                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 02 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

SANFORD TUCKER, individually, and as             No. 09-17141
Special Administrator of the Estate of
Keith Tucker, and as Guardian ad Litem of        D.C. No. 2:05-cv-01216-LDG-RJJ
Frans Kai Mann Tucker, a minor,

              Plaintiff - Appellee,              MEMORANDUM*

  v.

LAS VEGAS METROPOLITAN POLICE
DEPARTMENT; PATRICK DENNEY,
Officer; MARK HUTCHINSON, Officer,

              Defendants - Appellants,

  and

TASER INTERNATIONAL, INC.; BILL
YOUNG, Sheriff, individually and in his
official capacity,

              Defendants.


                   Appeal from the United States District Court
                            for the District of Nevada
                 Lloyd D. George, Senior District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     Argued and Submitted February 14, 2012
                            San Francisco, California

Before: GRABER, BERZON, and TALLMAN, Circuit Judges.



      Keith Tucker (“Keith”) died following an altercation with two police

officers, Defendants Patrick Denney and Mark Hutchinson. Keith’s father,

Plaintiff Sanford Tucker (“Sanford”) brought a wrongful death civil rights action

under 42 U.S.C. § 1983, claiming that the force used by Officers Denney and

Hutchinson deprived Keith of his right to be free from excessive force, as

guaranteed by the Fourth and Fourteenth Amendments to the United States

Constitution, and caused his death.1 The officers brought this interlocutory appeal

from the district court’s denial of their motion for summary judgment on grounds

of qualified immunity. We affirm in part, reverse in part, and remand.

      As the parties moving for summary judgment, the officers bear “the burden

of showing the absence of a genuine issue as to any material fact, and for these

purposes the material . . . lodged must be viewed in the light most favorable” to

Sanford. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Summary

judgment “‘should be granted sparingly’” in excessive force cases, because the

      1
        Sanford also sued several other defendants on various legal theories not
pertinent to this appeal.

                                         2
excessive force inquiry often “‘requires a jury to sift through disputed factual

contentions, and to draw inferences therefrom.’” Smith v. City of Hemet, 394 F.3d

689, 701 (9th Cir. 2005) (en banc) (quoting Santos v. Gates, 287 F.3d 846, 853

(9th Cir. 2002)). In this case, we agree with the district court that, with respect to

the force used after Keith was handcuffed, there are genuine issues of material fact

rendering summary judgment inappropriate. We conclude, however, that there are

no genuine issues of material fact concerning whether the force used before Keith

was handcuffed was excessive, and that summary judgment should have been

granted in favor of the defendants with regard to that period.

      We use a two-pronged test to determine whether qualified immunity is

justified: (1) we must decide whether the officer violated a plaintiff’s constitutional

right; and (2) we must determine whether the asserted right was “‘clearly

established in light of the specific context of the case’ at the time of the events in

question.” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (en banc)

(quoting Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009)), petitions for cert.

filed, --- U.S.L.W. ---- (U.S. Jan. 11, 2012) (No. 11-1032), 80 U.S.L.W. 3457 (U.S.

Jan. 17, 2012) (No. 11-898), --- U.S.L.W. ---- (U.S. Feb. 21, 2012) (No. 11-1045).

In determining whether an officer violated a plaintiff’s right to be free from




                                           3
excessive force, we first assess the severity of the force used and then measure the

governmental interests at stake by evaluating a range of factors. See id. at 441.

      1. The force used by the officers before Keith’s handcuffing was reasonable

under the circumstances of Keith’s violent resistance. Sanford argues that the

officers should be held liable for the defensive force they used in handcuffing

Keith, because Officer Denney’s decision to grab Keith’s hand may have provoked

the violent altercation that ensued. We disagree. “Where a police officer

‘intentionally or recklessly provokes a violent confrontation, if the provocation is

an independent Fourth Amendment violation, he may be held liable for his

otherwise defensive use of force.’” Espinosa v. City & Cnty. of San Francisco,

598 F.3d 528, 538 (9th Cir. 2010) (quoting Billington v. Smith, 292 F.3d 1177,

1189 (9th Cir. 2002)), cert. denied, 132 S. Ct. 1089 (2012). Officer Denney’s

decision to grab Keith’s hand was not an intentional or reckless provocation that

independently violated Keith’s Fourth Amendment rights, see Drummond ex rel.

Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003), and therefore

cannot “render the officer[s’] otherwise reasonable defensive use of force

unreasonable as a matter of law,” Billington, 292 F.3d at 1190–91.

