Tuuamalemalo v. Greene, No. 18-15665 (9th Cir. 2019)Annotate this Case
The Ninth Circuit affirmed the district court's denial of summary judgment based on qualified immunity to a police officer in an action brought by plaintiff, alleging 42 U.S.C. 1983 and state law claims that the officer used excessive force. The officer placed defendant in a chokehold during an encounter following a concert, and the chokehold rendered plaintiff unconscious.
The panel held that its 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. Barnard held that any reasonable person should have known that squeezing the breath from a compliant, prone, and handcuffed individual despite his pleas for air involves a degree of force that is greater than reasonable. In this case, plaintiff was not resisting arrest when the officer placed him in a chokehold, and there was little chance he could initiate resistance with five other officers fully restraining him and pinning him to the ground. Therefore, 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. Furthermore, the same version of the facts precluded summary judgment on the state law claims.