United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON ALL
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
after 4:00 a.m. on November 1, 2014, four Hawaii County
Police Department Officers responded to a 911 call from Linda
Leong, who reported that her ex-boyfriend, Jonathan Kimo
Santiago, was banging on the walls of her home and yelling at
her to “open up.” Leong called 911 because she
“could tell that Santiago was drunk” and had
crashed his truck into the rock wall fronting her home.
Officers Wyatt Kaili-Leong, Kimo Veincent, Cala Arnold, and
Bryson Miyose arrived on-scene where the
less-than-cooperative Santiago was eventually arrested-but
not before sustaining injuries, including bruises on his arms
and the loss of his two front teeth upon impact with the
ground. Santiago, proceeding pro se, asserts that the manner
of his arrest and police department practices were unlawful.
He brings claims against two of the responding
Officers-Veincent and Miyose-and the County of Hawaii Police
Department (the “County”) for violations of
federal and state law. Defendants move for summary judgment
on all claims.
Officer Miyose is entitled to qualified immunity, and because
there are no genuine issues of material fact with respect to
any theory of municipal liability against the County, these
Defendants are entitled to summary judgment on Santiago's
42 U.S.C. § 1983 cause of action. All Defendants also
meet their summary judgment burden with respect to
Santiago's related state law claims. Construing the facts
in the light most favorable to Santiago, however, Officer
Veincent has not demonstrated that his conduct was
objectively reasonable under the circumstances or that he did
not violate Santiago's clearly established Fourth
Amendment rights, and accordingly, he is not entitled to
qualified immunity on Santiago's Section 1983 claim. The
Court therefore grants in part and denies in part
Defendants' Motion for Summary Judgment, as detailed
alleges that Veincent is responsible for knocking out his
front teeth after twice pinning him on the ground and
“inflicting other bodily and psychological
injuries” during the course of arresting Santiago on
November 1, 2014. See Am. Mem. in Opp'n at 2,
Dkt. No. 102. He also claims that Officers Miyose,
Kaili-Leong, and Arnold failed to protect him from
Veincent's attack and “failed to render adequate
medical assistance to plaintiff after the assault.”
Id. Although the parties recite similar
timelines concerning the primary incidents, their specific
versions of events diverge with respect to key occurrences,
and they dispute the conduct by Santiago and the arresting
Officers during the course of his arrest. Because many of the
salient details of Santiago's arrest are disputed, the
Court sets forth the following chronology, noting the
discrepancies in the parties' respective recountings of
Santiago's November 1, 2014 Arrest
October 31, 2014, Santiago attended a concert at Coqui's
Bar and Grill that his employer, All Service Hawai‘i,
paid to sponsor. Pl.'s Ex. 2 at 11-13 (6/20/17 Santiago
Dep. Tr.), Dkt. No. 103-2. According to Santiago, he ate
before arriving at 7:30 p.m., and consumed approximately five
Heineken beers over the course of the evening at Coqui's,
before leaving at 1:45 a.m. 6/20/17 Santiago Dep. Tr. at
12-13. At that point, he sat in his truck, “playing on
[his] cell phone, texting people, ” when he fell
asleep. 6/20/17 Santiago Dep. Tr. at 14. According to
Santiago, he woke up approximately an hour later and decided
to visit his former girlfriend, Linda Leong, before driving
to his home in Keaau. Id. at 14. Per Santiago, while
turning onto Leong's street, he “pressed his brake
causing his truck tires to skid on the grass, hitting
Leong's newspaper box, a small pine tree and a portion of
her stonewall-all located where the truck skid to, incurring
a minimal amount of damage.” Am. Mem. in Opp'n at 5
(citing 6/20/17 Santiago Dep. Tr. at 15-17).
home is surrounded by a rock wall topped with a fence along
with a locking gate and posted “No Trespassing”
signs. Decl. of Linda Leong ¶ 3, Dkt. No. 85-4. Because
the gate was locked that night, Santiago climbed over the
fence onto Leong's property, as he had done in the past,
“and called out to Leong saying he was sorry that he
didn't call her in a while and that he wanted to talk to
her.” Am. Mem. in Opp'n at 5 (citing 6/20/17
Santiago Dep. Tr. at 15, 98). Leong was asleep inside the
home, along with her five-year-old daughter, but was awakened
around 4:00 a.m. by Santiago's arrival that was signaled
by two “loud banging noises” that “sounded
like a traffic accident or a car hitting something.”
