FILED

NOT FOR PUBLICATION JUN 07 2012

MOLLY C. DWYER, CLERK

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

FOR THE NINTH CIRCUIT

JOHN KITA, a single man, No. 11-35392

Plaintiff - Appellee, D.C. No. 2:10-cv-00160-JCC

v.

MEMORANDUM *

CITY OF SEATTLE, a municipal corporation,

Defendant,

and

K.V. OSHIKAWA-CLAY, a police officer

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

Argued and Submitted April 12, 2012 Seattle, Washington

Before: D.W. NELSON, TASHIMA, and CALLAHAN, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Kevin Oshikawa-Clay (“Clay”) interlocutorily appeals the district court’s

order denying his motion for summary judgment based on qualified immunity from

John Kita’s claim of excessive force pursuant to 42 U.S.C. § 1983. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

1. A reasonable fact-finder could conclude, taking the facts and inferences

therefrom in the light most favorable to Kita, that Clay’s use of force was

objectively unreasonable and therefore constitutionally excessive. See Graham v.

Connor, 490 U.S. 386, 396–97 (1989). Preliminarily, such a fact-finder could find

that Clay’s delivery of a blow to the back of Kita’s head, followed by additional

strikes and maneuvers, together constituted a more significant use of force than

pain compliance techniques. See Forrester v. City of San Diego, 25 F.3d 804,

807–808 (9th Cir. 1994); cf. Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th

Cir. 2007).

Meanwhile, a rational fact-finder could conclude that the government’s

countervailing interests provide little basis, if any, for this quantum of force. First,

a fact-finder reasonably could find that Kita’s alleged offense – pulling his

girlfriend and falling together to the ground – was modest. Cf. Smith v. City of

Hemet, 394 F.3d 689, 702 (9th Cir. 2005). Second, viewing the facts in Kita’s

favor, “[t]here is no indication in the record that after [Kita] removed his hand[]

-2- from his pocket[] there was any reason to believe that he possessed any weapon or

posed any immediate threat to the safety of the officers or others.” Id. at 702.

Third, despite Clay’s assertion that Kita was resisting, at this stage we must accept

Kita’s opposite claim.

Finally, a reasonable fact-finder could find that the mere presence of a

domestic dispute does not militate in Clay’s favor, because Clay arrived at the

scene after the domestic dispute was over, the couple was already separated, and

Kita was not, we must assume, acting in a threatening manner. See Mattos v.

Agarano, 661 F.3d 433, 450 (9th Cir. 2011) (en banc). In sum, weighing the force

used against the governmental interests at stake, a rational jury could conclude that

Clay’s use of force was unreasonable.

2. Kita’s right to be free from such force was clearly established at the time of

Clay’s conduct. Blankenhorn, 485 F.3d at 481. Because a rational fact-finder

could conclude that Clay violated Kita’s clearly established constitutional rights,

the district court did not err in denying qualified immunity.

3. In light of our holding, we need not address Kita’s state law claims and

municipal liability claims.

For the above reasons, the order of the district court is

AFFIRMED.

-3-

FILED

Kita v. City of Seattle, No. 11-35392 JUN 07 2012

MOLLY C. DWYER, CLERK

CALLAHAN, Circuit Judge, concurring: U .S. C O U R T OF APPE ALS

I concur. I agree that a rational fact-finder could conclude that Officer

Clay’s use of force was unreasonable. However, I think the majority’s dicta, which

characterizes Officer Clay’s actions, is inappropriate. In my view, the disposition

unnecessarily suggests the resolution of several contested issues of fact. Mem.

Dispo. at 2–3. As the majority notes, we view the facts and inferences in the light

most favorable to Kita at this stage of the litigation. See Graham v. Connor, 490

U.S. 386, 396 (1989). Here, viewing the video footage and the totality of the

circumstances before the district court when it denied qualified immunity, Officer

Clay has not demonstrated that he is entitled to qualified immunity as a matter of

law. We should not go beyond this determination because this panel is not the

ultimate fact-finder and cannot know what further evidence may be presented at

trial. Anything beyond this determination should not be treated as binding on the

parties or law of the case. Accordingly, while I vote to affirm the judgment, I take

exception to the dicta in the memorandum disposition that goes beyond this scope

to suggest that Officer Clay in fact used excessive force against Kita.

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