John Kita v. City of Seattle

MEMORANDUM *

Kevin Oshikawa-Clay (“Clay”) interlocu-torily 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 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (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…

concurring:

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 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (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…

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NOT FOR PUBLICATION JUN 07 2012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…