Ramon Cortesluna v. Manuel Leon

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAMON CORTESLUNA, No. 19-15105

Plaintiff-Appellant,

D.C. No.

v. 3:17-cv-05133-

JSC

MANUEL LEON; ROBERT KENSIC;

DANIEL RIVAS-VILLEGAS; CITY OF

UNION CITY, California, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Jacqueline Scott Corley, Magistrate Judge, Presiding

Argued and Submitted April 29, 2020

San Francisco, California

Filed October 27, 2020

Before: Ronald Lee Gilman,* Susan P. Graber, and

Daniel P. Collins, Circuit Judges.

Opinion by Judge Graber;

Partial Concurrence and Partial Dissent by Judge Gilman;

Partial Concurrence and Partial Dissent by Judge Collins

*

The Honorable Ronald Lee Gilman, United States Circuit Judge for

the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

2 CORTESLUNA V. LEON

SUMMARY**

Civil Rights

The panel affirmed in part and reversed in part the district

court’s summary judgment in favor of defendants, and

remanded, in an action brought pursuant to 42 U.S.C. § 1983

and state law alleging that police officers used excessive

force in effecting plaintiff’s arrest.

The panel affirmed the district court’s summary judgment

in favor of officer Leon. The panel held that even taking

plaintiff’s version of the facts as true, as was required at this

stage of the proceedings, a reasonable jury would not find a

Fourth Amendment violation because Leon’s acts were

objectively reasonable under the circumstances. The panel

first determined that the alleged crime was severe: a twelve-

year-old girl told a 911 dispatcher that plaintiff had

threatened his girlfriend and her daughters with a chainsaw.

The panel then determined that Officer Leon faced an

immediate threat. The panel noted that plaintiff had a knife

in the left pocket of his pants and had lowered his hands

toward his thighs—and thus toward the knife—after which

Leon fired a beanbag shotgun. Finally, the panel determined

that plaintiff’s hands remained near the knife in his pocket at

the time of the second beanbag shot.

The panel reversed the district court’s summary judgment

in favor of officer Rivas-Villegas. The panel first held that

there was a genuine issue of issue of fact as to whether the

**

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

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

CORTESLUNA V. LEON 3

force that Rivas-Villegas used when he kneeled on plaintiff’s

back when he was lying face down on the ground was

excessive. The panel then determined that controlling

precedent at the time put officers on notice that kneeling on

a prone and non-resisting person’s back so hard as to cause

injury was excessive.

The panel affirmed the district court’s summary judgment

in favor of Sergeant Kensic, determining that he lacked any

realistic opportunity to intercede to stop the excessive force.

Finally, because the panel reversed the grant of summary

judgment as to officer Rivas-Villegas, it remanded to the

district court for consideration of the other elements of

plaintiff’s claim against the City of Union City under Monell

v. Department of Social Services, 436 U.S. 658 (1978). For

the same reason, the panel reinstated plaintiff’s state-law

claims relating to Rivas-Villegas’ conduct.

Concurring in part and dissenting in part, Judge Gilman

fully concurred in the portions of the majority opinion

regarding the disposition as to Sergeant Kensic and Officer

Rivas-Villegas. He respectfully dissented from the portion

affirming the grant of summary judgment in favor of Officer

Manuel Leon, stating that he had no doubt that a jury could

reasonably find in plaintiff’s favor based on the facts that he

has presented.

Concurring in part and dissenting in part, Judge Collins

concurred in the majority opinion insofar as it partially

affirmed the district court’s judgment dismissing plaintiff’s

claims of excessive force in connection with his arrest.

However, he disagreed with the majority’s reversal of the

judgment in favor of Officer Rivas-Villegas and its partial

reversal of the judgment dismissing plaintiff’s claims against

4 CORTESLUNA V. LEON

the City. Judge Collins would affirm the judgment in its

entirety.

COUNSEL

Audrey Smith (argued) and Robert G. Howie, Howie & Smith

LLP, San Mateo, California, for Plaintiff-Appellant.

Lori A. Sebransky (argued) and Kevin P. Allen, Allen

Glaessner Hazelwood & Werth LLP, San Francisco,

California, for Defendants-Appellees.

CORTESLUNA V. LEON 5

OPINION

GRABER, Circuit Judge:

Plaintiff Ramon Cortesluna appeals from the summary

judgment entered in favor of Defendants Manuel Leon,

Daniel Rivas-Villegas, Robert Kensic, and the City of Union

City, California (“City”), in this action alleging that the

individual Defendants used excessive force in effecting

Plaintiff’s arrest. We affirm in part, reverse in part, and

remand.

I

FACTUAL AND PROCEDURAL BACKGROUND1

On the night of November 6, 2016, a 911 dispatcher

received a call in which a 12-year-old girl, I.R., reported that

she, her mother, and her 15-year-old sister were barricaded in

a room at their home because her mother’s boyfriend,

Plaintiff, had a chainsaw and was going to attack them. I.R.

said that Plaintiff was “always drinking,” had “anger issues,”

was “really mad,” and was using the chainsaw to “break

something in the house.” I.R. said that her mother was

holding the door closed to prevent Plaintiff from entering and

hurting them. I.R.’s sister then took the phone and confirmed

that Plaintiff was “right outside the bedroom door” and was

“sawing on their door knob.” A manual sawing sound was

audible to the 911 operator. I.R.’s sister described Plaintiff

and his clothing.

1

The underlying facts, except those regarding Plaintiff’s alleged

injuries, are undisputed.

6 CORTESLUNA V. LEON

A police dispatcher requested that officers respond. The

dispatcher reported that a 12-year-old girl said that her

mother’s boyfriend had a chainsaw and was trying to hurt her,

her sister, and her mother, who were together in a room. The

dispatcher also relayed the girl’s statement that the boyfriend

was “always drinking” and was using the chainsaw to break

something in the house. The dispatcher further reported that

there had been another potentially related 911 call in the area

and that, on that call, crying could be heard, but the caller

hung up without speaking.

Defendants Leon, Rivas-Villegas, and Kensic, along with

two other police officers, responded to the scene. When the

first three officers, including Rivas-Villegas and Kensic,

arrived, they observed Plaintiff’s home for several minutes

and saw that “[Plaintiff] is right here” in his window and

“doesn’t have anything in his hand” except, at some points,

a beer. The officers checked with dispatch to confirm that the

caller really reported a chainsaw. The dispatcher

acknowledged “we can’t hear [a chainsaw] over the phone”

but suggested that Plaintiff could be using the chainsaw

“manually.” One officer asked the 911 operator if the girl

and her family could leave the house. The operator replied

that they were unable to get out and that, during the call, she

heard sawing sounds in the background, as if the boyfriend

were trying to saw the bedroom door down.