Leong Decl. ¶¶ 2, 4. Leong looked outside and, upon
seeing Santiago's truck in her driveway, closed all the
windows and called 911 because she did not want him at her
home. Leong Decl. ¶¶ 5, 7. Although they had been
in an on-again, off-again relationship for two years, Leong
states that she and Santiago had been broken up for nearly a
year with no contact before he arrived at her house at 4:00
a.m. on November 1, 2014.Leong Decl. ¶ 6.
observed Santiago enter the enclosed fenced area of her home,
and heard him yelling and crying, while asking her to
“open up” and banging on the outside walls of the
house. Leong Decl. ¶ 6. According to Leong, she
“could tell that Mr. Santiago was drunk by the way he
was talking and yelling and because he was having problems
walking. [She] saw him stumbling and fall down more than
once[.]” Leong Decl. ¶¶ 8, 9.
Police Department dispatcher Jason O'Brien received
Leong's 911 call at 4:14 a.m. on November 1, 2014,
classified it as an “Active-Domestic, ” and
contemporaneously logged the information taken on the call in
a Police Department Event Chronology. See Decl. of
Jason O'Brien ¶¶ 4-5, 11, Dkt. No. 85-11;
Defs.' Ex. K at 1 (Calls for Service Sheet Event No.
P2014200502), Dkt. No. 85-12; Defs.' Ex. L at 1 (Event
Chronology for Event No. P2014200502), Dkt. No. 85-13.
O'Brien's chronology identifies which police officers
were dispatched and their time of arrival at Leong's
home. O'Brien Decl. ¶¶ 8-9, Exs. K and L.
O'Brien first dispatched Officer Arnold at 4:15 a.m.,
then Officer Kaili-Leong immediately thereafter. O'Brien
Decl. ¶ 12; Exs. K at 1-2 and L at 1. Officer Veincent
was dispatched to Leong's residence at 4:19 a.m.,
followed by Officer Miyose at 4:21 a.m. O'Brien Decl.
¶ 13; Exs. K at 1-2 and L at 1.
is no dispute that Officer Kaili-Leong was the first officer
to arrive at the scene. According to Santiago, when Kaili-Leong
called out to him from outside the fence near the roadway,
Santiago “immediately came toward him and climbed back
over the fence.” Am. Mem. in Opp'n at 6.
Kaili-Leong asked Santiago “what happened to [his]
hand-why it was bandaged and [Santiago] proceeded to tell him
that [he] had stitches because [Santiago] cut [him]self
cooking about a week [prior].” Am. Mem. in Opp'n at
5 (citing 6/20/17 Santiago Dep. Tr. at 26). Santiago posits
that he was “speaking calmly with Officer
Kaili-Leong” when “Officer Veincent pulled up
with his police vehicle, jumped out, grabbed me by the
wrist[, ] whacked me on my arm and slammed me to the ground
with such excessive force that [his] two front teeth were
knocked-out from the roots.” Am. Mem. in Opp'n at
6-7 (citing 6/20/17 Santiago Dep. Tr. at 26-27, 31-35).
described by Santiago, while on the ground, he “was
handcuffed, [and then] brought to his feet and [he] began to
yell at Officer Veincent in his face because he wanted to
know why [he] was under arrest and why he was being
assaulted.” Am. Mem. in Opp'n at 7. Santiago told
Veincent that “he didn't deserve” to be taken
down to the ground, and asked Veincent, “why you did
that for?” 6/20/17 Santiago Dep. Tr. at 34-35.
According to Santiago, Veincent responded, “I thought
you was going to head butt the other officer, okay.”
6/20/17 Santiago Dep. Tr. at 35. When Santiago got up, he
“got into Veincent's face, ” yelling at him
from about one foot away, close enough that blood from
Santiago's injured mouth got onto Veincent's face.
6/20/17 Santiago Dep. Tr. at 39-40. It was then that
“Veincent grabbed [Santiago's] wrist and threw him
to the ground again, stepping on plaintiff's back to make
sure he stayed down-plaintiff went unconscious and sustained
injuries to his elbows, wrist, knee and thigh.” Am.
Mem. in Opp'n at 6 (citing 6/20/17 Santiago Dep. Tr. at
39-41; Exs. 3-5).
version of events includes significant details absent from
Santiago's retelling, some of which he neither denies nor
contradicts. When Officer Kaili-Leong arrived at Leong's
residence, he observed Santiago looking into a window and
called over the fence several times before Santiago finally
noticed him. Decl. of Wyatt Kaili-Leong ¶¶ 10-11,
Dkt. No. 85-5. As Santiago walked from the house toward the
locked gate on the driveway, Kaili-Leong smelled a strong
odor of alcohol and observed that Santiago was unsteady on
his feet, “acting belligerently and constantly
swearing.” Kaili-Leong Decl. ¶¶ 11-12. As
Kaili-Leong made initial contact with Santiago, who was still
inside the enclosed fence, Veincent arrived. Kaili-Leong
Decl. ¶ 14; Decl. of Kimo Veincent ¶ 8, Dkt. No.
