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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 DEVIN MICHAEL RYAN, CASE NO. C19-753 MJP 11 Plaintiff, ORDER ADOPTING REPORT AND RECOMMENDATION 12 v. 13 CORRECTIONS DEPUTY ADAM HANSEN, et al., 14 Defendants. 15 16 17 THIS MATTER comes before the Court on Defendants’ Objections (Dkt. No. 40) to the 18 Report and Recommendation of the Honorable Mary Alice Theiler, United States Magistrate 19 Judge (Dkt. No. 38). Having reviewed the Report and Recommendation, the Objections, and all 20 related papers, the Court ADOPTS the Report and Recommendation. 21 Background 22 The relevant facts and procedural background are set forth in detail in the Report and 23 Recommendation. (Dkt. No. 38.) Magistrate Judge Theiler recommended dismissing Defendant 24 1 Snohomish County, but concluded that Defendant Adam Hansen was not entitled to summary 2 judgment on Plaintiff’s excessive force claim nor was he entitled to qualified immunity. (Dkt. 3 No. 38 at 11-12, 13-14, 16.) Defendant Hansen now objects to the Report and Recommendation, 4 arguing that Magistrate Judge Theiler overlooked the second prong of the qualified immunity

5 analysis: whether Plaintiff’s right to be free from excessive force under the circumstances was 6 clearly established in 2017. (Dkt. No. 40.) For the reasons discussed infra, the Court finds that it 7 was. 8 Discussion 9 I. Legal Standard 10 Under Federal Rule of Civil Procedure 72, the Court must resolve de novo any part of the 11 Magistrate Judge’s Report and Recommendation that has been properly objected to and may 12 accept, reject, or modify the recommended disposition. Fed. R. Civ. P. 72(b)(3); see also 28

(b)(1). 14 II. Defendant’s Objection

15 Defendant Hansen contends that he is entitled to qualified immunity because it was not 16 “clearly established” at the time of the incident that “a controlled take down, or the use of the 17 lowest level of force after verbal commands,” was a constitutional violation when it is 18 undisputed that Plaintiff continued to “be verbal” after he was further restrained. (Dkt. No. 40 at 19 5-6.) The Report and Recommendation found that there was a significant dispute of fact 20 regarding Plaintiff’s constitutional claim that Defendant Hansen used excessive force and 21 because Plaintiff “both denies and provides evidence supporting his contention that, while he 22 was verbal, he did not resist,” Defendant Hansen was therefore not entitled to qualified 23 immunity. (Dkt. No. 38 at 14.)

24 1 Under the doctrine of qualified immunity, state officials “performing discretionary 2 functions [are protected] from liability for civil damages insofar as their conduct does not violate 3 clearly established statutory or constitutional rights of which a reasonable person would have 4 known.” Harlow v. Fitzgerald,

(1982). In determining whether qualified

5 immunity applies, the Court considers whether the plaintiff alleged sufficient facts to make out a 6 violation of a constitutional right, and whether the constitutional right was clearly established at 7 the time of the alleged violation. Saucier v. Katz,

, 201 (2001), modified by 8 Pearson v. Callahan,

(2009) (explaining “that, while the sequence set forth [in 9 Saucier] is often appropriate, it should no longer be regarded as mandatory”). 10 In considering whether a right is clearly established, “[t]he contours of the right must be 11 sufficiently clear that a reasonable official would understand that what [the official] is doing 12 violates that right.” Anderson v. Creighton,

(1987). In this analysis, the court 13 applies an objective standard; “the defendant’s subjective understanding of the constitutionality 14 of his or her conduct is irrelevant.” Clairmont v. Sound Mental Health,

(9th

15 Cir. 2011) (internal quotation marks and quoted source omitted). 16 Here, Defendant contends that “the right of a resisting detainee to be free from a 17 controlled take-down maneuver where an officer is facing challenging circumstances” was not 18 clearly established at the time of the incident. (Dkt. No. 40 at 7.) But Defendant’s contention 19 requires the Court to ignore substantial evidence demonstrating that Plaintiff did not pose a threat 20 to Defendant at the time of the takedown. When viewing the facts in the light most favorable to 21 Plaintiff, as the Court must on summary judgment, Plaintiff posed no threat to the safety of the 22 officers and showed no resistance at the time Defendant conducted the takedown. Instead, when 23 Defendant threw Plaintiff to the floor and slammed his knee in to Plaintiff’s lower back—

