Split panel rules officer kneeling on suspect on the ground was excessive force

An Alameda County man accused of threatening his girlfriend and her daughters with a chainsaw can reinstate an excessive force lawsuit against a police officer who knelt on his back for roughly 8 seconds while handcuffing him, a split 9th U.S. Circuit Court of Appeals panel ruled.

Circuit Judge Susan P. Graber wrote in the majority opinion filed late Tuesday that Officer Daniel Rivas-Villegas, who planted his knee in Ramon Cortesluna's back after another officer shot the suspect twice with bean bag ammunition, is not entitled to qualified immunity because "existing precedent put him on notice that his conduct constituted excessive force."

She said a jury should decide whether the officer's actions constitute excessive force, and if so, who should be held liable for his conduct. Ramon Cortesluna v. Manuel Leon et al., 2020 DJDAR 11544 (9th. Cir. Oct. 27, 2020).

Another Union City officer said he shot Cortesluna with the bean bag rounds after responding to a 911 call from a 12-year-old girl who said Cortesluna was threatening her, her 15-year-old sister and their mother with a chainsaw. Graber wrote that he acted reasonably under the circumstances, as did a third officer who did not intervene when Cortesluna was pinned on the ground.

Graber was joined by 6th Circuit Judge Ronald L. Gilman, who is on temporary assignment.

9th Circuit Judge Daniel P. Collins dissented from the majority opinion, writing it is unreasonable to believe that Cortesluna posed no threat to the officers once he was shot with the bean bags. Based on evidence presented in surveillance footage of the arrest, the lawsuit should be dismissed in its entirety, Collins wrote.

Cortesluna sued the Union City Police Department and the officers involved in his arrest in 2017 alleging several excessive force claims. He said he has suffered and will continue to suffer "pain, disability, income loss and interference with life activities" stemming from the 2016 arrest.

U.S. Magistrate Judge Jacqueline S. Corley of the Northern District of California dismissed those claims in December 2018. She granted summary judgment in favor of all three officers, saying they are entitled to qualified immunity.

Corley said Cortesluna's home security footage of the arrest disputes his claims he was a victim of an unreasonable search and seizure and excessive force.

"The entire incident -- from the moment Officer Rivas-Villegas secured plaintiff until he was moved out of the way -- lasted less than 30 seconds," Corley wrote.

On Nov. 6, 2016 at around 11 p.m., Union City police responded to Cortesluna's home where his girlfriend and her daughters had said they were barricaded in a bedroom because he was threatening to attack them with a chainsaw.

Court records show that on the night of his arrest Cortesluna opened the door to the officers and dropped a metal object when ordered to do so. But when told to get on the ground he instead put his head down and moved his hands toward his pockets, where the officers saw a knife protruding.

After Officer Manuel Leon fired two bean bag rounds, striking Cortesluna in the hip and belly, Rivas-Villegas used his foot to force Cortesluna to the ground and then planted his knee in his back for 8 seconds while other officers handcuffed him, court records show.

Graber wrote in Tuesday's opinion that Rivas-Villegas' conduct was excessive because by the time he put his knee into Cortesluna's back, "he no longer posed a risk."

"He was lying face down on the ground, experiencing visible pain from having been shot by the two bean bag rounds, and not resisting," Graber wrote.

Collins wrote, however, "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."