85-6. Veincent observed Santiago stumbling, yelling and
cursing and believed he was “heavily
intoxicated.” Veincent Decl. ¶ 9. Leong, who was
watching from inside her home, saw Santiago unsuccessfully
try to open and then try to climb over the locked gate twice,
almost falling to the ground. Leong Decl. ¶ 12. He then
walked over to the nearby rock wall, which was lower than the
gate. Leong Decl. ¶ 13. Santiago, with some difficulty,
climbed back over the rock wall and fence to get outside
Leong's property. Leong Decl. ¶ 13; Kaili-Leong
Decl. ¶ 15; Veincent Decl. ¶¶ 9-10. Officer
Arnold, the third officer on the scene, arrived as Santiago
was climbing over the fence and observed Officers Kaili-Leong
and Veincent assisting Santiago. Decl. of Cala Arnold
¶¶ 8-9, Dkt. No. 85-7.
Santiago was back over the fence, he picked up a
grapefruit-sized rock with his right hand that he had knocked
loose from the wall with his truck upon arrival. Kaili-Leong
Decl. ¶ 15; Veincent Decl. ¶ 10. Kaili-Leong
instructed Santiago to put the rock down, and Santiago
responded by yelling, “Don't fucking tell me what
to do.” Kaili-Leong Decl. ¶ 15-17; Veincent Decl.
to the three Officers then present, Santiago continued to
yell at them and, unsteady on his feet, lost his balance and
stumbled to the ground. Kaili-Leong Decl. ¶ 17; Veincent
Decl. ¶ 11; Arnold Decl. ¶ 10. Veincent claims that
he helped Santiago back on his feet by lifting him under his
right arm under his shoulder area. Veincent Decl. ¶ 11;
see also Kaili-Leong Decl. ¶ 17; Arnold Decl.
¶ 11. After Santiago again told Kaili-Leong, “Fuck
you, don't fucking tell me what to do, ” and
aggressively stepped towards him, Kaili-Leong ordered
Santiago to “step back” in a loud, clear tone.
Kaili-Leong Decl. ¶¶ 18-19; Veincent Decl. ¶
12; Arnold Decl. ¶ 11. When Santiago instead continued
to lean forward, pushing his head and body into
Kaili-Leong's face and body area, Kaili-Leong tried to
maintain an arms-length distance using his open left hand,
while keeping his right side and firearm away from Santiago.
Kaili-Leong Decl. ¶¶ 18-19; Veincent Decl.
¶¶ 12- 13. Santiago, however, did not step back,
but “postured up, visibly tensing his arms and suddenly
and unexpectedly lunged at [Kaili-Leong] with his head toward
[Kaili-Leong's] face.” Kaili-Leong Decl. ¶ 20.
In order to avoid Santiago's impact, Kaili-Leong stepped
to his right and pushed Santiago away with his open right
hand placed on Santiago's back, and Santiago fell to the
ground. Kaili-Leong Decl. ¶¶ 21. Once Santiago was
on the ground, Kaili-Leong secured his right arm, placed him
in handcuffs and instructed him to stop resisting.
Kaili-Leong Decl. ¶ 22. Kaili-Leong saw that Santiago
had “fallen on his front side striking his chin on the
cinder and gravel covered ground[, ] [and] [w]hen [his] chin
hit the ground, he knocked out his two front teeth . . .
caused bleeding in his mouth.” Kaili-Leong Decl.
heard Kaili-Leong instruct Santiago to “step
back” and “stop pushing up against me, ”
before seeing Santiago pull his body away, rear back, and
give the appearance that he was going to assault Kaili-Leong.
Veincent Decl. ¶¶ 12-14. Arnold saw virtually the
same thing. She observed Santiago lunge with force toward
Kaili-Leong to head butt him. Arnold Decl. ¶ 12.
Veincent, standing to the right of Santiago, attempted to
hold Santiago by his right arm, but could not prevent his
fall, after he lunged and lost his balance. Veincent Decl.
