questions of material fact. We read Johnson as telling us only

that we should not credit Morris’s version of the facts. But,

of course, we did not need Johnson to tell us this, for it was

already the law. Morris was the party moving for summary

judgment. It is black letter law that the district court credits

the non-moving party’s version of the facts in deciding

whether to grant a motion for summary judgment, and that an

appellate court does the same when reviewing the decision of

the district court. That is what the Supreme Court did in

Scott. And that is what the Court did again in Plumhoff,

affirming the correctness of its approach to jurisdiction in

Scott and saving the Johnson approach for use only in cases

where the officer denied being present during, or having

anything to do with, the allegedly excessive use of force. In

light of Plumhoff, it is now clear, in retrospect, that what we

did in George was correct.

In numerous other cases, we have done much as we did in

George. See, e.g., Armstrong v. Asselin, 734 F.3d 984,

988–89 (9th Cir. 2013); Abudiab v. Georgopoulos, 586 F.

App’x 685, 685–86 (9th Cir. 2013); Downs v. Nev. Taxicab

Auth., 554 F. App’x 566, 567 (9th Cir. 2014); Prancevic v.

Macagni, 567 F. App’x 498, 499 (9th Cir. 2014); see also

Foster v. City of Indio, 908 F.3d 1204, 1209–10 (9th Cir.

2018); Rodriguez v. Cty. of L.A., 891 F.3d 776, 791 (9th Cir.

2018); Nicholson v. City of L.A., 935 F.3d 685, 690 (9th Cir.

TUUAMALEMALO V. GREENE 25

2019); Advanced Bldg. & Fabrication, Inc. v. Cal. Highway

Patrol, 918 F.3d 654, 657–58 (9th Cir. 2019).

We have recently recognized that Plumhoff has modified

Johnson. See Foster, 908 F.3d at 1209–10. But we have not

done more than that. We have not interpreted Plumhoff as

restricting Johnson to its facts. But if we are to be faithful to

what the Court wrote in Plumhoff, that is what we should do.

Under Plumhoff, when a district court holds in summary

judgment that a plaintiff’s version of the facts, construed in

the light most favorable to the plaintiff, shows that a

defendant officer has used excessive force, we generally may

exercise interlocutory appellate jurisdiction under Scott.

Only when an officer provides evidence in the district court

showing that he or she was not present and in no way

participated in or authorized the challenged conduct, and

when the district court nonetheless denies the officer’s

motion for summary judgment because plaintiff presents

evidence to the contrary, are we without jurisdiction to hear

the officers’ interlocutory appeal.

It is distinctly counterintuitive that this should be the

remnant of Johnson that survives. Officers who present

evidence that they were neither present nor in any way

involved in the use of allegedly excessive force, and who

contend that plaintiffs’ evidence, though contested, construed

in the light most favorable to them, does not show the

contrary, are those officers who most deserve the protection

of interlocutory appeals when their motion for summary

judgment is denied. But I have difficulty reading the

combination of Johnson and Plumhoff any other way. As to

these officers, the district court’s denial of summary

judgment “was not a ‘final decision’ within the meaning of

the relevant statute.” Johnson, 515 U.S. at 313.

26 TUUAMALEMALO V. GREENE

I hope that the Supreme Court will revisit the issue soon

and will disavow Johnson entirely. But until that happens, I

believe that we are, unfortunately, bound to follow what

remains of Johnson.