Defendant Leon arrived at the scene later and might have

heard the radioed conversation with the dispatcher. When

Leon arrived, another officer told him, “so, he’s standing

right here drinking a beer. What do you think [about] just

giving him commands, having him come out, and do a

protective sweep?” The officers formulated a plan to

CORTESLUNA V. LEON 7

approach the house and “breach it with less lethal, if we need

to,” a reference to Leon’s beanbag shotgun.2

Rivas-Villegas knocked on the front door, stating,

“[P]olice department, come to the front door, Union City

police, come to the front door.” A few seconds later, Plaintiff

emerged through a sliding glass door near the front door,

holding a large metal object. Kensic said, “He’s coming . . .

he’s got a weapon in his hand” that looks “like a crowbar.”

Plaintiff was ordered to “drop it,” which he did. Meanwhile,

Leon said, “I’m going to hit him with less lethal,” that is, his

beanbag shotgun, and told another officer to get out of his

way.

Rivas-Villegas then ordered Plaintiff to “come out, put

your hands up, walk out towards me.” Plaintiff put his hands

up, as Rivas-Villegas told Plaintiff to “keep coming.”

As Plaintiff walked out of the house and toward the

officers, Rivas-Villegas said, “Stop. Get on your knees.”

Plaintiff stopped approximately ten to eleven feet from the

officers. Immediately after Rivas-Villegas’ order, Kensic

saw a knife in the front left pocket of Plaintiff’s sweatpants,

and he announced that Plaintiff had “a knife in his left pocket,

knife in his pocket.” Kensic then told Plaintiff, “[D]on’t,

don’t put your hands down” and “hands up.” After Kensic

shouted this last order, Plaintiff turned his head toward

Kensic, who was on Plaintiff’s left side, (and away from

2

A beanbag shotgun is a twelve-gauge shotgun loaded with beanbag

rounds, consisting of lead shot contained in a cloth sack. Deorle v.

Rutherford, 272 F.3d 1272, 1277 & n.8 (9th Cir. 2001). By design,

beanbag shotguns typically cause serious injury rather than death,

although death can result.

8 CORTESLUNA V. LEON

Leon, who was on Plaintiff’s right side) and simultaneously

lowered his head and his hands. Leon immediately shot

Plaintiff with a beanbag round from his shotgun and quickly

fired a second beanbag shot while Plaintiff’s hands were still

in a downward position near his belly, where the first shot hit.

The second shot hit him on the hip. Roughly two seconds

elapsed between Kensic’s “hands up” order and the second

shot.

After the second shot, Plaintiff again raised his hands over

his head. The officers ordered him to “[G]et down.” As

Plaintiff was lowering himself to the ground, Rivas-Villegas

used his foot to push Plaintiff to the ground. Rivas-Villegas

then pressed his knee into Plaintiff’s back and pulled

Plaintiff’s arms behind his back. Leon handcuffed Plaintiff’s

hands while Rivas-Villegas held his position. A few

moments later, Rivas-Villegas lifted Plaintiff up by his

handcuffed hands and moved him away from the doorway.

Other officers then entered the house, and the incident ended.

Plaintiff filed a complaint asserting (a) a claim under

42 U.S.C. § 1983 against Leon and Rivas-Villegas for

excessive force; (b) a § 1983 claim against Kensic for failing

to intervene and stop the excessive force; (c) a claim against

the City under Monell v. Department of Social Services,

436 U.S. 658 (1978), for the officers’ actions; and (d) several

state-law claims. Plaintiff claims that he suffers physical,

emotional, and economic injuries as a result of the officers’

conduct.

The district court granted summary judgment to the

individual Defendants on the federal claims. As to Leon and

Rivas-Villegas, the court ruled both that the force used was

objectively reasonable in the circumstances and that they

CORTESLUNA V. LEON 9

were entitled to qualified immunity. As to Kensic, the court

ruled that he had no reasonable opportunity to intervene and

therefore could not be liable. With summary judgment

granted in favor of the individual Defendants, the court

dismissed Plaintiff’s claim against the City. The court then

declined to exercise supplemental jurisdiction over Plaintiff’s

state-law claims and dismissed them without prejudice. This

timely appeal followed.

II

STANDARD OF REVIEW

We review de novo the propriety of summary judgment.

S.B. v. Cty. of San Diego, 864 F.3d 1010, 1013 (9th Cir.

2017). Summary judgment is appropriate only if there is “no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); Blight v. City of Manteca, 944 F.3d 1061, 1065–66 (9th

Cir. 2019).

We also review de novo the ruling that a police officer is

entitled to qualified immunity. S.B., 864 F.3d at 1013. If the

parties’ versions of the facts differ, we use the version most

favorable to Plaintiff, the non-moving party. Smith v. City of

Hemet, 394 F.3d 689, 693 (9th Cir. 2005) (en banc).

10 CORTESLUNA V. LEON

III

DISCUSSION

A. Principles of Qualified Immunity

Qualified immunity protects individual officers “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) (internal quotation marks

omitted). In evaluating an assertion of qualified immunity,

we undertake a two-part analysis, asking (1) “whether the

facts taken in the light most favorable to the plaintiff show

that the officer’s conduct violated a constitutional right,” and

(2) whether that right was “clearly established at the time of

the officer’s actions, such that any reasonably well-trained

officer would have known that his conduct was unlawful.”

Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020).

At step one, we determine whether a reasonable jury

could conclude that an officer’s use of force violated the

Fourth Amendment by “balancing ‘the nature and quality of

the intrusion on the individual’s Fourth Amendment interests

against the importance of the governmental interests alleged

to justify the intrusion.’” Id. (quoting Tennessee v. Garner,

471 U.S. 1, 8 (1985)). That analysis incorporates many

factors,3 but the most important factor is “whether the suspect

3

Those factors include the relationship between the need for the use

of force and the amount of force used; the extent of the plaintiff’s injuries;

any effort made by the officer to temper or to limit the amount of force;

the threat reasonably perceived by the officer; the severity of the

plaintiff’s crime; whether the plaintiff posed an immediate threat to the

CORTESLUNA V. LEON 11

posed an immediate threat to the safety of the officers or

others.” C.V. ex rel. Villegas v. City of Anaheim, 823 F.3d

1252, 1255 (9th Cir. 2016) (internal quotation marks

omitted). Although we take disputed facts in the light most

favorable to the plaintiff, we view the facts from “the

perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.” Graham v. Connor,

490 U.S. 386, 396 (1989). Because of the factual disputes

typical of excessive-force claims, we have recognized that

summary judgment at this step “should be granted sparingly.”

Smith, 394 F.3d at 701 (internal quotation marks omitted).

Nonetheless, summary judgment may be granted to an officer

if, “after resolving all factual disputes in favor of the

plaintiff,” the court concludes that the force used was

“objectively reasonable under the circumstances.” Scott v.

Henrich, 39 F.3d 912, 915 (9th Cir. 1994).