¶¶ 15-16. Veincent then assisted Kaili-Leong by
gaining control of Santiago's right arm, so that
Kaili-Leong could place handcuffs on him, and he and
Kaili-Leong pulled Santiago to his feet and placed him in a
marked police vehicle. Veincent Decl. ¶¶ 17-18.
There is no dispute that at no time did any Officer punch or
kick Santiago, nor was pepper spray, a baton, taser, blunt
object, or firearm used to subdue him. See Am. Mem.
in Opp'n at 8; Kaili-Leong Decl. ¶ 24; Veincent
Decl. ¶ 19.
Miyose was the last officer to arrive, when Santiago was
already on the ground and handcuffed, at approximately 4:35
a.m. Decl. of Bryson Miyose ¶¶ 7-8, Dkt. No. 85-8.
Miyose observed that Santiago was bleeding from his mouth and
that two of his teeth were missing. Miyose Decl. ¶ 10.
Miyose also observed the damage to Leong's rock wall and
newspaper box, an uprooted tree, tire marks in the grass, and
the dents and scratches on Santiago's truck. Miyose Decl.
¶¶ 12-14. When Miyose asked Santiago about the
observed damage, Santiago told him, “I didn't hit
anything, I drove into the driveway nicely.” Miyose
Decl. ¶ 15. Miyose declares that Santiago
“appeared to be highly intoxicated with red, glassy
eyes and was unruly.” Miyose Decl. ¶ 16.
were requested and dispatched at 4:57 a.m. to meet Santiago
at the police station. O'Brien Decl. ¶ 15;
Defs.' Ex. L at 3 (Event Chronology for Event No.
P2014200502). Santiago arrived at the Pāhoa
Police Station at 5:04 a.m. and did not receive any medical
treatment. O'Brien Decl. ¶ 16; Ex. L at 3; see
also Pl.'s Ex. 18 (11/1/14 County Fire Dep't
Incident Report), Dkt. No. 103-18 (noting “No
mutual/automatic aid was given or received” and
“UPON ARRIVAL, NO EMS NEEDED OR WANTED”). Officer
Arnold, who was present during Santiago's processing at
the police station, observed that he fell asleep on several
occasions and that after he had slept for a period of time,
“he became calm and cooperative.” Arnold Decl.
was charged with Operating a Vehicle Under the Influence of
an Intoxicant; Refusal to Submit to a Breath, Blood or Urine
Test; No No-Fault Insurance; Attempted Assault in the Third
Degree against Officer Wyatt Kaili-Leong; and Criminal
Trespass in the Second Degree. Defs.' Ex. M (12/5/14
Crim. Compl. in 3DCW-14-003356), Dkt. No. 85-14. On August
13, 2015, Santiago pled guilty to Criminal Trespass, was
sentenced to a suspended term of 7 days in jail, fined $200,
and ordered to stay away from Leong. Santiago's
driver's license was also revoked for one year.
Defs.' N (8/13/15 Judgement in 3DCW-14-003356), Dkt. No.
85-15; Defs.' Ex. O (5/22/15 Decision in No. 14-05693),
Dkt. No. 85-16.
May 1, 2015 Incident Involving Veincent
addition to the November 1, 2014 incident, Santiago alleges
an additional run-in with Veincent, on May 1, 2015, in which
“Officer Veincent veered through on-coming traffic
toward [Santiago] and his worker, causing them to run off the
highway.” Am. Mem. in Opp'n at 9. According to
Santiago, on that date, he was on State Highway 11, also
known as Volcano Road, in his company truck with worker
Bradley Kanoa, when he saw a red Dodge Charger with a blue
light on top swerving in their direction. Santiago filed a
complaint against Veincent with the County Police Commission
following the incident. Pl.'s Ex. 19 (5/26/15 Police
Commission Compl.), Dkt. No. 103-19.
County and Veincent dispute Santiago's account.
Santiago's co-worker, Bradley Kanoa, confirms that he was
driving Santiago's company truck on May 1, 2015, recalls
seeing a red police car, and heard Santiago “grumbling
about a police officer.” Kanoa, however, did not see
any car swerve at them or drive them off the road. Decl. of
Bradley Kanoa ¶¶ 4, 8-9, 10-16, Dkt. No. 85-17.
