United States District Court, D. Hawaii
ORDER DENYING DEFENDANT KIMO VEINCENT'S MOTION
FOR RECONSIDERATION OF ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON ALL
Derrick K. Waston United States District Judge
Veincent moves for reconsideration of the Court's
December 20, 2017 Order Granting in Part and Denying in Part
Defendants' Motion for Summary Judgment on All Claims
(“12/20/17 Order”) based upon manifest error of
law. Dkt. No. 128. Veincent contends that the Court erred in
denying him qualified immunity, incorrectly finding that the
force used to arrest Santiago was unconstitutional and in
violation of clearly established law at the time of the
incident. Vincent also asserts that he had no duty to retreat
to avoid what he refers to as Santiago's assault. Because
no manifest error is evident, Veincent's Motion for
Reconsideration is DENIED.
Rule 60.1 allows a party to file a motion for reconsideration
of an interlocutory order. Reconsideration is permitted only
where there is “(a) Discovery of new material facts not
previously available; (b) Intervening change in law; [or] (c)
Manifest error of law or fact.” LR 60.1; see Sierra
Club, Hawaii Chapter v. City & Cty. of Honolulu, 486
F.Supp.2d 1185, 1188 (D. Haw. 2007).
“motion for reconsideration must accomplish two goals.
First, a motion for reconsideration must demonstrate reasons
why the court should reconsider its prior decision. Second, a
motion for reconsideration must set forth facts or law of a
strongly convincing nature to induce the court to reverse its
prior decision.” Donaldson v. Liberty Mut. Ins.
Co., 947 F.Supp. 429, 430 (D. Haw. 1996). Mere
disagreement with a previous order is an insufficient basis
for reconsideration, and reconsideration may not be based on
evidence and legal arguments that could have been presented
at the time of the challenged decision. See Haw.
Stevedores, Inc. v. HT & T Co., 363 F.Supp.2d 1253,
1269 (D. Haw. 2005). “Whether or not to grant
reconsideration is committed to the sound discretion of the
court.” White v. Sabatino, 424 F.Supp.2d 1271,
1274 (D. Haw. 2006) (quoting Navajo Nation v.
Confederated Tribes & Bands of the Yakima Indian
Nation, 331 F.3d 1041, 1046 (9th Cir. 2003)).
Court Did Not Err In Denying Veincent Qualified Immunity
Based Upon Clearly Established Fourth Amendment Law
preliminary matter, the Court rejects Veincent's
mischaracterization of the summary judgment record. In
determining Defendant's Motion for Summary Judgment, the
Court adopted the version of the facts advanced by Santiago,
the party challenging the application of qualified immunity.
Veincent's Motion for Reconsideration, however,
impermissibly reframes the record, referring several times to
Santiago as “drunk, ” “aggressive, ”
and as posing a “risk to the officers'
safety.” See Mem. in Supp. at 3, Dkt. No.
128-1. This was not the summary judgment record
relied upon by the Court and does not now constitute a basis
to his first argument, Veincent asserts that
“[r]econsideration is warranted because the Court
erroneously denied qualified immunity finding the law was
clearly established at the time of the incident. In doing so,
this Court relied upon a case which was issued after
the incident as well as cases outside of the Ninth Circuit,
and ignored other Ninth Circuit case law which found such
force was minimal and constitutional.” Mem. in Supp. at
2, Dkt. No. 128-1. Despite Veincent's present quarrels
with the cases relied upon in the Court's 12/20/17 Order,
however, he offers “no law of a strongly convincing
nature to induce the court to reverse its prior
decision.” Donaldson, 947 F.Supp. at 430.
12/20/17 Order stated, in relevant part:
Viewing the evidence in the light most favorable to Santiago,
the Court finds that the Officers had “fair
warning” that the force used “was
constitutionally excessive even absent a Ninth Circuit case
presenting the [identical] set of facts.” Drummond
ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1061
(9th Cir. 2003). A reasonable police officer could not
properly believe that the use of the level of force-as
alleged by Santiago-would not violate a clearly established
constitutional right. See Gravelet-Blondin v.
Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013) (“The
right to be free from the application of non-trivial force
for engaging in mere passive resistance was clearly
established prior to 2008.”) (citations
omitted); see also Westfahl v. D.C., 75 F.Supp.3d
365, 374 (D.D.C. 2014) (“Striking a passive arrestee to
compel affirmative compliance is a clearly established
constitutional violation.”); Millbrooke v.City of
Canby, 2013 WL 6504680, at *10 (D. Or. Dec. 11, 2013)
(“A reasonable officer should know that the Fourth
Amendment prohibits him from taking a civilian violently to
the ground without provocation[.]”).
12/20/17 Order at 37-38, Dkt. No. 123. Veincent takes issue
with the particular cases cited by the Court in this
paragraph to demonstrate that the law was clearly established
at the time of the incident. The Court, however, did not err.
Court acknowledged in its Order that Santiago has the burden
under the second prong of qualified immunity to point to case
law indicating that the right allegedly violated was clearly
established. And the Court also acknowledged that
Santiago's pleadings fell short of identifying a specific
case to satisfy the standard required by White v.
Pauly, 137 S.Ct. 548 (2017). See 12/20/17 Order
at 38 n.15.The Court notes that, “[e]xcept in the rare
case of an ‘obvious' instance of constitutional
misconduct . . . [Santiago] must identify a case
where an officer acting under similar circumstances as
[Veincent] was held to have violated the Fourth
Amendment.” Sharp v. Cty. of Orange, 871 F.3d
901, 911 (9th Cir. 2017) (quoting White, 137 S.Ct.
at 552). “To achieve that kind of notice, the prior
precedent must be controlling-from the Ninth Circuit or
Supreme Court-or otherwise be F.3d 513, 525 (7th Cir. 2012);
Meirthew v. Amore, 417 Fed.Appx. 494, 499 (6th Cir.
2011). Accordingly, Officers Cory and Robinson are not
entitled to qualified immunity and Westfahl's claims
against them can proceed. Westfahl, 75 F.Supp.3d at
374. embraced by a ‘consensus' of courts outside
the relevant jurisdiction.” Id. (internal
citation and quotation omitted); cf. Tarabochia v.
Adkins, 766 F.3d 1115, 1125 (9th Cir. 2014) (“We
begin our inquiry by looking to binding precedent[;] [i]f the
right is ...