At step two, we determine whether the officer’s conduct

violated “clearly established” law. Plumhoff v. Rickard,

572 U.S. 765, 768 (2014). In doing so, we are mindful of the

Supreme Court’s repeated instruction “not to define clearly

established law at a high level of generality.” Ashcroft v. al-

Kidd, 563 U.S. 731, 742 (2011). Rather, we must decide

“whether the violative nature of particular conduct [was]

clearly established.” Id. That is, existing precedent must

already have placed the constitutional or statutory question

beyond debate. Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018) (per curiam). We have interpreted those instructions

to mean that liability does not attach unless a case exists in

which a police officer acting under similar circumstances was

safety of the officers or others; and whether the plaintiff actively resisted

arrest or attempted to flee. Kingsley v. Hendrickson, 576 U.S. 389, 397

(2015); Orn, 949 F.3d at 1174.

12 CORTESLUNA V. LEON

held to have violated the Fourth Amendment. Emmons v.

City of Escondido, 921 F.3d 1172, 1174 (9th Cir. 2019) (per

curiam).4

B. Officer Leon

Plaintiff asserts that Leon violated the Fourth Amendment

by shooting him twice with a beanbag shotgun. Even taking

Plaintiff’s version of the facts as true, as we must at this

stage, a reasonable jury would not find a Fourth Amendment

violation, because Leon’s acts were objectively reasonable in

the circumstances. Therefore, we affirm the district court’s

grant of summary judgment to Leon.

The reasonableness of an officer’s use of force

“traditionally is a question of fact for the jury.” Scott,

39 F.3d at 915. Nevertheless, we may depart from that

traditional rule if any reasonable juror would find that the use

of force was “objectively reasonable under the

circumstances.” Id.

As to the personal intrusion, because beanbag rounds are

“potentially lethal at thirty feet and could be lethal at

distances up to fifty feet,” they are “not to be deployed

lightly.” Deorle, 272 F.3d at 1279–80. Their use “is

permissible only when a strong governmental interest

compels the employment of such force.” Id. at 1280. In

4

An exception exists for “the rare ‘obvious case,’ where the

unlawfulness of the officer’s conduct is sufficiently clear even though

existing precedent does not address similar circumstances.” District of

Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (quoting Brosseau v.

Haugen, 543 U.S. 194, 199 (2004) (per curiam)). That exception does not

apply here.

CORTESLUNA V. LEON 13

assessing the governmental interest, we consider

“(1) ‘whether the suspect poses an immediate threat to the

safety of the officers or others,’ (2) ‘the severity of the crime

at issue,’ and (3) ‘whether he is actively resisting arrest or

attempting to evade arrest by flight.’” Glenn v. Washington

Cty., 673 F.3d 864, 872 (9th Cir. 2011) (quoting Graham,

490 U.S. at 396)).

Here, first, the alleged crime was severe: a twelve-year-

old girl told a 911 dispatcher that Plaintiff had threatened his

girlfriend and her daughters with a chainsaw. The threat was

just as great even if Plaintiff had been using the saw

manually.

Leon faced an immediate threat, the second and most

important factor. C.V. ex rel. Villegas, 823 F.3d at 1255.

Although Plaintiff did not have a chainsaw when the officers

arrived, Plaintiff emerged from the house holding a large

metal object. Plaintiff dropped the object when ordered to do

so, but he still had a knife in the left pocket of his pants.

Leon, who was standing diagonally to Plaintiff’s right, could

not see the knife from his position. Kensic announced that

Plaintiff had a knife and ordered Plaintiff to put his hands up.

Plaintiff instead lowered his hands toward his thighs—and

thus toward the knife—after which Leon fired the beanbag

shotgun.

The third factor pertains to Plaintiff’s resistance. Before

the first shot was fired, Plaintiff put his hands down, and

closer to the knife in his pocket, after police repeatedly told

him to put his hands up. Plaintiff’s hands remained near the

knife in his pocket at the time of the second shot.

14 CORTESLUNA V. LEON

In summary, even viewing the facts in Plaintiff’s favor,

the force that Leon applied was objectively reasonable in the

circumstances, considering both the level of intrusion and the

strength of the government’s interest. It bears repeating that

our inquiry is an objective one. Despite our colleague’s

suggestion, Judge Gilman’s dissent at 22, we cannot consider

that Leon announced that he was “going to hit [Plaintiff] with

less lethal” twenty seconds before pulling the trigger. As the

Supreme Court has repeatedly stressed, we must assess

officers’ use of force “without regard to their underlying

intent.” Graham, 490 U.S. at 397. Accordingly, we affirm

the summary judgment entered in favor of Leon.

C. Officer Rivas-Villegas

Plaintiff alleges that Rivas-Villegas violated his Fourth

Amendment right to be free from excessive force by leaning

too hard on his back, causing injury. Taking Plaintiff’s

version of the facts as true, we agree. Because we also hold

that controlling precedent put officers on notice that such

force is excessive, Rivas-Villegas is not entitled to qualified

immunity. We therefore reverse and remand for a jury to

decide whether Rivas-Villegas used excessive force and, if

so, to assess damages.

1. Rivas-Villegas’ use of force was excessive.

Although we have held that Leon did not violate

Plaintiff’s Fourth Amendment rights by using excessive

force, the objective situation altered dramatically after Leon

shot Plaintiff twice with beanbag rounds. By the time Rivas-

Villegas put pressure on Plaintiff’s back, Plaintiff no longer

posed a risk. He was lying face down on the ground,

experiencing visible pain from having been shot by the two

CORTESLUNA V. LEON 15

beanbag rounds, and not resisting. Although the knife

remained in Plaintiff’s pocket, Rivas-Villegas—unlike

Leon—could have seen that the knife was protruding blade-

up such that it would not have been possible for Plaintiff to

grab it and attack anyone. Thus, the governmental interest

that we must consider had decreased greatly from when Leon

fired on Plaintiff.

And although a knee on the back is a lesser personal

intrusion than beanbag rounds, it still constitutes a

meaningful personal intrusion when it causes injury.

LaLonde v. County of Riverside, 204 F.3d 947, 952 (9th Cir.

2000). In evaluating reasonableness, we may consider the

presence and severity of a plaintiff’s injuries, but injuries are

not required. Felarca v. Birgeneau, 891 F.3d 809, 817 (9th

Cir. 2018). This court long ago recognized that a plaintiff

asserting a claim of excessive force “is not required to show

a significant injury.” Wilks v. Reyes, 5 F.3d 412, 416 (9th

Cir. 1993), as amended on denial of reh’g (Oct. 28, 1993);

see also Morales v. Fry, 873 F.3d 817, 820–21 (9th Cir.

2017) (discussing this circuit’s requirement under Floyd v.

Laws, 929 F.2d 1390, 1402–03 (9th Cir. 1991), that a court

award nominal damages where a jury finds for a plaintiff on

an excessive-force claim but awards no damages). If the use

of force is excessive and there is a case on point that alerted

the officer to the unconstitutionality of his conduct (an issue

to which we will turn next), there is no added requirement for

a specific level of damage or injury. Here, Plaintiff alleges

that he now suffers ongoing neck and back pain, headaches,

and emotional distress on account of Rivas-Villegas’ actions.

