Santos

dissenting.

With all due sympathy for Mr. Santos and his mysterious injury, I respectfully dissent from the Court’s opinion and its failure to abide by the latest pronouncements of the Supreme Court on use of force cases involving police officers.

The Supreme Court tells us that “[i]n a suit against an officer for an alleged violation of a constitutional right, the requisites of a qualified immunity defense must be considered in proper sequence.” Saucier v. Katz, 533 U.S. 194 , 200, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). The trial court should make a ruling on immunity “early in the proceedings” because qualified immunity is “an immunity from suit rather than a mere defense to liability.” Id. at 200-01, 121 S.Ct. 2151 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985)) (emphasis in original). The initial inquiry is whether the facts alleged in the light most favorable to the plaintiff demonstrate that the officers violated a constitutional right. Id. at 201, 121 S.Ct. 2151 . If no constitutional right has been abridged, the inquiry ends. Only “if a violation could be made out on a favorable view of the parties’ submissions” does the trial…

On December 12, 1997, appellant Kam Santos encountered two Los Angeles Po *848 lice Department (LAPD) officers, Kimberly Allen and James Lee. Shortly thereafter, he was diagnosed with a broken back. Santos brought this action against the officers pursuant to 42 U.S.C. § 1983 , alleging that his injury was caused by the police officers’ use of excessive force. A three-day trial was held, and at the conclusion of the plaintiffs case-in-ehief, the district judge granted judgment as a matter of law in favor of the defendants. The issue on appeal is whether the jury should have been permitted to determine if the police officers were hable for Santos’s injury.

I. BACKGROUND

Kam Santos is a troubled individual who has a long history of psychological problems, difficulties with substance abuse, and brushes with the law. He was diagnosed as a paranoid schizophrenic in 1982. He takes medication to control his mental illness, and he has been hospitalized more than fifteen times for his condition.

A. Santos’s Account of Events

On the morning of December 12, 1997, Santos ate breakfast at the home of his friend Herb, who lived at the William Penn Hotel, located at 8th Street and Alvarado in…