• Use of Force in Subduing Armed Suspect
• Knee in the Back While Handcuffing
• Qualified Immunity in Federal Civil Suits

Kneeling on an armed, potentially violent, suspect’s back for eight seconds while handcuffing him, does not necessarily subject the offending officer to federal civil liability for using excessive force.  Absent prior case law to the contrary, the officer is entitled to qualified immunity.

Plaintiff Ramon Cortesluna had a drinking problem; getting violent and abusive with his live-in girlfriend and her two daughters (ages 12 and 15) when he drank.  On the evening of November 6, 2016, he did just that, chasing them all into a back room where they managed to barricade themselves.  Twelve-year-old I.R. called 911, telling the operator that they were all barricaded in a room because plaintiff was “always drinking,” had “anger issues,” was “really mad,” and was breaking up the house with a chainsaw and was going to hurt them.  I.R. further reported that her mother was holding the door closed to prevent plaintiff from entering and hurting them.  I.R.’s older sister then came on the line, telling the operator that plaintiff was “sawing on the door knob” as they spoke.  The 911 operator could hear a sawing sound as she talked to the two girls.  This information was passed on to Union City police units in the area, resulting in five officers—including the eventual civil defendants in this case, one of whom was Daniel Rivas-Villegas—responding to the scene.  Upon their arrival, the officers found the house to be quiet.  But they could see plaintiff through a window, holding nothing more than a beer.  Checking back with the dispatcher, it was confirmed that the caller had reported that plaintiff had been using a chainsaw. The dispatcher further reported to the officers that during the 911 call, she heard sawing sounds in the background as if plaintiff were trying to saw the bedroom door down, and that the callers complained that they were unable to get out.  As one officer stood by, ready with a beanbag shotgun, Officer Rivas-Villegas knocked on the front door, identified himself, and commanded plaintiff to come to the door.  A few seconds later, plaintiff emerged from a nearby sliding glass door, holding a large metal object that looked like a crowbar (described in the Nine Circuit’s decision as a “pick tool”).  Ordered to drop it, he did.  Officer Rivas-Villegas then ordered plaintiff to “come out, put your hands up, walk out towards me.” Plaintiff complied.  Officer Rivas-Villegas told plaintiff to “keep coming.”  Plaintiff continued to comply, walking out of the house towards the officers.  When plaintiff was about ten or eleven feet from the officers, Officer Rivas-Villegas told him “stop” and “get on your knees.”  Plaintiff stopped as ordered, but failed to drop to his knees.  As plaintiff stood there, another officer observed a knife in the front left pocket of his sweatpants, announcing to the other officers that plaintiff had “a knife in his left pocket, knife in his pocket!”  An officer commanded plaintiff not to put his hands down.  Plaintiff ignored the officer’s orders by simultaneously lowering his head and his hands.  Plaintiff was immediately shot twice with beanbag rounds as his hands were still in a downward position, hitting him in the belly and hip.  Plaintiff again raised his hands over his head and then, when ordered again, lowered himself to the ground.  As he was doing so, Officer Rivas-Villegas used his foot to push plaintiff flat on the ground.  Once down, Officer Rivas-Villegas pressed his knee into plaintiff’s back on the side where the knife was, and pulled his arms behind his back so that another officer could handcuff him.  Plaintiff was held in this position with Officer Rivas-Villegas’ knee in his back for no more than eight seconds.  Officer Rivas-Villegas then lifted plaintiff up by his handcuffed hands and moved him away from the doorway.  Plaintiff’s girlfriend and her two daughters were found safe and unharmed in the house.  (Unknown if they ever found a chainsaw.)  Plaintiff later filed a civil suit in federal court (per 42 U.S.C. § 1983) alleging (1) the use of excessive force in shooting him with a beanbag shotgun and (2) Officer Rivas-Villegas’ use of excessive force by kneeling on him while he was on the ground.  As a result of the officers’ actions, plaintiff claimed that he suffered “physical, emotional, and economic injuries.” The federal district (trial) court granted the civil defendants’ (i.e., the officers) respective summary judgment motions, ruling that that the force used by the officers was objectively reasonable under the circumstances and that they were entitled to qualified immunity. Plaintiff Appealed. The Ninth Circuit Court of Appeal, in a partial reversal, agreed with the trial court that use of the beanbag shotgun was reasonable and that the officers were entitled to qualified immunity on that issue.  However, it was also held, in a split (2-to-1) decision, that Officer Rivas-Villegas was not entitled to qualified immunity for kneeling on plaintiff’s back, finding that their prior decision in LaLonde v. County of Riverside (9th Cir. 2000) 204 F. 3rd 947, put the officer on notice that kneeling on a non-resisting subject’s back constituted excessive force and a Fourth Amendment violation.  The Ninth Circuit therefore reversed the trial court on that issue.  (See Cortesluna v. Leon (9th Cir. Oct. 27, 2020) 979 F.3rd 645, briefed at  California Legal Update, Vol. 26, #2, dated Jan. 18, 2021.)  Officer Rivas-Villegas petitioned for certiorari to the United States Supreme Court.