That is sufficient to create a genuine dispute of material fact

that requires resolution by a jury. The credibility and weight

16 CORTESLUNA V. LEON

of Plaintiff’s evidence are for the jury, not us, to decide.5

Because we must view all the evidence in Plaintiff’s favor,

Rivas-Villegas used excessive force.

2. Rivas-Villegas violated clearly established law.

At step two, Rivas-Villegas is not entitled to qualified

immunity because existing precedent put him on notice that

his conduct constituted excessive force. In LaLonde, an

officer grabbed the plaintiff, knocked him to the ground,

straddled him, and handcuffed him. 204 F.3d at 952.

Allegedly, another officer then “forcefully put his knee into

LaLonde’s back, causing him significant pain” and a

lingering back injury. Id. We reversed the summary

judgment entered in favor of the officers because the

allegations, if true, “constitute[d] a clear violation of

[LaLonde’s] Fourth Amendment rights.” Id. at 962.6

5

Judge Collins’ dissent errs by “disregard[ing]” Rivas-Villegas’ brief

use of his foot to press Plaintiff to the ground. Judge Collins’ Dissent

at 28 n.2. The fact that Plaintiff did not feel the foot on his back does not

make the push irrelevant, because that fact does not negate the possibility

that the push contributed to Plaintiff’s alleged injuries. Once again, the

significance of the push is for the jury, and not us, to decide. Nor is it

particularly surprising that Plaintiff did not feel a foot on his body after he

had absorbed two rounds from a beanbag shotgun. Cf. Buck v. City of

Albuquerque, 549 F.3d 1269, 1289 (10th Cir. 2008) (“Because she was

focused on regaining control of her breathing, [the plaintiff] does not

recall feeling the impact of the pepper ball rounds on her body . . . .”).

6

Although LaLonde’s discussion of the test for qualified immunity

may be outdated, it nonetheless establishes that certain uses of force,

including the use of force similar to that employed in this case, violate the

Fourth Amendment.

CORTESLUNA V. LEON 17

Judge Collins’ dissent asserts that the facts here differ

from those in LaLonde so much that a reasonable officer

would not have been put on notice that pushing his knee into

the back of a prone, unresisting, injured person violates the

Fourth Amendment. Judge Collins’ Dissent at 35–37. We

disagree. Although the officers here responded to a more

volatile situation than did the officers in LaLonde, the context

was substantially similar. Indeed, rarely is a precedent as

precisely aligned with the relevant actions. Both LaLonde

and this case involve suspects who were lying face-down on

the ground and were not resisting either physically or

verbally, on whose back the defendant officer leaned with a

knee, causing allegedly significant injury.

In LaLonde, officers responded to reported yelling inside

a residence. 204 F.3d at 950–51. And much like here, the

officers were warned that the plaintiff possessed a deadly

weapon—a rifle in that case. Id. at 951. The officers also

were told that they “should be careful because [the plaintiff]

might be willing to use [that weapon].” Id. And much like

here, the plaintiff at first declined to comply with police

requests. Id. at 951–52.

The similarities increase at what Graham teaches to be

the most critical moment: when excessive force was

employed. 490 U.S. at 396. In LaLonde, an officer

“forcefully put his knee into [the plaintiff’s] back” after the

plaintiff had been sprayed with pepper spray and had stopped

resisting arrest. 204 F.3d at 952, 959 n.17. Here, at the time

in question, Plaintiff was prone, similarly was not resisting

arrest, and similarly was visibly injured by a prior use of

force. If anything, Plaintiff was more subdued—and thus less

of a threat—after having been shot twice by a beanbag

shotgun rather than having been pepper-sprayed. As in

18 CORTESLUNA V. LEON

LaLonde, Rivas-Villegas “deliberately dug his knee into

[Plaintiff’s] back” with enough force to cause injury.7 Id.

at 959 n.17. The court concluded in LaLonde that the officers

were not entitled to qualified immunity. Id. at 962. Officers

in Rivas-Villegas’ position were thus on notice that their

substantially similar conduct is unconstitutional.

Judge Collins’ dissent seems to argue that, because

Plaintiff was accused of a serious crime and initially appeared

noncompliant, police could use force throughout the

encounter without violating the Fourth Amendment. Judge

Collins’ Dissent at 29–30. But just as circumstances can

escalate rapidly, justifying “split-second judgments” to use

force that might have been excessive a moment earlier,

Graham, 490 U.S. at 397, circumstances can de-escalate

rapidly. Logic thus dictates that the reverse is true, too: a use

of force that may have been reasonable moments earlier can

become excessive moments later.

Defendants also argue that the method they used to

handcuff Plaintiff is a standard procedure, designed to

minimize injuries and confrontations. But the fact that a

particular practice is standard, or that it usually results in no

harm, does not insulate its use in every case. For example,

we have repeatedly held that “tight handcuffing can constitute

excessive force,” even though handcuffing is a generally

standard and appropriate practice. LaLonde, 204 F.3d at 960

7

Plaintiff’s arrest was captured on videotape. The videotape shows

that Rivas-Villegas intentionally dug his knee into Plaintiff’s back.

Although the videotape does not establish how strenuously Rivas-Villegas

dug his knee into Plaintiff’s back, that factual dispute is for the jury to

consider. And the existence and degree of any resultant injury are for the

jury, as fact-finder, to determine.

CORTESLUNA V. LEON 19

(citing Palmer v. Sanderson, 9 F.3d 1433 (9th Cir. 1993);

Hansen v. Black, 885 F.2d 642 (9th Cir. 1989)). And the

amount of force that may be reasonable when applied to the

back of a large, fit individual to effect an arrest may be

excessive as applied to a small, frail individual. The facts of

each case matter.

For similar reasons, the dissent’s fear that our holding

likely will “eliminate the use of a knee to protectively hold

down a non-resisting suspect while handcuffing him,” Judge

Collins’ Dissent at 36, is unwarranted. We hold only, as we

have before, that police may not kneel on a prone and non-

resisting person’s back so hard as to cause injury. LaLonde,

204 F.3d at 959. Just as our tight-handcuff cases have not

eliminated handcuffs, our holding today should not infringe

on an officer’s ability to secure a compliant and prone suspect

without injury.

We conclude that there is a genuine issue of fact as to

whether the force that Rivas-Villegas used was excessive and

that, if Plaintiff’s allegations are true, precedent informed

Rivas-Villegas that the force was excessive. We therefore

reverse the judgment in favor of Rivas-Villegas and remand

for further proceedings.

D. Officer Kensic

Plaintiff asserts that Kensic failed to intervene to prevent

the excessive force employed by Leon and Rivas-Villegas.

But there is no evidence that Kensic knew what the other

defendants would do, and the events unfolded very

rapidly—in a matter of seconds. Kensic therefore lacked any

realistic opportunity to intercede. See Cunningham v. Gates,

229 F.3d 1271, 1289–90 (9th Cir. 2000) (holding that officers

20 CORTESLUNA V. LEON

can be held liable for failing to intervene only if they had a

realistic opportunity to do so). We therefore affirm the

judgment in favor of Kensic.

