                                                                           FILED
                               NOT FOR PUBLICATION                          MAY 25 2012

                                                                        MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                    U .S. C O U R T OF APPE ALS




                               FOR THE NINTH CIRCUIT



SHANNON KANDA,                                    No. 10-35746

                 Plaintiff - Appellant,           DC No. CV 09-404 EJL

  v.
                                                  MEMORANDUM *
WAYNE LONGO; CITY OF COEUR
D’ALENE; COEUR D’ALENE POLICE
DEPARTMENT; JOHN DOES 1-10;
JANE DOES 1-10; GREGORY MOORE,
Officer; JONATHAN CANTRELL,
Officer,

                 Defendants - Appellees.



                      Appeal from the United States District Court
                                for the District of Idaho
                       Edward J. Lodge, District Judge, Presiding

                             Submitted January 11, 2012
                                  Seattle, Washington
              Submission Vacated, Argued and Resubmitted March 21, 2012
                               San Francisco, California

Before:         TASHIMA, GRABER, and RAWLINSON, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiff Shannon Kanda appeals the district court’s order granting summary

judgment to Defendants in her 42 U.S.C. § 1983 action alleging that Coeur d’Alene

police officers Gregory Moore and Jonathan Cantrell used excessive force in

effectuating her arrest. Kanda was injured after the officers took her down to the

ground on a stairwell landing, hitting her face against a metal handrail with some

force in the process. The district court held that the officers were entitled to

qualified immunity because, although a reasonable jury could find that the force

used against Kanda was excessive, the officers did not violate clearly established

law when they mistakenly used more force than intended.

      We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s

grant of summary judgment de novo, considering disputed material facts in the

light most favorable to the non-moving party. Mattos v. Agarano, 661 F.3d 433,

439 (9th Cir. 2011) (en banc), petitions for cert. filed, 80 U.S.L.W. 3517, 3457,

3517, 3583 (U.S. Jan. 11, 17, Feb. 21, Mar. 22, 2012) (Nos. 11-1032, 11-898, 11-

1045, 11-1165). “Because the excessive force inquiry nearly always requires a

jury to sift through disputed factual contentions, . . . summary judgment . . . in

excessive force cases should be granted sparingly.” Smith v. City of Hemet, 394

F.3d 689, 701 (9th Cir. 2005) (en banc) (internal quotation marks, alterations, and

citations omitted). We reverse and remand.


                                           2
      Assuming that the officers made a reasonable mistake as to the amount of

force they were using against Kanda, a reasonable jury could still conclude that

taking Kanda to the ground was excessive under the circumstances. See Mattos,

661 F.3d at 441 (discussing factors to be weighed in assessing excessive force).

The officers outnumbered Kanda two to one. She was a recent victim of violence

and was emotional, unarmed, and visibly intoxicated, to the point where she could

not properly open a door handle. See Deorle v. Rutherford, 272 F.3d 1272, 1282-

83 (9th Cir. 2001). A reasonable jury could also conclude that Kanda’s actions

constituted battery only in the most technical sense and that the officers could have

easily subdued and handcuffed her in a standing position. See Davis v. City of Las

Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007). While police officers need not

employ the least intrusive degree of force possible during an arrest, they must at

least consider less intrusive methods, and the presence of feasible alternatives is a

relevant consideration in an excessive force analysis. Bryan v. MacPherson, 630

F.3d 805, 831 n.15 (9th Cir. 2010).

      Our recent decision in Luchtel v. Hagemann, 623 F.3d 975 (9th Cir. 2010),

is not to the contrary. In that case, the court concluded that there was no excessive

force where officers took to the ground an intoxicated woman who was threatening

to harm herself and who used a neighbor to shield herself during her confrontation


                                           3
with the police. Id. at 979-84. There was “no genuine dispute from the evidence

that Luchtel posed a threat to herself, her neighbors, and the officers.” Id. at 980.

Moreover, Luchtel “was actively resisting arrest” and the officers “applied the least

amount of force necessary to subdue Luchtel by pinning her to the ground and

handcuffing her.” Id. at 981-82. All of these factual issues remain contested in

Kanda’s case.

      We also hold that, if the level of force used was excessive, the officers

violated a clearly established constitutional right. See Mattos, 661 F.3d at 442.

Given that the officers used substantially more force than was intended, for

purposes of this inquiry, we ask whether a reasonable officer could have believed

that the force that was actually used was lawful under the circumstances. Torres v.

City of Madera, 648 F.3d 1119, 1127 (9th Cir. 2011), cert. denied, 132 S. Ct. 1032

(2012). The force actually used by the officers, taking Kanda down into a metal

handrail, was very severe and resulted in serious injuries. A reasonable officer

could not have believed that such force was proportionate under the circumstances.

See Davis, 478 F.3d at 1055-57 (holding that slamming a handcuffed suspect’s

head into a wall for trespassing and obstructing a police officer was excessive).

      We therefore reverse the district court’s determination that the officers were

entitled to qualified immunity and remand for further proceedings.


                                           4
REVERSED and REMANDED.




                         5
                                                                            FILED
Kanda v. Longo, No. 10-35746                                                 MAY 25 2012

                                                                         MOLLY C. DWYER, CLERK
GRABER, Circuit Judge, dissenting:                                        U .S. C O U R T OF APPE ALS




      I respectfully dissent.

      In my view the officers are entitled to qualified immunity. It is undisputed

that the officers were justified in arresting Kanda and handcuffing her and that she

had committed a battery. A reasonable officer would not necessarily know that a

take-down arrest, as distinct from a standing arrest, was excessive or that a take-

down on a stair landing was unreasonably dangerous. Kanda was tall, young, and

big and had taken a swing at one of the officers (albeit unsuccessfully). Being

drunk could have made her more dangerous, rather than less dangerous, to the

officers. Our cases counsel against drawing so fine a line as police respond to an

evolving situation. For that reason, I would affirm the district court’s decision.
