Tucker v. Las Vegas Metropolitan Police Department

MEMORANDUM *

Keith Tucker (“Keith”) died following an altercation with two police officers, Defendants Patrick Denney and Mark Hutchinson. Keith’s father, Plaintiff Sanford Tucker (“Sanford”) brought a wrongful death civil rights action under 42 U.S.C. § 1983 , claiming that the force used by Officers Denney and Hutchinson deprived Keith of his right to be free from excessive force, as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution, and caused his death. 1 The officers brought this interlocutory appeal from the district court’s denial of their motion for summary judgment on grounds of qualified immunity. We affirm in part, reverse in part, and remand.

As the parties moving for summary judgment, the officers bear “the burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material ... lodged must be viewed in the light most favorable” to Sanford. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 , 90 S.Ct. 1598 , 26 L.Ed.2d 142 (1970). Summary judgment “ ‘should be granted sparingly’ ” in excessive force cases, because the excessive force inquiry often “ ‘requires a jury to sift through disputed…

concurring:

I concur in the Court’s disposition insofar as it deems summary judgment inappropriate in this ease.

Excessive force cases involving a deceased victim “pose a particularly difficult problem [at the summary judgment stage] because the officer defendant is often the only surviving eyewitness.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994). I am *630 bound by our precedent, which clearly says the court cannot simply take officers at their word. Rather, the court must “carefully examine all the evidence in the record ... to determine whether the officer’s story is internally consistent and consistent with other known facts.” Id. (citing Hopkins v. Andaya, 958 F.2d 881, 885-88 (9th Cir.1992); Ting v. United States, 927 F.2d 1504, 1510-11 (9th Cir.1991)). That is why most jurisdictions conduct a public inquest into deaths like these in police custody. See Nev.Rev.Stat. § 259.050.

In this case, there appear to be inconsistencies in the testimonies of Officers Denney and Hutchinson. While Officer Hutchinson stated that he placed light pressure on Tucker’s back while Tucker was prone and handcuffed, Officer Denney stated that Hutchinson never placed pressure on Tucker’s…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT MAR 02 2012

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

SANFORD TUCKER, individually, and as No. 09-17141 Special Administrator of the Estate of Keith Tucker, and as Guardian ad Litem of D.C. No. 2:05-cv-01216-LDG-RJJ Frans Kai Mann Tucker, a minor,

Plaintiff - Appellee, MEMORANDUM*

v.

LAS VEGAS METROPOLITAN POLICE

DEPARTMENT; PATRICK DENNEY,

Officer; MARK HUTCHINSON, Officer,

Defendants - Appellants,

and

TASER INTERNATIONAL, INC.; BILL

YOUNG, Sheriff, individually and in his official capacity,

Defendants.

Appeal from the United States District Court for the District of Nevada Lloyd D. George, Senior District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Argued and Submitted February 14, 2012 San Francisco, California

Before: GRABER, BERZON, and TALLMAN, Circuit Judges.

Keith Tucker (“Keith”) died following an altercation with two police

officers, Defendants Patrick Denney and Mark Hutchinson. Keith’s…