E. Monell and State-Law Claims

Plaintiff asserts that, under Monell, the City is liable for

the officers’ constitutional violations. The district court

dismissed Plaintiff’s Monell claim because it had granted

summary judgment to the individual Defendants. Because we

reverse the grant of summary judgment as to Rivas-Villegas,

we remand to the district court for consideration of the other

elements of Plaintiff’s Monell claim and whether that claim

“can properly be resolved on summary judgment even if the

constitutional violation question cannot.” Glenn, 673 F.3d

at 880. For the same reason, we reinstate Plaintiff’s state-law

claims relating to Rivas-Villegas’ conduct. See Wall v. Cty.

of Orange, 364 F.3d 1107, 1112 (9th Cir. 2004) (reinstating

state-law claims in similar circumstances). On remand, the

district court can reconsider whether to exercise jurisdiction

over those claims.

AFFIRMED as to the federal claims against Defendant

Leon and Defendant Kensic; REVERSED and

REMANDED for further proceedings as to all other claims.

The parties shall bear their own costs on appeal.

GILMAN, Circuit Judge, concurring in part and dissenting in

part:

I fully concur in the portions of the majority opinion

regarding the disposition as to Sergeant Robert Kensic and

CORTESLUNA V. LEON 21

Officer Daniel Rivas-Villegas. On the other hand, I

respectfully dissent from the portion affirming the grant of

summary judgment in favor of Officer Manuel Leon. We are

not being asked to decide whether Cortesluna will prevail at

trial on his excessive-force claim against this officer. The

question before us is simply whether a jury could reasonably

find in Cortesluna’s favor based on the facts that he has

presented. I have no doubt that it could.

I

The key question for a jury to decide is whether a

reasonable officer would have felt immediately threatened by

Cortesluna at the time that Officer Leon shot Cortesluna with

two rounds from the officer’s beanbag shotgun. See C.V. ex

rel. Villegas v. City of Anaheim, 823 F.3d 1252, 1255 (9th

Cir. 2016) (holding that the most important question is

“whether the suspect posed an immediate threat to the safety

of the officers or others” (internal citation and quotation

marks omitted)). The two photos attached to this dissent

clearly support the proposition that Cortesluna posed no

immediate threat to any of the officers present. In both

photos, which are exhibits from Cortesluna’s home-security

camera, Cortesluna is shown standing still with his head and

hands down. Photo 1 shows Officer Leon firing the first

beanbag round at Cortesluna from a distance of

approximately 10 feet. Roughly a second later, Photo 2

shows the second beanbag round being fired.

Even with a knife shown protruding blade up in

Cortesluna’s left front pocket, there is no indication that he

was in the act of reaching for it when the rounds were fired.

And with the knife blade up rather than down, there was no

way that he could have quickly taken it from his pocket to

22 CORTESLUNA V. LEON

threaten the officers. This is especially so when one takes into

account that five police officers were present, all with their

guns trained on Cortesluna. I frankly fail to see how anyone

looking at these photos would deduce that Cortesluna was an

immediate threat to any of the officers under the

circumstances. A jury could instead easily find that Officer

Leon was a trigger-happy member of the police force who

literally “jumped the gun” in a display of excessive force.

This is amply shown by Officer Leon saying “I’m going to hit

him with less lethal” (the beanbag shotgun) even before

Cortesluna had emerged from the house. Maj. Op. at 7.

The majority, moreover, appears to acknowledge the

strength of Cortesluna’s claim against Officer Leon despite

their unwillingness to let a jury decide the issue. In denying

qualified immunity to Officer Rivas-Villegas, for example,

the majority acknowledges that “the knife was protruding

blade-up such that it would not have been possible for

Plaintiff to grab it and attack anyone.” Maj. Op. at 15. Yet

Officer Leon proceeded to shoot Cortesluna twice with the

beanbag rounds without making any effort whatsoever to

ascertain that Cortesluna’s possession of the knife posed no

immediate threat.

The majority also recognizes the teaching of Graham v.

Connor, 490 U.S. 386, 396 (1989), that the most critical

moment is “when excessive force was employed.” Maj. Op.

at 17. Yet Cortesluna was totally passive at the time he was

shot, despite his earlier aggressive actions as reported to the

police dispatcher. And even well before the shooting, when

the officers first saw Cortesluna, he was observed doing

nothing more that standing in the house “drinking a beer.”

Maj. Op. at 6.

CORTESLUNA V. LEON 23

Finally, the majority acknowledges the need to consider

the various factors set forth in Kingsley v. Hendrickson,

576 U.S. 389, 397 (2015), when analyzing an excessive-force

claim, Maj. Op. at 10, n. 3, but fails to give them appropriate

weight. The application of these factors—including the

serious harm that can be caused by a beanbag shotgun, the

lack of any effort by Officer Leon to warn Cortesluna, and the

absence of any resistance or attempt to flee by

Cortesluna—all tilt in his favor. In sum, I believe that there

is more than sufficient evidence to raise a genuine dispute of

material fact regarding the excessive-force claim against

Officer Leon.

II

The use of excessive force by a police officer, of course,

is in violation of the victim’s constitutional rights. Gravelet-

Blondin v. Shelton, 728 F.3d 1086, 1090 (9th Cir. 2013). And

whether the force used was excessive is generally a question

for the jury. Smith v. City of Hemet, 394 F.3d 689, 701 (9th

Cir. 2005) (en banc). This brings us to the second issue of

whether Cortesluna’s right not to be shot was “clearly

established at the time of [Officer Leon’s] actions, such that

any reasonably well-trained officer would have known that

his conduct was unlawful.” See Orn v. City of Tacoma,

949 F.3d 1167, 1174 (9th Cir. 2020).

Existing precedent does not require a prior case with the

exact same facts. Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018) (per curiam) (“[T]his Court’s caselaw does not require

a case directly on point for a right to be clearly established[.]”

(quoting White v. Pauly, 137 S. Ct. 548, 551 (2017))). The

law instead requires “[p]recedent involving similar facts.”

See id. at 1153 (emphasis added). And here the existing

24 CORTESLUNA V. LEON

precedent is close enough to have put Officer Leon on notice

that his actions constituted excessive force.

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

for example, this court held that shooting a beanbag round at

an emotionally disturbed individual who was walking directly

towards an officer was excessive. Id. at 1282. The court

emphasized that its “conclusion [wa]s strongly supported by

[the] failure to give Deorle any warning that he would be shot

if he approached any closer.” Id. So too here: Officer Leon

gave Cortesluna no warning that he would be shot if he did

not put his hands up. And Deorle arguably presented a

greater threat to the officers than did Cortesluna because

Deorle had been “brandishing a hatchet at a police officer,”

“remained agitated and continued to roam on or about the

property,” and was carrying “an unloaded plastic crossbow in

one hand and what may have been a can or a bottle of lighter

fluid in the other.” Id. at 1276–77. Although Deorle dropped

the hatchet and crossbow when instructed to do so, he had

been walking directly towards the officers when he was shot.