According to Veincent, he was never on State Highway 11,
Volcano Road, around 11:00 a.m. on May 1, 2015. Veincent
Decl. ¶ 20. On May 1, 2015, Veincent was assigned to
Beat 838 from 6:45 a.m. to 3:30 p.m. and reported to several
incidents in Pāhoa, which the County describes as not
near the area described by Santiago-a County Police
Department Watch Sheet, a Miscellaneous General Report, and a
Miscellaneous Service Report document that Veincent was not
in the area described by Santiago during his beat. Veincent
Decl. ¶¶ 20-22; Defs.' Exs. Q, R, and S (5/1/15
County Police Dep't Reports).
claims that the County's rebuttal documentation does not
demonstrate that Veincent was not in the area around 11:00
a.m., when Santiago claims the incident occurred. The County
Police Department Watch Sheet and Work Schedule places
Officer Veincent on lunch from 10:00 a.m. to 10:45 a.m. and,
according to Santiago, “Veincent lives in the
Keaau-Volcano District, exactly where plaintiff states the
incident occurred.” Am. Mem. in Opp'n at 9.
Moreover, under Santiago's theory, because the
County's Miscellaneous Service Report does not place
Veincent at the scene of an unrelated incident in Pāhoa
until 11:35 a.m., Santiago argues that Veincent had
“ample time to drive to his dispatched location.”
Am. Mem. in Opp'n at 9.
filed complaints against the individual Officers with the
County Police Commission and the Police Department's
Office of Professional Standards (“OPS”)
following his November 1, 2014 arrest. See Pl.'s
Ex. 11 (1/12/15 County Police Commission Compl. against
Veincent), Dkt. No. 103-11; Ex. 7 (5/26/15 County Police
Commission Compl. against Miyose), Dkt. No. 103-7; Ex. 8
(12/12/16 County Police Dep't OPS Compl. against Miyose),
Dkt. No. 103-8. In October 2016, Santiago, proceeding pro se,
filed a civil action against Defendants in the Circuit Court
of the Third Circuit, State of Hawai‘i, which
Defendants removed to this Court on October 28, 2016.
See Notice of Removal, Dkt. No. 1; Compl., Dkt. No.
alleges that the individual Officers used “extreme and
excessive force” when arresting him on November 1,
2014. Compl. ¶ 11. Specifically, he asserts that
Veincent “informed [Santiago] he was under arrest after
use of extreme, excess force and physical injury to
[Santiago].” Compl. ¶ 12. Additionally,
“[w]hen [Santiago] proceeded to ask Officer Veincent
why he was being arrested, his response was, ‘. . .
thought you . . . was going to head-butt the other
officer' and proceeded to force Plaintiff back to the
ground, cracking Plaintiff's jaw in the process.”
Compl. ¶ 12. Miyose, he alleges, “witnessed the
entire assault and injury, but failed to protect Plaintiff
against Officer Veincent's actions and extreme, excessive
abuse that assisted in Plaintiff's extensive
injuries.” Compl. ¶ 13.
upon both the November 1, 2014 and May 1, 2015 incidents,
Santiago claims that “Veincent has continually harassed
Plaintiff causing him extreme emotional distress. Plaintiff
is in fear for his life.” Compl. ¶ 16. He alleges
that all Defendants “were negligent in [their] failure
to provide for Plaintiff's safety and to protect
Plaintiff from attack and injury, ” and “were
also negligent in failure to attend or render aid to
Plaintiff after he was injured.” Compl. ¶ 19.
Santiago seeks compensatory and punitive damages for his
injuries. Compl. ¶¶ 21-22.
move for summary judgment on all claims. Dkt. No. 84. The
individual Officers, Veincent and Miyose, seek a declaration
of qualified immunity on Santiago's claims that they
violated his federal constitutional rights under 42 U.S.C.
§ 1983. The County seeks summary judgment on any theory
of municipal liability under Section 1983. On Santiago's
state law claims, Defendants assert the state qualified or
conditional privilege with respect to any tortious actions
taken in the performance of a government official's
light of his pro se status, on September 25, 2017, the Court
granted Santiago leave to file an Amended Memorandum and a
Separate and Concise Statement of Facts in Opposition to the
Motion (“CSOF”). See Dkt. No. 100.
Santiago filed these documents on October 3, 2017 (Dkt. Nos.
102 and 103), and Defendants filed their supplemental reply
on October 10, 2017 (Dkt. No. 104).
to Federal Rule of Civil Procedure 56(a), a party is entitled
to summary judgment “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” At summary
judgment, a court's function is not to weigh the evidence
and determine the truth but to determine whether there is a
genuine issue for trial. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). The Court must draw all
reasonable inferences in favor of the nonmoving party, and it
may not make credibility determinations or weigh the
evidence. See id. at 255. A fact is
“material” if its proof or disproof is essential
to an element of a plaintiff's case. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute
is “genuine” “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Id. at 248. “Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no genuine issue for
trial.” Matsushita Elec. Industrial Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal
Santiago is proceeding pro se, the Court liberally construes
his filings. See Erickson v. Pardus, 551 U.S. 89, 94
(2007); Eldridge v. Block, 832 F.2d 1132, 1137 (9th
Cir. 1987) (“The Supreme Court has instructed the
federal courts to liberally construe the ‘inartful
pleading' of pro se litigants.”) (citing Boag
v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)).
