                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 15 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

IMA ILIU FLORES ZELAYA, individually            No.   16-15316
and as Special Co-Administrator on behalf
of Estate of Luis Solano and ELIA               D.C. No.
DELCARMEN SOLANO PATRICIO,                      2:13-cv-01181-JAD-CWH
individually and as Special Co-
Administrator on behalf of Estate of Luis
Solano,                                         MEMORANDUM *

                Plaintiffs-Appellees,

 v.

LAS VEGAS METROPOLITAN POLICE
DEPARTMENT; et al.,

                Defendants-Appellants,

and

BILL GILLESPIE, Sheriff and
NAPHCARE, INC.,

                Defendants.

                   Appeal from the United States District Court
                             for the District of Nevada
                   Jennifer A. Dorsey, District Judge, Presiding

                     Argued and Submitted February 16, 2017
                            San Francisco, California

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: TASHIMA and HURWITZ, Circuit Judges, and ADELMAN,** District
Judge.

      After an arrest on drug charges, Luis Jersain Solano was held in the psychiatric

module of the Clark County Detention Center. During a free-time period, Solano

began pacing in the day room and appeared agitated. Las Vegas Metropolitan Police

Department (“LVMPD”) officers responded and attempted to restrain Solano. After

their initial attempts to do so were unsuccessful, four officers took Solano to the

ground and applied handcuffs. For at least 90 seconds after Solano was handcuffed

and had stopped resisting, three officers continued to pin him to the ground with

their bodies. When the officers got off Solano, he was unconscious. He died soon

thereafter.

      In this suit, Solano’s estate and family allege claims under 42 U.S.C. § 1983

and state law against the LVMPD officers involved in the incident. The district court

denied the officers’ motion for summary judgment asserting qualified immunity with

respect to the § 1983 claims and discretionary immunity with respect to the state law

claims. The officers appealed that ruling. We have jurisdiction over the qualified

immunity appeal as an appealable final decision, see Kwai Fun Wong v. United




      **
             The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.

                                          2
States, 373 F.3d 952, 960 (9th Cir. 2004), and the state law discretionary immunity

appeal, see Liberal v. Estrada, 632 F.3d 1064, 1075 (9th Cir. 2011). We affirm.

      1. A reasonable jury could find that the officers’ use of force was objectively

unreasonable and violated the Fourth Amendment. See Kingsley v. Hendrickson,

135 S. Ct. 2466, 2473 (2015). Video of the incident shows Solano motionless and

unresisting for more than 90 seconds while officers continued to pin him to the

ground with their body weight and bend his legs toward his torso. The medical

examiner concluded this force caused Solano’s death.

      2. The alleged excessive force violated clearly established law. In Drummond

ex rel Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003), we held that

qualified immunity was not appropriate when a suspect was subdued and

handcuffed, yet officers “pressed their weight onto his neck and torso, and

maintained that pressure for a significant period of time.” Id. at 1063. It was thus

clearly established that continuing to press weight onto a detainee for a significant

period of time after the detainee is subdued violates the Fourth Amendment.

Although the officers in this case did not apply force to Solano for as long a period

as involved in Drummond, the video of the incident creates at least a disputed issue

of material fact whether they did so for a significant period of time after Solano

ceased resisting.




                                         3
      3. The officers’ appeal from the district court’s refusal to grant the officers

summary judgment on the state law claims is premised entirely on their argument

that qualified immunity should have been granted on the federal claims and that the

state law claims stand in the same posture. Because we affirm the denial of qualified

immunity on the federal claims, in the circumstances of this case, affirmance of the

denial of discretionary immunity on the state law claims follows.

      AFFIRMED.




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