Id. The court in Deorle made clear that “[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. at 1281.

Other precedent exists regarding the concept of passive

resistance. See Emmons v. City of Escondido, 921 F.3d 1172,

1175 (9th Cir. 2019) (“The right to be free from the

application of non-trivial force for engaging in mere passive

resistance was clearly established prior to 2008.” (quoting

Gravelet-Blondin, 728 F.3d at 1093)). In Gravelet-Blondin,

the police tased a suspect who refused requests to show his

hands. 728 F.3d at 1089. Although the police had been

warned that the suspect “owned a gun and would have it with

CORTESLUNA V. LEON 25

him,” id., this court nonetheless concluded that “Blondin

engaged in no behavior that could have been perceived . . . as

threatening or resisting,” id. at 1094. His refusal to obey

commands instead constituted “mere passive resistance,” id.

1093, and, “[a]s a result, the use of non-trivial force of any

kind was unreasonable,” id. at 1094.

So even if Cortesluna was disobeying Sergeant Kensic’s

instruction to put his hands up (probably because Cortesluna

was understandably confused by Officer Leon’s immediately

preceding instruction to get down on the ground), a jury could

find that this was at most passive resistance. The attached

photos support such a finding, where Cortesluna is shown

standing still, head down, and approximately 10 feet away

from the five assembled officers when the first beanbag round

was fired. See Photo 1.

Officer Leon’s firing of the second round (Photo 2)

strikes me as even less justified. At that point Cortesluna’s

hands are moving away from his sides and thus further from

the knife in his left front pocket. In my opinion, this evidence

is more than sufficient to place this case in the category

acknowledged by the majority as an obvious case “where the

unlawfulness of the officer’s conduct is sufficiently clear

even though existing precedent does not address similar

circumstances.” Maj. Op. 12, n. 4 (quoting District of

Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)).

For all of the above reasons, I would reverse the grant of

summary judgment in favor of Officer Leon and remand the

case for further proceedings as to all of the defendants other

than Sergeant Kensic.

26 CORTESLUNA V. LEON

APPENDIX

Photo 1

Photo 2

CORTESLUNA V. LEON 27

COLLINS, Circuit Judge, concurring in part and dissenting

in part:

I concur in the majority opinion insofar as it partially

affirms the district court’s judgment dismissing Ramon

Cortesluna’s claims of excessive force in connection with his

arrest. However, I disagree with the majority’s reversal of the

judgment in favor of Officer Daniel Rivas-Villegas and its

partial reversal of the judgment dismissing Cortesluna’s

claims against the City of Union City. I would affirm the

judgment in its entirety, and I therefore respectfully dissent

from sections III(C) and III(E) of the majority’s opinion.

I

The arrest in this case was videotaped by Cortesluna’s

home-security camera. Where, as here, “[t]here are no

allegations or indications that this videotape was doctored or

altered in any way, nor any contention that what it depicts

differs from what actually happened,” we should review the

summary judgment order by “view[ing] the facts in the light

depicted by the videotape.” Scott v. Harris, 550 U.S. 372,

378, 380–81 (2007).1 That videotape shows that, after being

hit by the beanbag rounds, Cortesluna turned and began to lie

face-down on the ground. As Cortesluna was doing so,

Rivas-Villegas approached and briefly placed his foot on

Cortesluna’s back in order to more quickly get him to lie flat

1

At my request, the Clerk of the Court has posted the

videotape on the Court’s public website at this link:

https://cdn.ca9.uscourts.gov/datastore/opinions/media/19-15105-

Cortesluna-Videotape.mp4

28 CORTESLUNA V. LEON

on the ground.2 Rivas-Villegas then straddled Cortesluna,

with his right foot on Cortesluna’s right side and his left leg

bent at the knee on Cortesluna’s left side, where Cortesluna

had a knife in his pocket. Both Rivas-Villegas and

Cortesluna testified that the knee was on Cortesluna’s back;

Rivas-Villegas said that he did that in order to prevent

Cortesluna from trying to get back up while he was being

handcuffed. In that limited sense, it can perhaps be said, as

the majority tendentiously puts it, that Rivas-Villegas’s

holding Cortesluna down with his knee amounted to having

“dug his knee into Plaintiff’s back.” See Maj. Opin. at 18 n.7.

But the videotape also confirms that, to the extent that Rivas-

Villegas placed his knee on Cortesluna’s back, Rivas-Villegas

did not jump on his back or otherwise “drop” his knee into his

back. Rivas-Villegas was in this position for no more than

eight seconds before standing up, at which time another

officer handcuffed Cortesluna’s hands.

Having viewed this videotape multiple times, I do not

think that the force Rivas-Villegas used could reasonably be

described as excessive. But even if I did, I think it is clear

that Rivas-Villegas would be entitled to qualified immunity.

2

For excessive force purposes, we may disregard this brief placement

of Rivas-Villegas’s foot, because Cortesluna testified at his deposition that

he did not even recall feeling the officer’s foot, but only his knee. The

majority contends that there is a triable issue as to whether “the push

contributed to Plaintiff’s alleged injuries,” see Maj. Opin. at 16 n.5, but

that misses the point. The push is only relevant if it constituted excessive

force in violation of constitutional standards, and a push that was so minor

that Cortesluna does not even recall feeling it cannot reasonably be viewed

as “excessive.” See Eastman Kodak Co. v. Image Tech. Servs., Inc.,

504 U.S. 451, 468 (1992) (“the nonmoving party’s inferences [must] be

reasonable in order to reach the jury”).

CORTESLUNA V. LEON 29

A

The test for determining the reasonableness of the force

used to effectuate an arrest “requires careful attention to the

facts and circumstances of each particular case, including 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.” Graham v. Connor, 490 U.S. 386, 396

(1989). The obvious severity of the suspected crime in this

case weighs in favor of affirmatively using protective force

in arresting Cortesluna, but the majority concludes that the

circumstances concerning the other two principal Graham

factors “altered dramatically” in the mere eight seconds after

Cortesluna was shot with the beanbag rounds. See Maj. Opin.

at 14. I disagree.

The suggestion that Cortesluna suddenly “no longer posed

a risk” at the moment the beanbag shots were fired, see Maj.

Opin. at 14–15, is factually unreasonable. Cortesluna was

carrying a pick tool when he first approached the officers and,

after putting that down, he disobeyed the officers’

instructions to keep his hands up and instead lowered his

hands to where a long knife was protruding from his pocket.

See id. at 7–8. After being shot with the beanbag rounds and

starting to get on the ground, Cortesluna still had the knife in

his left pocket—i.e., on the side where Rivas-Villegas placed

his knee. Using a knee on that side to ensure that Cortesluna

stayed down and did not make a motion toward the knife was

eminently reasonable in light of what the officers knew about

the situation. Kingsley v. Hendrickson, 576 U.S. 389, 399

(2015) (“we have stressed that a court must judge the

reasonableness of the force used from the perspective and

with the knowledge of the defendant officer”). The majority

30 CORTESLUNA V. LEON

erroneously discounts the threat presented by the knife,

asserting that, because it was “protruding blade-up” in

Cortesluna’s pocket, “it would not have been possible for

Plaintiff to grab it and attack anyone.” See Maj. Opin. at 15.