Court acknowledges that the events of November 1, 2014 are
materially in dispute with respect to certain key facts.
However, even adopting the version of the facts advanced by
Santiago, the Officers' conduct was reasonable under the
totality of the circumstances and they are entitled to
qualified immunity on his Section 1983 claims with one
exception-the Court denies Officer Veincent qualified
immunity on Santiago's excessive force claim. Santiago
fails to raise any genuine issue of material fact with
respect to any theory of municipal liability, entitling the
County to summary judgment. Finally, as to any state law
claims-whether sounding in negligence or otherwise-Santiago
fails to raise a genuine issue of material fact with respect
to Defendants' entitlement to a qualified privilege under
state law. The Motion is therefore denied as to Officer
Veincent's qualified immunity request and granted as to
all other claims and parties, as further explained below.
The Motion Is Granted In Part And Denied In Part As To
Santiago's Section 1983 Claims Against The Individual
contends that the arresting officers used extreme and
excessive force to affect his arrest on November 1, 2014,
causing him physical and psychological injuries. To
successfully assert a Section 1983 claim, a plaintiff must
demonstrate that the action (1) occurred “under color
of state law, ” and (2) resulted in the deprivation of
a constitutional or federal statutory right. The parties
do not dispute that the Officers acted under color of state
law, but disagree as to whether any Officer used excessive
force or is otherwise entitled to qualified immunity on
Santiago's Fourth Amendment claim. As explained below,
the Court grants the Motion as to all Section 1983 claims,
with the exception of Santiago's excessive force claim
against Officer Veincent.
Fourth Amendment Excessive Force Principles
Fourth Amendment requires law enforcement officers making an
arrest to use only an amount of force that is objectively
reasonable in light of the circumstances facing them.
Tennessee v. Garner, 471 U.S. 1, 7-8 (1985). To
determine the objective reasonableness of a particular use of
force, courts engage in a three-step inquiry. Glenn v.
Washington Cty., 673 F.3d 864, 871 (9th Cir. 2011);
see Graham v. Connor, 490 U.S. 386, 396 (1989).
First, the court “must assess the severity of the
intrusion on the individual's Fourth Amendment rights by
evaluating ‘the type and amount of force
inflicted.'” Espinosa v. City & Cty. of San
Francisco, 598 F.3d 528, 537 (9th Cir. 2010) (quoting
Miller v. Clark Cty., 340 F.3d 959, 964 (9th Cir.
2003)). “[E]ven where some force is justified, the
amount actually used may be excessive.” Santos v.
Gates, 287 F.3d 846, 853 (9th Cir. 2002). Second, the
court must evaluate the government's interest in the use
of force. Glenn, 673 F.3d at 871 (citing
Graham, 490 U.S. at 396). Finally, a court must
“balance the gravity of the intrusion on the individual
against the government's need for that intrusion.”
Miller, 340 F.3d at 964.
Amendment excessive force claims are evaluated under a
“reasonableness” standard in which
“officers may only use such force as is
‘objectively reasonable' under the
circumstances.” See Jackson v. City of
Bremerton, 268 F.3d 646, 651 (9th Cir. 2001) (quoting
Graham v. Connor, 490 U.S. 386, 397 (1989)); see
also Brosseau v. Haugen, 543 U.S. 194, 197 (2004). The
authority to arrest “necessarily carries with it the
right to use some degree of physical coercion or threat
thereof to effect it.” Graham, 490 U.S at 396.
