Use of Force and Civil Liability

Use of a Beanbag Shotgun

Kneeling on a Suspect’s Back

(1) The use of a beanbag shotgun on a suspect is constitutionally justified where it is believed that the suspect had just committed a dangerous crime, is armed with a knife, and fails to follow orders to keep his hands up and away from the knife in his pocket.  (2) Kneeling on the back of a suspect prone on the ground in order to facilitate his handcuffing when the suspect is no longer resisting and complied with orders to lay on the ground, is constitutionally illegal.

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 his family into a back room with a chainsaw.  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 onto Union City police units in the area, resulting in five officers—including the eventual civil defendants; Officers Manuel Leon, Daniel Rivas-Villegas, Robert Kensic—responding to the scene.  Upon their arrival, the officers found the house to be quite.  But they could see plaintiff through a window, holding nothing more than a beer.  Checking back with the dispatcher, she confirmed that the caller had reported plaintiff was using a chainsaw but acknowledged that “we can’t hear [a chainsaw] over the phone,” suggesting that he might have been using it “manually.”  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 Officer Leon stood by, ready with a beanbag shotgun, Officer Rivas-Villegas knocked on the front door, identifying himself, and commanding 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 dissent as a “pick tool”).  Ordered to drop it, he did.  Despite this compliance, Officer Leon announced that he was “going to hit him with less lethal” (i.e., his beanbag shotgun), while telling another officer to get out of his way.  But before he could, Officer Rivas-Villegas ordered plaintiff to “come out, put your hands up, walk out towards me.” Plaintiff put his hands up as ordered. Officer Rivas-Villegas then told plaintiff to “keep coming.”  Plaintiff complied, walking out of the house towards the officers.  When plaintiff was about ten to 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, Officer Kensic 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!”  Officer Kensic then told plaintiff; “[D]on't, don't put your hands down,” and “hands up.” Plaintiff turned his head toward Officer Kensic, who was on plaintiff's left side, (and away from Officer Leon, who was on plaintiff's right side) and ignored Officer Kensic’s orders by simultaneously lowering his head and his hands.  Officer Leon immediately shot plaintiff with a beanbag round from his shotgun, quickly firing a second beanbag shot as plaintiff’s hands were still in a downward position near his belly where the first shot hit. The second shot hit plaintiff on the hip. Roughly two seconds elapsed between Officer Kensic’s “hands up” order and the second shot.  Despite being shot twice with successive beanbags, 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 and pulled his arms behind his back so that Officer Leon could handcuff him.  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 that Officer Leon had used excessive force in shooting him with a beanbag shotgun, that Officer Rivas-Villegas had used excessive force when he kneeled on him while on the ground, and that Officer Kensic was also liable for having failed to intervene and stop the excessive force.  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 Officers Leon and Rivas-Villegas was objectively reasonable under the circumstances and that they were entitled to qualified immunity. As for Officer Kensic, the court ruled that he had no reasonable opportunity to intervene and therefore could not be liable.  Plaintiff Appealed.

The Ninth Circuit Court of Appeals, in a severely splintered split decision (2-to-1), reversed in part and affirmed in part, remanding the case back to the trial court for further hearings.  The rules are well established:  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.  In determining the availability of qualified immunity, a court is to employ a two-part analysis; (1) whether the facts taken in the light most favorable to the plaintiff show that the officer’s conduct violated a constitutional right, and if so, (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. 

(1) Use of the Beanbag Shotgun by Officer Leon:  Plaintiff argued that Officer Leon violated the Fourth Amendment by shooting him twice with a beanbag shotgun.  A majority (2-to-1) of the Court disagreed, finding that the use of the beanbag shotgun under these circumstances was constitutionally reasonable.  First, the Court noted that the use of beanbag shotguns is considered to be “less lethal” than the use of a standard firearm.  Beanbag rounds are “potentially lethal at thirty feet and could be lethal at distances up to fifty feet.”  They are therefore “not to be deployed lightly.” However, the use of a beanbag shotgun “is permissible only when a strong governmental interest compels the employment of such force.”  (Deorle v. Rutherford (9th Cir. 2001) 272 F.3rd 1272, 1279-1280.)  In assessing the governmental interest, a court is to 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 County (9th Cir. 2011) 673 F.3rd 864, 872.) Using these standards, a majority of the Court found Officer Leon’s use of a beanbag shot gun to be reasonable.  This was based upon the severity of plaintiff’s crime (chasing after others with what was believed to be a chainsaw), he emerged from the house carrying a large metal object, he had a visible knife in his pants pocket, and while ignoring the officers’ orders to keep his hand up, started to reach in the direction of that knife. This, per the majority of the Court, constituted reasonable grounds justifying the use of a less lethal beanbag shotgun in subduing plaintiff.  (The dissent disagreed, feeling that plaintiff, as he was surrounded by five armed police officers, did not constitute a threat at that point.   The dissenting Justice also noted that plaintiff’s knife was positioned in his pocket with the blade facing up, making it unlikely plaintiff could readily use the knife to hurt anyone.  Per the dissent; “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 (plaintiff) had emerged from the house.”) 