      Summary judgment should therefore have been granted with respect to the

force used before Keith was handcuffed.


                                          4
      2. A jury could, however, reasonably conclude that the officers used

excessive force in tasing Keith and applying their body pressure to restrain him

after he was handcuffed and face down on a bed. See Drummond, 343 F.3d at

1059–60. Although the officers testified that Keith continued to threaten their

safety even after he was handcuffed, and that they exercised considerable restraint

in their use of force, the district court accurately identified significant discrepancies

and omissions in their respective accounts of the altercation. A jury, after hearing

live testimony and cross-examination, might therefore discredit the officers’

testimony and conclude that, in light of the degree of danger Keith posed once

handcuffed, if any, and other pertinent circumstances (including Keith’s apparent

physical and mental state at the time), the degree of force used was excessive. See

Santos, 287 F.3d at 852. Because genuine issues of material fact remain as to both

the extent of the force used by the officers and the nature of the threat posed by

Keith’s handcuffed resistance, we cannot hold that the officers acted reasonably as

a matter of law.

      3. Turning to the clearly established law inquiry, we conclude that existing

law recognized a Fourth Amendment violation where two officers use their body

pressure to restrain a delirious, prone, and handcuffed individual who poses no

serious safety threat. See Drummond, 343 F.3d at 1059–60. Keith, unlike


                                           5
Drummond, continued to resist the officers after handcuffs were applied, but this

distinction does not, by itself, suffice to bring this case out of Drummond’s orbit.

See Davis v. City of Las Vegas, 478 F.3d 1048, 1057 (9th Cir. 2007).

      AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

      Costs on appeal awarded to Plaintiff-Appellee.




                                          6
                                                                                FILED
Tucker v. Las Vegas Metro. Police Dep’t, No. 09-17141                            MAR 02 2012
TALLMAN, Circuit Judge, concurring:                                          MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS

      I concur in the Court’s disposition insofar as it deems summary judgment

inappropriate in this case.

      Excessive force cases involving a deceased victim “pose a particularly

difficult problem [at the summary judgment stage] because the officer defendant is

often the only surviving eyewitness.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.

1994). I am bound by our precedent, which clearly says the court cannot simply

take officers at their word. Rather, the court must “carefully examine all the

evidence in the record . . . to determine whether the officer’s story is internally

consistent and consistent with other known facts.” Id. (citing Hopkins v. Andaya,

958 F.2d 881, 885–88 (9th Cir. 1992); Ting v. United States, 927 F.2d 1504,

1510–11 (9th Cir. 1991)). That is why most jurisdictions conduct a public inquest

into deaths like these in police custody. See Nev. Rev. Stat. § 259.050.

      In this case, there appear to be inconsistencies in the testimonies of Officers

Denney and Hutchinson. While Officer Hutchinson stated that he placed light

pressure on Tucker’s back while Tucker was prone and handcuffed, Officer

Denney stated that Hutchinson never placed pressure on Tucker’s back. And while

Officer Hutchinson claims he got off of Tucker as soon as he heard Tucker’s pleas

for air, Officer Denney never mentioned this fact in his deposition. I agree with
the district court that the inconsistent testimony creates issues of fact that can only

be resolved by a jury.

      I write separately, however, to note that police officers have no duty to

retreat when threatened with physical assault. See Reed v. Hoy, 891 F.2d 1421,

1428 (9th Cir. 1989) (“[Plaintiff] has not cited to this court a single case from any

jurisdiction suggesting that police officers have the same duty to retreat as ordinary

citizens.”). Notwithstanding our decision in Drummond v. City of Anaheim, 343

F.3d 1052, 1059 (9th Cir. 2003), officers need not flee from a suspect bent on

continued attack, regardless of whether the suspect is handcuffed. Such a

requirement would “be inconsistent with police officers’ duty to the public,” Reed,

891 F.2d at 1428, and would subject officers to unnecessary threats to their own

health and safety. And I do not agree with the assumption implicit in the Court’s

disposition that a suspect, once handcuffed, no longer poses any danger to arresting

officers. See George T. Payton & Michael Amaral, Patrol Operations and

Enforcement Tactics 242 (11th ed. 2004) (“Even when cuffed, a prisoner could

strike a heavy blow. . . . Handcuffs are not escape proof. They are meant to be a

temporary restraint. Don’t put too much faith in them.”).
