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Santiago v. State

United States District Court, D. Hawaii

January 9, 2018

JONATHAN KIMO SANTIAGO, Plaintiff,
v.
STATE OF HAWAI‘I, COUNTY OF HAWAI‘I - HAWAI‘I POLICE DEPARTMENT, BRYSON MIYOSE, and KIMO VEINCENT, in their official and individual capacities, Defendants.

          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 CLAIMS

          Derrick K. Waston United States District Judge

         INTRODUCTION

         Defendant 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.[1] 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.

         STANDARD OF REVIEW

         Local 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).

         A “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)).

         DISCUSSION

         I. The Court Did Not Err In Denying Veincent Qualified Immunity Based Upon Clearly Established Fourth Amendment Law

         As a 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.[2] This was not the summary judgment record relied upon by the Court and does not now constitute a basis for reconsideration.[3]

         Turning 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.

         The 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.”);[4] 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.

         The 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 ...


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