(2): Officer Rivas-Villega Kneeling on Plaintiff’s Back:  Plaintiff argued that Officer Rivas-Villegas violated his Fourth Amendment right to be free from excessive force by leaning too hard on his back, causing injury.  On this issue, a majority of the Court (with a different justice dissenting) agreed.  The Court first noted that 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. (Citing LaLonde v. County of Riverside (9th Cir. 2000) 204 F.3rd 947.)  In this case, after noting that whether or not plaintiff actually suffered any injuries is irrelevant, the majority of the court held that Officer Rivas-Villegas was not entitled to summary judgment.  Under the circumstances as alleged by plaintiff, it was evident that he was not resisting (if he ever did) by the time Officer Rivas-Villegas knelt down on his back.  Per the Court, plaintiff no longer posed a risk once he was on the ground. Voluntarily lying face down, experiencing visible pain from having been shot by the two beanbag rounds, there was no apparent need for Officer Rivas-Villegas to kneel on him while he was handcuffed. Although the knife remained in plaintiff's pocket, from Officer Rivas-Villegas’ perspective he should have been able to see that the knife was protruding blade-up such that it would not have been possible for plaintiff to grab it and attack the officers.  Existing precedent (i.e., LaLonde v. County of Riverside) clearly established the rule that kneeling on a suspect’s back when unnecessary constitutes a Fourth Amendment excessive force issue that needs to be resolved by a civil jury.  This part of plaintiff’s lawsuit was therefore remanded to the trial court for trial.   (The dissenting opinion, in viewing a videotape taken from plaintiff’s home security system, found the force used not to be excessive.  In so finding, this Justice pointed out that Officer Rivas-Villegas did not “jump” on plaintiff’s back or otherwise “drop” his knee on him, and that the disputed “kneeling” lasted no more than eight seconds while facilitating another officer in his efforts to put handcuffs on the plaintiff.  The dissent did not find this to be unconstitutionally excessive.) 

(3)  Officer Kensic’s Civil Liability for not Intervening:  Plaintiff argued that Officer Kensic violated his constitutional rights by failing to intervene in an effort to prevent the alleged excessive force employed by Officers Leon and Rivas-Villegas.  The trial court held, however, that there was no evidence that Officer Kensic knew in advance what the other officers would do, and did not have the opportunity to intervene as the alleged excessive force acts occurred, in that the events unfolded very rapidly; i.e., in a matter of seconds.  The entire panel of the Ninth Circuit agreed, upholding that trial court’s granting of summary judgment in Officer Kensic’s favor.

I don’t often brief Ninth Circuit civil cases dealing with excessive force claims in that at best, all they typically say is that there either is, or is not, enough evidence to submit to a jury.  That in itself might be helpful except for the fact, as evidenced by this case, that the individual Ninth Circuit justices are seldom consistent in their conclusions.  But there’s not a lot out there on the use of “less lethal” beanbag shotguns, so I thought briefing a case on this issue would be helpful.  If you, as a law enforcement officer, have available to you beanbag shotguns, it would be nice to know when you can lawfully use it.  Given the split of opinion on Officer Leon’s use of the beanbag shogun in this case kind of shows you where the courts might draw the line.  If it’s still unclear to you where that line might be (as it is to me), think about restricting the use of beanbag shotguns to those instances where actually shooting and killing the suspect would have been lawful (e.g., see P.C. § 835a(a)(2): “(O)only when necessary in defense of human life.”  See also P.C. § 835a, subds. (b) & (c).)  My own opinion (if you care):  I think Officer Leon overreacted and that shooting the plaintiff under the circumstances present here was unnecessary, or at least a little premature.  A squirt of pepper spray would have accomplished the same thing and eliminated the possibility of causing serious injury.  As for the kneeling-on-the-back issue, I again would have sided with the minority opinion; i.e., that there is nothing constitutionally wrong with kneeling on a subject’s back for a minimal amount of time (eight seconds here) in order to facilitate the often difficult task of handcuffing a suspect, so long as not done in a brutal or unnecessarily violent manner.  I do note that plaintiff claimed that he was injured in the process; a claim that has yet to be proved.  If he was injured, then Officer Rivas-Villegas’s act of kneeing on plaintiff’s back may have been more forceful than this decision reflects.  But as we’ve seen by recent events (e.g., the May 25, 2020, killing of (five-time felon, career criminal, drug-abusing) George Floyd by asphyxiation in Minnesota), kneeling on a suspect’s neck (as opposed to his back) for some eight minutes and 46 seconds is clearly (in my opinion) excessive, at least if done on a non-resisting suspect.  Please hold your cards and letters! I’m in no way saying that killing Floyd was justified just because he may have been someone of questionable character.  But I also don’t presume to prejudge (now former) Officer Derek Chauvin’s potential criminal liability in killing Floyd.  We’ll have to wait and see how the evidence turns out at Chauvin’s trial before judging any of the players in this incident.