Police officers “are not required to use the least
intrusive degree of force possible, ” but must act
within a reasonable range of conduct. Marquez v. City of
Phoenix, 693 F.3d 1167, 1174 (9th Cir. 2012) (quotation
marks omitted). The existence of an injury does not
necessarily mean that a plaintiff's constitutional rights
have been violated or that police officers used excessive
force in arresting the plaintiff. Instead, for Fourth
Amendment purposes, “[t]he question is whether the
officers' actions are ‘objectively reasonable'
in light of the facts and circumstances confronting
them.” Graham, 490 U.S. at 397 (emphasis
whether a police officer's use of force was reasonable or
excessive “requires careful attention to the facts and
circumstances of each particular case” and a
“‘careful' balancing of an individual's
liberty with the government's interest in the application
of force.” Santos, 287 F.3d at 854 (quoting
Graham, 490 U.S. at 396). When evaluating the
governmental interest in the use of force at the second step,
courts examine three main factors: (1) the severity of the
crime at issue; (2) whether the suspect poses an immediate
threat to the safety of the officers or others; and (3)
whether he is actively resisting arrest or attempting to
evade arrest by flight. Bryan v. MacPherson, 630
F.3d 805, 825 (9th Cir. 2010).The “most important”
of these factors is whether the suspect posed an
“immediate threat to the safety of the officers or
others.” Smith v. City of Hemet, 394 F.3d 689,
702 (9th Cir. 2005).
Qualified Immunity Framework
immunity is an affirmative defense that “shield[s] an
officer from personal liability when an officer reasonably
believes that his or her conduct complies with the
law.” Pearson v. Callahan, 555 U.S. 223, 244
(2009). The doctrine “protects government officials
‘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.'” Id. at 231 (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). The doctrine
“balances two important interests-the need to hold
public officials accountable when they exercise power
irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform
their duties reasonably.” Id.
determine whether officers are entitled to qualified
immunity, courts employ a two-step analysis. “The
threshold inquiry in a qualified immunity analysis is whether
the plaintiff's allegations, if true, establish a
constitutional violation.” Wilkins v. City of
Oakland, 350 F.3d 949, 954 (9th Cir. 2003) (citing
Saucier v. Katz, 533 U.S. 194, 201 (2001)). If the
alleged conduct would not be considered violative, the
inquiry is at an end and the defense of qualified immunity
applies. See id.
if the plaintiff has satisfied this first step, the court
must decide whether the right at issue was ‘clearly
established' at the time of defendant's alleged
misconduct.” Pearson, 555 U.S. at 231. To be a
clearly established constitutional right, a right must be
sufficiently clear “that every reasonable official
would [have understood] that what he is doing violates that
right.” Reichle v. Howards, 132 S.Ct. 2088,
2093 (2012) (citation and quotation marks omitted).
“[T]he relevant, 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.” Saucier, 533
U.S. at 202; see also Walker v. Gomez, 370 F.3d 969,
978 (9th Cir. 2004). This inquiry “must be undertaken
in light of the specific context of the case, not as a broad
general proposition.” Id. at 201. The Supreme
Court has repeatedly-and recently-“reiterate[d] the
longstanding principle that ‘clearly established
law' should not be defined ‘at a high level of
generality.'” White v. Pauly, 137 S.Ct.
548 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 742 (2011)). Rather, “clearly established law must
be particularized to the facts of the case.”
Id. (internal quotation marks and citation omitted).
Because the answer to the second question may be dispositive,
a court may address it first. See Pearson, 555 U.S.
the version of the facts advanced by Santiago, the party
challenging immunity, the Court turns to the application of
the qualified immunity framework in the context of
Santiago's Fourth Amendment excessive force claim.
Officer Veincent Is Not Entitled To Qualified
detailed below, the Court concludes that Officer Veincent has
not met his burden of establishing that he is entitled to
qualified immunity on Santiago's excessive force claim
under the totality of the circumstances. While there is
certainly some evidence that strongly suggests the
appropriate level of force was used by all officers
concerned, there are disputes of fact that cannot be resolved
through the assessment and weighing of credibility on summary
judgment. Accordingly, the Court denies Officer
Veincent's request for qualified immunity on
Santiago's excessive force claim at this time.
Nature And Quality Of The Intrusion
Court begins its examination of the gravity of the particular
intrusion on Fourth Amendment interests by evaluating the
type and amount of force used. Miller v. Clark Cty.,
340 F.3d 959, 964 (9th Cir. 2003). Santiago avers that
Veincent “grabbed [him] by the wrist[, ] whacked [him]
on [the] arm and slammed [him] to the ground with such
excessive force that [his] two front teeth were knocked-out
from the roots.” Am. Mem. in Opp'n at 6-7 (citing
6/20/17 Santiago Dep. Tr. at 26-27, 31-35). Santiago recalls
that he “was [then] handcuffed, brought to his feet and
[he] began to yell at Officer Veincent in his face because he
wanted to know why [he] was under arrest and why he was being
assaulted.” Am. Mem. in Opp'n at 7. When Santiago
“got into Veincent's face, ” about one foot
away, “Veincent grabbed [Santiago's] wrist and
threw him to the ground again, stepping on plaintiff's
back to make sure he stayed down-plaintiff went unconscious
and sustained injuries to his elbows, wrist, knee and
thigh.” Am. Mem. in Opp'n at 6 (citing 6/20/17
Santiago Dep. Tr. at 39-41; Exs. 3-5).
a suspect's arm or wrist and twisting and pulling to
effectuate an arrest does not typically involve a level of
force found to be unreasonable. Indeed, courts have generally
referred to such force as “relatively minimal”
and “minor.” Donovan v. Phillips, 685 F.