The majority overlooks the fact that, as the videotape makes

clear, the knife was loosely sitting in the large pocket of

Cortesluna’s baggy pajama bottoms—meaning that

Cortesluna could have fit his hand into the pocket to reach the

handle.

The majority’s reasoning is also legally flawed, because

it ignores the Supreme Court’s pointed admonition to this

court not to confidently downplay, from the comfort of our

chambers, the dangers that officers face in making arrests:

[T]he panel majority did not heed the District

Court’s wise admonition that judges should be

cautious about second-guessing a police

officer’s assessment, made on the scene, of

the danger presented by a particular situation.

With the benefit of hindsight and calm

deliberation, the panel majority concluded

that it was unreasonable for [the officers] to

fear that violence was imminent. But we have

instructed that reasonableness “must be

judged from the perspective of a reasonable

officer on the scene, rather than with the

20/20 vision of hindsight” and that “[t]he

calculus of reasonableness must embody

allowance for the fact that police officers are

often forced to make split-second

judgments—in circumstances that are tense,

uncertain, and rapidly evolving.”

CORTESLUNA V. LEON 31

Ryburn v. Huff, 565 U.S. 469, 477 (2012) (citation omitted).

And for the same reason, the majority improperly discounts

the need for precautionary measures (such as holding the

suspect down during handcuffing) in order to address the risk

that a suspect who is not then actively resisting may decide to

start resisting before the handcuffs are actually placed on

him. It is quite wrong for the “panel majority—far removed

from the scene and with the opportunity to dissect the

elements of the situation—confidently [to] conclude[] that the

officers really had no reason to fear for their safety or that of

anyone else.” Id. at 475.

The majority also relies on the fact that Cortesluna claims

to be experiencing ongoing pain as a result of Rivas-

Villegas’s eight-second use of his knee to hold Cortesluna

down during his arrest. See Maj. Opin. at 15. I agree that, on

summary judgment, we have to take as true Cortesluna’s

statements that he has experienced ongoing pain in his back

and neck ever since his arrest, but I disagree with the

suggestion that, on this record, that contention is sufficient to

raise a reasonable inference of excessive force.

Although “injuries are not a precondition” to an excessive

force claim, we have sensibly recognized that the extent and

nature of any injuries that do or do not result from a given use

of force may reveal something about the extent of the force

used. Felarca v. Birgeneau, 891 F.3d 809, 817 (9th Cir.

2018). For example, where the force used produced “a

broken vertebra which caused [the arrestee] both pain and

immobility,” a reasonable trier of fact could conclude that the

force used was “severe.” Santis v. Gates, 287 F.3d 846,

853–54 (9th Cir. 2002). Conversely, “[w]e may infer from

the minor nature of a plaintiff’s injuries that the force applied

was minimal.” Felarca, 891 F.3d at 817. However, we must

32 CORTESLUNA V. LEON

always keep in mind that, because the excessive force inquiry

turns on what the officer knew at the time, see Kingsley,

576 U.S. at 399, any later-occurring claimed injuries are only

relevant to the extent that their severity suggests an objective

level of force that a reasonable officer on the scene would

have recognized at the time to be significant and potentially

injurious. Under these standards, Cortesluna’s claim of

subjective pain is not enough to defeat summary judgment.

Here, the videotape confirms that nothing about Rivas-

Villegas’s brief use of his knee involved an objective level of

force that was likely to produce serious injury. And in

contrast to Santos, Cortesluna has not submitted any evidence

in opposition to summary judgment (such as medical records)

that would show that the claimed subjective pain has its

origin in an underlying physical injury of a type that would

support an inference that the force that produced it was

excessive.3 See Arpin v. Santa Clara Valley Transp. Agency,

261 F.3d 912, 922 (9th Cir. 2001) (affirming summary

judgment on excessive force claim and noting that “Arpin’s

claim of injury is equally unsupported as she does not provide

any medical records to support her claim that she suffered

injury as a result of being handcuffed”); see also Foster v.

Metropolitan Airports Comm’n, 914 F.2d 1076, 1082 (8th

Cir. 1990) (arrestee’s claims that “he has suffered nerve

damage in his arms as a result of being in handcuffs” and

experiences “pain” as a consequence were insufficient to

3

In connection with their reply in support of their summary judgment

motion, Defendants submitted summaries of the medical testimony that

Plaintiffs expected to present at a trial, and those summaries focus largely

on hip and leg injuries from the incident—i.e., injuries attributable to the

bean-bag shots. In all events, those summaries do not specifically tie any

injury to the knee-press.

CORTESLUNA V. LEON 33

defeat summary judgment on excessive force claim where

arrestee “presents no medical records indicating he suffered

any long-term injury as a result of the handcuffs”). On this

record, and given these objective circumstances, the mere fact

that Cortesluna subsequently claimed ongoing subjective pain

is not enough, by itself, to raise a reasonable inference that an

objectively unreasonable level of force was used at the time

of the arrest. But under the majority’s opinion, it is now

apparently the law in the Ninth Circuit that all an arrestee has

to do to get a jury trial on an excessive force

claim—including defeating qualified immunity—is to assert

that the arrest resulted in ongoing subjective pain. For the

reasons I have explained, that is not correct.

I would hold that, even construing the record evidence in

the light most favorable to Cortesluna, no reasonable jury

could find that Rivas-Villegas used excessive force.4

4

The majority properly does not rely on Cortesluna’s further claim

that Rivas-Villegas should not have lifted him from the ground by

grabbing his handcuffs. As the district court noted, Cortesluna does not

claim that his “handcuffing and movement” caused any injury, see

Cortesluna v. Leon, 2018 WL 6727824, at *11 (N.D. Cal. Dec. 21, 2018),

and on this record, no reasonable jury could find that this method of lifting

Cortesluna amounted to excessive force. The only federal case Cortesluna

cites to support his argument on this score is Wall v. County of Orange,

364 F.3d 1107 (9th Cir. 2004). But in Wall, the arresting officer suddenly

twisted the arm of a compliant, unarmed arrestee, slammed him face-first

into a nearby vehicle, put “extremely tight” handcuffs on him, and then

threw him by his handcuffed arms head-first into a patrol car. Id.

at 1109–10, 1112. Of course, nothing similar is involved here. Moreover,

in Wall, our finding of excessive force rested on the officer’s overly tight

handcuffing, and not on the officer’s movement of the suspect by his

handcuffs or handcuffed hands. See id. at 1112.

34 CORTESLUNA V. LEON

B

Alternatively, I conclude that, at a minimum, Rivas-

Villegas’s actions did not violate clearly established law and

that he therefore is entitled to qualified immunity. See

Pearson v. Callahan, 555 U.S. 223, 236 (2009). The majority

errs in holding otherwise.

