Nava

Opinion by Judge SKOPIL; Concurrence by Judge FLETCHER.

We examine in this appeal the propriety of the district court’s entry of a permanent injunction preventing the California Highway Patrol (“CHP”) from authorizing its officers to apply the carotid hold, a type of ehokehold used to subdue resisting suspects, unless application of the ehokehold is necessary to prevent death or serious bodily harm to an officer or third party.

Facts and Prior Proceedings

On April 15, 1992, Randolph Bennett was stopped by CHP officer James Williams for illegally walking on the shoulder of Highway 580 in Pleasanton, California. As Officer Williams attempted to remove Bennett from the shoulder of the road, a struggle ensued and Williams alerted his dispatcher that he needed assistance. CHP officer Craig Whitty arrived on the scene a few moments later and joined the struggle. To subdue Bennett, Whitty endeavored to apply a carotid hold. After the hold had been applied for several seconds, Bennett lost consciousness. When paramedics arrived, Bennett did not respond to emergency treatment, and he was later pronounced dead at the San Ramon Medical Center.

On April 13, 1993, Bennett’s son, Scott…

specially concurring:

Because I read City of Los Angeles v. Lyons, 461 U.S. 95 , 103 S.Ct. 1660 , 75 L.Ed.2d 675 (1983), to deprive Nava of standing to seek an injunction, I cannot join in the majority’s opinion. I concur specially in the result only.

The majority acknowledges that unless we credit the rationales of Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir.1983), Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984), and Smith v. City of Fontana, 818 F.2d 1411 (9th Cir.1987), under Lyons , Nava lacks standing to seek injunctive relief, since he has not demonstrated that he likely will suffer future harm from the CHP’s misuse of the carotid hold. See Lyons, 461 U.S. at 105 , 103 S.Ct. at 1666-67 (holding that plaintiffs standing to seek injunctive relief “depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers”). I cannot reconcile those cases with Lyons . We should take this case en bane to decide whether the exception to Lyons we have carved out in Giles and its progeny should remain the law of our circuit.