Shannon Kanda v. Wayne Longo

FILED

NOT FOR PUBLICATION MAY 25 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

SHANNON KANDA, No. 10-35746

Plaintiff - Appellant, DC No. CV 09-404 EJL

v.

MEMORANDUM *

WAYNE LONGO; CITY OF COEUR

D’ALENE; COEUR D’ALENE POLICE

DEPARTMENT; JOHN DOES 1-10;

JANE DOES 1-10; GREGORY MOORE,

Officer; JONATHAN CANTRELL, Officer,

Defendants - Appellees.

Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding

Submitted January 11, 2012 Seattle, Washington Submission Vacated, Argued and Resubmitted March 21, 2012 San Francisco, California

Before: TASHIMA, GRABER, and RAWLINSON, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Plaintiff Shannon Kanda appeals the district court’s order granting summary

judgment to Defendants in her 42 U.S.C. § 1983 action alleging that Coeur d’Alene

police officers Gregory Moore and Jonathan Cantrell used excessive force in

effectuating her arrest.…

dissenting:

I respectfully dissent.

In my view the officers are entitled to qualified immunity. It is undisputed that the officers were justified in arresting Kanda and handcuffing her and that she had committed a battery. A reasonable officer would not necessarily know that a take-down arrest, as distinct from a standing arrest, was excessive or that a take-down on a stair landing was unreasonably dangerous. Kanda was tall, young, and big and had taken a swing at one of the officers (albeit unsuccessfully). Being drunk could have made her more dangerous, rather than less dangerous, to the officers. Our cases counsel against drawing so fine a line as police respond to an *106 evolving situation. For that reason, I would affirm the district court’s decision.

MEMORANDUM *

Plaintiff Shannon Kanda appeals the district court’s order granting summary judgment to Defendants in her 42 U.S.C. § 1983 action alleging that Coeur d’Alene police officers Gregory Moore and Jonathan Cantrell used excessive force in effectuating her arrest. Kanda was injured after the officers took her down to the ground on a stairwell landing, hitting her face against a metal handrail with some force in the process. The district court held that the officers were entitled to qualified immunity because, although a reasonable jury could find that the force used against Kanda was excessive, the officers did not violate clearly established law when they mistakenly used more force than intended.

We have jurisdiction under 28 U.S.C. § 1291 . We review the district court’s grant of summary judgment de novo, considering disputed material facts in the light most favorable to the non-moving party. Mattos v. Agarano, 661 F.3d 433, 439 (9th Cir.2011) (en banc), certs. denied, U.S. -, 132 S.Ct. 2682 , 183 L.Ed.2d 45 , - U.S. -, 132 S.Ct. 2681 , 183 L.Ed.2d 62 , — U.S. -, 132 S.Ct. 2682 , 183 L.Ed.2d 45 , - U.S. -, 132 S.Ct. 2684 , 183 L.Ed.2d 45 (2012) (Nos. 11-1032, 11-898,…