Officers are entitled to qualified immunity in § 1983

actions unless they violate “clearly established” rights.

Reichle v. Howards, 566 U.S. 658, 664 (2012). “‘Clearly

established’ means that, at the time of the officer’s conduct,

the law was sufficiently clear that every reasonable official

would understand that what he is doing is unlawful.” District

of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (emphasis

added) (citations and internal quotation marks omitted).

Moreover, in explaining how to determine whether the law

was sufficiently clear for purposes of qualified immunity, the

Supreme Court has “repeatedly told courts—and the Ninth

Circuit in particular—not to define clearly established law at

a high level of generality.” Kisela v. Hughes, 138 S. Ct.

1148, 1152 (2018) (citations and internal quotation marks

omitted); see also City of Escondido v. Emmons, 139 S. Ct.

500, 503 (2019); City & County of San Francisco v. Sheehan,

575 U.S. 600, 613 (2015); Ashcroft v. al-Kidd, 563 U.S. 731,

742 (2011). This obligation to define clearly established law

with specificity “is particularly important in excessive force

cases.” Emmons, 139 S. Ct. at 503. As the Supreme Court

has explained:

“Specificity is especially important in the

Fourth Amendment context, where the Court

has recognized that it is sometimes difficult

for an officer to determine how the relevant

CORTESLUNA V. LEON 35

legal doctrine, here excessive force, will apply

to the factual situation the officer confronts.

Use of excessive force is an area of the law in

which the result depends very much on the

facts of each case, and thus police officers are

entitled to qualified immunity unless existing

precedent squarely governs the specific facts

at issue.”

Emmons, 139 S. Ct. at 503 (emphasis added) (quoting Kisela,

138 S. Ct. at 1153).

In concluding that “existing precedent squarely governs

the specific facts” of this case, see id., the majority relies

solely on our decision in LaLonde v. County of Riverside,

204 F.3d 947 (9th Cir. 2000). See Maj. Opin. at 16–18. In

my view, the facts of LaLonde are materially distinguishable

from this case and are therefore insufficient to have made

clear to “every reasonable” officer that the force Rivas-

Villegas used here was excessive. Wesby, 138 S. Ct. at 589.

In LaLonde, while responding to a noise complaint, a

police officer first tried to pin down an unarmed LaLonde and

then sprayed him in the face with pepper spray. 204 F.3d

at 952. After that, a different officer, while handcuffing

LaLonde, “deliberately dug his knee into LaLonde’s back

with a force that caused him long-term if not permanent back

injury.” Id. at 952, 959 n.17; see also id. at 952. The only

material similarities between LaLonde and this case are that

Rivas-Villegas briefly pressed his knee into Cortesluna’s

back while securing his arms for handcuffing; Cortesluna was

not then actively resisting; and Cortesluna claims that the

press of Rivas-Villegas’s knee has caused him continuing

pain. The majority finds those commonalities to be

36 CORTESLUNA V. LEON

dispositive, see Maj. Opin. at 17–18, but in doing so, it

ignores several critical differences between LaLonde and this

case.

In LaLonde, the officers were responding merely to a

neighbor’s complaint that LaLonde was making too much

noise in his apartment, see 204 F.3d at 950–51, whereas

Rivas-Villegas and his colleagues were responding to an

alleged incident of domestic violence that, according to the

police dispatch he heard, reportedly included the suspect’s

manual use of a chainsaw to break something in the house.

And LaLonde was unarmed, see 204 F.3d at 951, whereas

Cortesluna was carrying a pick tool when he first approached

the officers and, after putting that down, he still had a long

knife protruding from his left pocket (i.e., on the side where

Rivas-Villegas placed his knee). There is a very significant

difference between using a knee to hold down a person who

is suspected of a serious violent crime who is armed with a

knife (as in this case) and using a knee to hold down a noisy

neighbor armed with nothing more than a sandwich (as in

LaLonde). See id. at 951–52 (noting that LaLonde was

“holding a sandwich in his hand” and that, when the officer

first grabbed LaLonde, he “knocked the sandwich to the

floor”).

By ignoring the multiple critical differences between this

case and LaLonde, the majority thereby improperly defines

the legal rule established in LaLonde at too high a level of

generality. See Kisela, 138 S. Ct. at 1152. Indeed, the

practical effect of the majority’s ruling today will likely be to

eliminate the use of a knee to protectively hold down a non-

resisting suspect while handcuffing him. The majority

discounts that possibility, claiming that it has merely

reaffirmed that “police may not kneel on a prone and non-

CORTESLUNA V. LEON 37

resisting person’s back so hard as to cause injury.” See Maj.

Opin. at 19 (emphasis added). But this disregards the fact

that an officer on the scene cannot know whether the arrestee

will later claim ongoing subjective pain; the officer can only

know what his or her objective actions are and what the

arrestee’s contemporaneous response is. Here, the officers’

body-cameras’ audiotapes confirm that, from the moment he

was shot with the beanbags, Cortesluna moaned in pain

during his arrest and that Cortesluna did not say at the time

that the knee was hurting him. On this record, there was

nothing about the then-knowable circumstances that would

suggest to the officer that the force here was excessive.

Under the majority’s opinion—in which a later claim of

ongoing subjective pain from the use of a knee is all you need

to get to a jury—an officer would be taking a significant risk

by using a knee to secure an arrestee during handcuffing. The

majority discounts this concern, noting that our “tight-

handcuff cases” have not “eliminated handcuffs.” See Maj.

Opin. at 19. But our tight-handcuff cases have not done so

presumably because (unlike today’s flawed ruling) those

cases have not allowed arrestees to defeat summary judgment

on an excessive force claim merely by claiming ongoing

subjective pain. See, e.g., Arpin, 261 F.3d at 921–22;

Peterson v. Union Pac. R.R. Co., 480 F. App’x 874, 874 (9th

Cir. 2013); see supra at 31–33.

Once again, a panel of this court disregards the Supreme

Court’s repeated admonition that, in the excessive force

context, “police officers are entitled to qualified immunity

unless existing precedent ‘squarely governs’ the specific facts

at issue.” Kisela, 138 S. Ct. at 1153 (citation omitted).

Because neither LaLonde nor any other existing precedent

governs the specific facts presented here, Rivas-Villegas is

entitled to qualified immunity.

38 CORTESLUNA V. LEON

II

Finally, the majority reinstates Cortesluna’s state-law

claims and his claims under Monell v. Department of Social

Services, 436 U.S. 658 (1978), insofar as they relate to Rivas-

Villegas’s conduct. See Maj. Opin. at 20. Given that I

conclude that Rivas-Villegas did not use excessive force,

there is no predicate for Monell liability against the City.

And because I would thus affirm the district court’s judgment

with respect to all of the § 1983 claims, there is in my view

no basis for reversing the district court’s dismissal of the

pendent state-law claims without prejudice.

Accordingly, I would affirm the judgment of the district

court in its entirety. I respectfully dissent from the majority’s

decision to the extent that it fails to do so.