The United States Supreme Court, in a unanimous “per curiam” decision (i.e., without oral arguments and without identifying the decision’s author), granted Officer Rivas-Villegas’ petition for certiorari and reversed.  The Court first set out the rules for when the doctrine of “qualified immunity,” protecting cops from potential civil liability, might apply.  Qualified immunity attaches when an officer’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.  (White v. Pauly (2017) 137 S.Ct. 548, 551.) A right is clearly established, and a lawsuit will be upheld, when it is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” (Mullenix v. Luna (2015) 577 U.S. 7, 11.) Although the Supreme Court has never held that a case must be directly on point for a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.”  (White v. Pauly, supra.)  This inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.”  (Brosseau v. Haugen (2004) 543 U.S. 194, 198.)  Specificity, it is especially important in the Fourth Amendment context; i.e., where it is sometimes difficult for an officer to determine how the relevant legal doctrine (e.g., the use of “excessive force”) will apply to the factual situation the officer confronts.  (Mullenix v. Luna, supra, at p. 12.) Whether an officer has used excessive force depends on “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 (1989) 490 U. S. 386, 396; see also Tennessee v. Gardner (1985) 471 U.S. 1, 11.)  Lastly, the Supreme Court noted here that in an obvious case, these standards can “clearly establish” the answer, even without a body of relevant case law.  However, per the Court; “this (current case) is not an obvious case.”  In order to show a violation of clearly established law, plaintiff must identify a case that put Officer Rivas-Villegas on notice that his specific conduct was unlawful.  Plaintiff attempted to do that by using their own prior decision in LaLonde v. County of Riverside, supra.  Questioning whether an intermediate appellate court, such as the Ninth Circuit Court of Appeal, can use their own case decisions, as opposed to a U.S. Supreme Court decision (an issue that is not further discussed, but see Note, below), the Court held that LaLonde is so factually different from the instant situation that it did not put Officer Rivas-Villegas on notice that putting his knee on plaintiff’s back might constitute a Fourth Amendment excessive force issue.  Per the Court: “(F)or purposes of §1983, LaLonde is materially distinguishable and thus does not govern the facts of this case.”  For instance, LaLonde involved a mere noise complaint as opposed to a violent domestic dispute. The plaintiff in Lalonde was unarmed, carrying no more than a sandwich.  While the plaintiff in Lalonde did, at least initially, offer some resistance, such resistance ceased as soon as he was pepper-sprayed.  And then, while handcuffing the unresisting plaintiff, the defendant officer “deliberately dug his knee into LaLonde’s back with a force that caused him long-term if not permanent back injury.”  Finding insufficient similarity between the two cases, the Court held that “(o)n the facts of this case, neither LaLonde nor any decision of this Court is sufficiently similar.”  The Court therefore granted Officer Rivas-Villegas’ petition for certiorari and reversed the Ninth Circuit’s determination that the officer is not entitled to qualified immunity.

There is an article written by someone named Ian Millhiser, dated October 20th of this year.  Mr. Millhiser, who I’ve never of heard before, has some serious credentials; more than qualifying him to write on this topic. You can “google” his name if you’re interested.  And you can find his article at “https://www. The Supreme Court floats a startling expansion to police immunity from the law.” This article draws attention to two off-the-wall comments made by the Supreme Court in this decision to the effect that circuit court of appeal decisions can no longer (if they ever could) be used as precedent in establishing an officer’s knowledge that the force he is using might be unreasonable.  Specifically, the comments made by the Court were; “. . . even assuming that Circuit precedent can clearly establish law . . . .” and “. . . even assuming that controlling Circuit precedent clearly establishes law. . . .”  Per Mr. Millhiser: “These lines open the door to a new regime, where victims of police violence can no longer rely on (lower) appellate court decisions to breach an officer’s partial immunity to suit.”  Mr. Millhiser cites in his article the U.S. Supreme Court case of Lane v. Franks (2014) 573 U.S. 228, as an “indicat(ion) that (contrary to what’s intimated in this new case) circuit court precedent can (in fact) overcome qualified immunity.”  But, if you read it, Franks does not so hold.  It merely discusses whether or not various Eleventh Circuit Court of Appeal decisions were close enough to use as precedent in that case without ever considering the issue whether circuit court of appeal decisions in general are in fact available for that purpose.  So while the two comments referenced by Mr. Millhiser in this new case may cast some doubt as to the propriety of using prior circuit court of appeal decisions on the issue of qualified immunity, it really can’t be considered (being no more than mere “dicta,” at best) as any more than an invitation for litigators and courts to debate the issue in some future qualified immunity case.  Note also that California cops have to be concerned with Senate Bill 2, signed by Governor Newsom on September 30th, limiting the doctrine of qualified immunity in cases filed in state court under the so-called Bane Act (Civil Code § 52.1); California’s equivalent to a federal 42 U.S.C. § 1983 civil suit.  I don’t have all the painful details on SB 2 yet, other than to forewarn you that when it becomes effective on January 1, 2022, it will eliminate certain immunity provisions for peace officers and custodial officers, or public entities employing peace officers or custodial officers, sued in state court under the act.  You can look forward to more detail in future Updates.  Lastly, don’t fall victim to the temptation of letting the George Floyd case (occurring in May, 2020) influence your thinking about “kneeling-on-the-back” cases.  The Floyd situation was vastly different, with the offending Minneapolis police officer (Derek Chauvin) kneeling on the already-handcuffed Floyd’s “neck” for 8 minutes and 46 seconds as Floyd complained that he couldn’t breathe.  In this new case, for instance, Officer Rivas-Villegas testified that he kneeled on the side of Cortesluna’s back, where the knife was located, so that he couldn’t reach it as they attempted to handcuff him.  Further, it was only for eight seconds, and there was no complaint by Cortesluna that it was hurting him or preventing him from breathing.  The Floyd situation, therefore, obviously cannot be used as any sort of precedent for condemning Officer Rivas-Villegas’ actions in this case.