NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 22 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRINITA FARMER, No. 20-17008

Plaintiff-Appellee, D.C. No. 2:18-cv-00860-GMN-VCF v.

KENNETH LOPERA, MEMORANDUM*

Defendant-Appellant,

and

LAS VEGAS METROPOLITAN POLICE

DEPARTMENT; et al.,

Defendants.

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding

Argued and Submitted July 7, 2021 Pasadena, California

Before: D.M. FISHER,** WATFORD, and BUMATAY, Circuit Judges. Partial Concurrence and Partial Dissent by Judge BUMATAY

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. Page 2 of 3

Kenneth Lopera appeals from the district court’s interlocutory order denying

his motion for summary judgment, which was predicated on the defense of

qualified immunity. Because a jury could conclude that Lopera violated Trinita

Farmer’s clearly established Fourteenth Amendment right to familial association

with her deceased son, Tashii Farmer, we affirm.

Farmer’s claim is governed by one of two standards—deliberate-

indifference or purpose-to-harm—subject to the determination of whether “actual

deliberation [was] practical” during the incident. A.D. v. California Highway

Patrol, 712 F.3d 446, 453 (9th Cir. 2013) (quoting Wilkinson v. Torres, 610 F.3d

546, 554 (9th Cir. 2010)). We need not decide which standard governs because a

jury could find a violation of clearly established law even under the more

demanding purpose-to-harm standard. As a result, Lopera is not entitled to

summary judgment based on qualified immunity.

The district court correctly concluded that a jury could find that Lopera

acted with a purpose to harm in violation of the Fourteenth Amendment, and that

the law was clearly established at the time of the incident. Under the purpose-to-

harm standard, Farmer must establish that Lopera acted with “a purpose to harm[,]

unrelated to legitimate law enforcement objectives.” S.R. Nehad v. Browder, 929

F.3d 1125, 1139 (9th Cir. 2019) (alteration in original) (quoting A.D., 712 F.3d at

453). A purpose to harm can be established even without evidence of bad intent Page 3 of 3

separate from the use of force because, in some situations, “a use of force might be

so grossly and unreasonably excessive that it alone could evidence a subjective

purpose to harm.” Id. at 1140. Farmer presented evidence that could demonstrate

Lopera excessively tased Tashii, repeatedly struck him, and continued to apply the

neck restraint despite the fact that Tashii had been rendered unconscious, all in

violation of Las Vegas Metropolitan Police Department policy. Farmer also

presented evidence that Lopera continued to apply the neck restraint despite twice

being told to “let him go” by a superior officer, and that Lopera said he had “rear-

naked[ed] [Tashii’s] ass.” From this a jury could conclude that Lopera acted with

a purpose to harm and without a legitimate law enforcement objective, as an

officer lacks such an objective when he “uses force against a clearly harmless or

subdued suspect.” Foster v. City of Indio, 908 F.3d 1204, 1211 (9th Cir. 2018).

This conduct would constitute a violation of clearly established law since, at

the time of the incident, it was clearly established that a police officer who kills a

suspect while acting with a purpose to harm unrelated to a legitimate law

enforcement objective violates the Fourteenth Amendment. See id.; A.D., 712 F.3d

at 454.

AFFIRMED.

FILED

JUL 22 2021

Trinita Farmer v. Kenneth Lopera, No. 20-17008

MOLLY C. DWYER, CLERK

BUMATAY, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS

I agree with the court that Officer Lopera is not entitled to summary

judgment on his qualified-immunity defense at this time. Given that Officer

Lopera failed to release the chokehold on Tashii Farmer even after being directed

to do so by other officers, a jury could find that Lopera acted with a purpose to

harm in violation of clearly established law. I write separately because the court

suggests that the deliberate-indifference standard may also govern here. Our

precedent dictates that it does not.

The deliberate-indifference standard applies only to circumstances when

“actual deliberation is practical.” A.D. v. California Highway Patrol, 712 F.3d

446, 453 (9th Cir. 2013) (simplified). In this context, we are not to interpret

deliberation “in the narrow, technical sense.” Wilkinson v. Torres, 610 F.3d 546,

554 (9th Cir. 2010). Indeed, the Supreme Court has “rejected the deliberate

indifference standard even in cases where an officer giving chase could have

deliberated while pursuing the suspect.” Id.

On the other hand, when an officer must make “split-second” decisions in a

“rapidly evolving” situation, the purpose-to-harm standard applies. Id. An officer

violates the Constitution in such situations when acting with a purpose “unrelated

to legitimate law enforcement objectives,” like bullying or exacting revenge on a

suspect. Id. In this case, Trinita Farmer’s claim primarily arises from Officer Lopera’s

alleged prolonged use of a chokehold on Tashii Farmer. The chokehold lasted no

more than 73 seconds. We have applied only the purpose-to-harm standard to

similar facts in the past. See, e.g., Zion v. County of Orange, 874 F.3d 1072, 1077

(9th Cir. 2017); Jones v. Las Vegas Metro Police Department, 873 F.3d 1123,

1133 (9th Cir. 2017). I therefore would affirm the district court’s purpose-to-harm

ruling and reverse its deliberate-indifference ruling.