Stephen Reinhardt

“ Even if Officer Miller's conduct violated Davis's Fourth Amendment rights, Miller is entitled to qualified immunity if the right violated was not "clearly established." Saucier, 533 U.S. at 201-02. The "dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202. Even where there is no federal case analyzing a similar set of facts, a plaintiff may nonetheless demonstrate that a reasonable officer would have known that the force he used was excessive. ”

“ Stated otherwise, an abuse of discretion is characterized by an application of unreasonable judgment to a decision that is within the actor's rightful prerogatives, whereas an act of bad faith has no relationship to a rightful prerogative even if the result is ostensibly within the actor's ambit of authority. ”

“ Davis appears to concede that he did not oppose summary judgment as to the battery claim in his written opposition to Miller's motion for summary judgment, but contends that he preserved the right to appeal this issue by filing his own motion for partial summary judgment in which he sought summary judgment as to the battery claim.
[11] " [I] t is a general rule that a party cannot revisit theories that it raises but abandons at summary judgment." ”

“ Davis contends that the district court erred in concluding that Officer Miller was immune from suit under state law and therefore entitled to summary judgment with respect to the battery claim. In support of this argument, he relies on Yada v. Simpson for the proposition that "a police officer who uses more force than is reasonably necessary to effect a lawful arrest commits a battery upon the person arrested." ”

“ Next, we must assess the governmental interest that might justify the use of such force under the Graham factors, starting with an assessment of "the severity of the crime at issue." Graham, 490 U.S. at 396. Trespassing and obstructing a police officer, as those offenses were committed by Davis, are by no means such serious offenses as to provide an officer with a reasonable basis for subduing a person by the means employed by Officer Miller. ”

“ This analysis "requires balancing the 'nature and quality of the intrusion' on a person's liberty with the 'countervailing governmental interests at stake' to determine whether the force used was objectively reasonable under the circumstances." ”

“ Graham v. Connor, 490 U.S. 386, 394 (1989) . Here, Davis claims that Officer Miller violated his rights under the Fourth Amendment. [3] "A Fourth Amendment claim of excessive force is analyzed under the framework outlined by the Supreme Court in Graham v. Connor." Smith v. City of Hemet, 394 F.3d 689, 700 (9th Cir. 2005) (en banc) . Under Graham, "all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other 'seizure' ... should be analyzed under the Fourth Amendment and its 'reasonableness' standard." ”

“ See e.g., Chew, 27 F.3d at 1436, 1443 (holding that, under Graham, the fact that the defendant officer used "severe force" to arrest a suspect who did not pose an immediate threat to the safety of police officers was sufficient to preclude summary judgment for the officer, notwithstanding the fact that the suspect had attempted to flee and was the subject of three outstanding felony warrants) ”