24 1 causing Plaintiff to scream in pain—Plaintiff’s hands were cuffed to his waist, he was pinned 2 against the wall and the video evidence shows that Plaintiff was completely motionless. (Dkt. 3 No. 25 at 2-3; Dkt. No. 32 (video surveillance).) Further, the officer standing closest to Plaintiff 4 did not see Plaintiff “as a threat at all” and “didn’t know why Hansen felt he needed to remove

5 Ryan.” (Dkt. No. 25, Ex. C at 18-21.) 6 The Ninth Circuit has long held that “[f]orce is excessive when it is greater than is 7 reasonable under the circumstances.” Santos v. Gates,

, 854 (9th Cir. 2002). 8 Further, as early as 1989 the Supreme Court held that “force is only justified when there is a 9 need for force.” Blankenhorn v. City of Orange,

(9th Cir. 2007) (citing 10 Graham v. Connor,

(1989)). It has therefore been “clearly established” for 11 decades that no reasonable officer would apply additional force once a detainee was subdued and 12 posed no threat, as the facts favorable to Plaintiff show in this case. 13 Further, the cases cited by Defendant do not support qualified immunity here. In his 14 Motion for Summary Judgment, Defendant cited Shafer v. Cty. of Santa Barbara,

,

15 1117 (9th Cir. 2017), cert. denied sub nom. Shafer v. Padilla,

,

16 (2018) as an analogous case, where the court found that the officer did not violate clearly 17 established law when he increased his use of force from “verbal commands, to an arm grab, and 18 then a leg sweep maneuver, when a misdemeanant refuses to comply with the officer's orders and 19 resists, obstructs, or delays the officer in his lawful performance of duties such that the officer 20 has probable cause to arrest him in a challenging environment.” (Dkt. No. 34 at 11-12.) But the 21 Court agrees with Magistrate Judge Theiler’s reasoning that Shafer is distinguishable “in at least 22 one critical respect”: “In Shafer, a jury found the officer had probable cause to arrest where the 23

24 1 misdemeanant not only refused to comply with an order, but also resisted, obstructed, or delayed 2 the officer in performing his duties.” (Dkt. No. 38 at 13.) 3 In his Objections, Defendant cites several cases in addition to Shafer that he did not cite 4 in his motion for summary judgment, none of which support granting qualified immunity where

5 an officer uses excessive force against a restrained, motionless pretrial detainee. (See Dkt. No. 6 40 at 7-8 (citing Santos v. Gates,

(9th Cir. 2002) (finding that question of 7 material fact existed where officers “gang-tackled” the Plaintiff as he assumed a “passive” 8 position during arrest); Blankenhorn v. City of Orange,

(9th Cir. 2007) 9 (finding that no reasonable officer would have believed that hobble restraints on the Plaintiff’s 10 wrists and ankles, in addition to handcuffs were necessary to restrain “a relatively calm trespass 11 suspect”); Jackson v. City of Bremerton,

, 651-53 & n.5 (9th Cir. 2001) (finding no 12 constitutional violation where the plaintiff’s hair was sprayed with a chemical irritant and her finger 13 broken during arrest when a 30-50 person crowd was surrounding and attacking the arresting officers 14 and plaintiff was interfering with their arrest of her son). As the Supreme Court explained in Graham

15 so many years ago, these cases stand for the proposition that force is excessive where unnecessary 16 and appropriate where necessary to protect the officer’s or the public’s safety. Graham v. Connor, 17

. None of these cases support Defendant’s argument that “the constitutionality of the 18 conduct in question was not clearly established at the time of the incident.” (Dkt. No. 40 at 9.) Finally, Defendant notes that there were dissenting opinions to Sergeant Ball’s 19 investigative report that found Defendant had used excessive force, arguing that these opinions 20 show that reasonable officers could disagree in this case. (Dkt. No. 40 at 9.) While these 21 opinions may be a good fact for Defendant, the Court is required to view the evidence in the light 22 most favorable to Plaintiff at this stage, and finds that Plaintiff has submitted evidence 23 24 1 supporting the inference that Defendant used force that was greater than reasonable under the 2 circumstances. 3 Conclusion 4 Viewing the facts in the light most favorable to Plaintiff, the Court finds that he has 5 established that Defendant used excessive force when tackling him where Plaintiff was 6 completely restrained and not moving. Because it has been clearly established for at least 30 7 years that force is excessive when it is greater than reasonable under the circumstances, 8 Defendant is not entitled to qualified immunity. The Report and Recommendation is 9 ADOPTED. 10

11 The clerk is ordered to provide copies of this order to all counsel. 12 Dated August 4, 2020.

A 13

14 Marsha J. Pechman 15 United States Senior District Judge

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