App'x 611, 612-13 (9th Cir. 2017) (officer's use of
“control hold” when plaintiff exited car by
“gripp[ing] her wrist, and pull[ing] her arm downward,
causing Donovan to roll onto the ground” was
“relatively minimal” force); James v. Oakland
Police Dep't, 2016 WL 3230704, at *7 (N.D. Cal. June
13, 2016) (“to take the struggling James to the ground
and hold him while handcuffing him, and holding him on the
ground until the ambulance arrived, were minor uses of force,
most certainly not out of line with the resistance he
offered”); see also Zivojinovich v. Barner,
525 F.3d 1059, 1072 (11th Cir. 2008) (“pull[ing]
[plaintiff's] arm up at an uncomfortable angle while
escorting him out” and “using an uncomfortable
hold to escort an uncooperative and potentially belligerent
suspect is not unreasonable”); Jackson v.
D.C., 83 F.Supp.3d 158, 170 (D.D.C. 2015) (holding that
“the nature and degree of the ‘physical
coercion' the officers used to restrain Plaintiff was
‘not markedly different from what we would expect in
the course of a routine arrest . . . [i]ndeed, the action of
pulling a person out of his or her car, bending the
person's arm behind his or her back, and applying
pressure, as Plaintiff alleges the officers here did, is
regularly found not to be excessive force for effectuating an
surrounding circumstances and quantum of force employed often
vary significantly and can be determinative. See, e.g.,
Rodriguez v. Farrell, 280 F.3d 1341, 1352 (11th Cir.
2002) (“Painful handcuffing, without more, is
not excessive force in cases where the resulting injuries
are minimal.”) (emphasis added); Forrester v.
City of San Diego, 25 F.3d 804, 807 (9th Cir. 1994)
(finding physical pressure administered on limbs in
increasing degrees, resulting in pain, to be a less
significant use of force than physical blows).
Governmental Interest In The Use of Force
next step in the Graham analysis is to evaluate the
government's interests by assessing (a) the severity of
the crime; (b) whether the suspect posed an immediate threat
to the officers' or public's safety; and (c) whether
the suspect was resisting arrest or attempting to escape.
Graham, 490 U.S. at 396.
Officers were responding at 4:15 a.m. to a 911 call
classified as “Active- Domestic, ” see
O'Brien Decl. ¶ 4. When Kaili-Leong first arrived,
he saw Leong's broken mailbox, displaced rock wall and
uprooted tree, and Santiago's damaged truck. He also saw
Santiago looking into the windows of Leong's darkened
residence. As Santiago approached him, Kaili-Leong smelled a
strong odor of alcohol. Kaili-Leong Decl. ¶¶
was charged with, among other crimes, Operating a Vehicle
Under the Influence of an Intoxicant and Attempted Assault in
the Third Degree against Officer Wyatt Kaili-Leong; he pled
guilty to Criminal Trespass. Defs.' Ex. M (12/5/14 Crim.
Compl. in 3DCW-14-003356); Ex. N (8/13/15 Judgement in
3DCW-14-003356). These crimes generally constitute
misdemeanor offenses, and although the Court acknowledges
“that driving under the influence of alcohol is
certainly a serious offense[, ] there is no indication from
the facts [viewed in the light most favorable to Santiago]
that [he] was actually engaged in that
offense” at the time he was arrested. Koiro v. Las
Vegas Metro. Police Dep't, 69 F.Supp.3d 1061, 1069
(D. Nev. 2014), aff'd, 671 F. App'x 671 (9th
Cir. 2016) (emphasis added).
to the most important factor, the evidence, when construed in
the light most favorable to Santiago, does not clearly
support a finding that he “posed an immediate threat to
the safety of the officers or others.” Graham,
490 U.S. at 396. Throughout the course of events, Santiago
was never in the presence of Leong. She did not exit the
residence nor did he enter. Santiago was therefore not in a
proximate position to cause her harm, even if he wanted to,
and certainly not after the officers arrived. Further, in
Santiago's retelling, after climbing back over the rock