                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


IAN TUUAMALEMALO,                    No. 18-15665
        Plaintiff-Appellee,
                                       D.C. No.
            v.                 2:16-cv-00619-JAD-VCF

SHAHANN GREENE, Officer,
     Defendant-Appellant.              OPINION


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

         Argued and Submitted March 15, 2019
               San Francisco, California

                 Filed December 24, 2019

     Before: William A. Fletcher, Paul J. Watford,
       and Andrew D. Hurwitz, Circuit Judges.

                Per Curiam Opinion;
           Concurrence by Judge W. Fletcher
2                  TUUAMALEMALO V. GREENE

                            SUMMARY*


                             Civil Rights

    The panel affirmed the district court’s denial, on summary
judgment, of qualified immunity to a police officer in an
action brought pursuant to 42 U.S.C. § 1983 and state law
alleging that defendant used excessive force when he placed
plaintiff in a chokehold during an encounter.

    The panel stated that this Circuit’s decision in Barnard v.
Theobald, 721 F.3d 1069 (9th Cir. 2013), squarely addressed
the constitutionality of the use of a chokehold on a non-
resisting person. The panel held that viewing plaintiff’s
version of the facts in the light most favorable to him, he was
not resisting arrest when defendant placed him in a
chokehold. Further, there was little chance he could initiate
resistance with five other officers fully restraining him and
pinning him to the ground. The panel concluded that given
the state of the law in this Circuit, it was clearly established
that the use of a chokehold on a non-resisting, restrained
person violated the Fourth Amendment’s prohibition on the
use of excessive force. The panel further held that the same
version of the facts that justified the district court’s decision
to deny defendant qualified immunity under § 1983 precluded
a grant of immunity under Nevada law.

    Concurring, Judge W. Fletcher wrote separately to
address the continuing confusion over the proper standard for
determining appealability of interlocutory orders denying

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               TUUAMALEMALO V. GREENE                     3

motions for summary judgment based on qualified immunity
under § 1983.


                       COUNSEL

Craig R. Anderson (argued), Marquis Aurbach Coffing, Las
Vegas, Nevada, for Defendant-Appellant.

Paola M. Armeni (argued), Clark Hill PLLC, Las Vegas,
Nevada, for Plaintiff-Appellee.


                        OPINION

PER CURIAM:

    Defendant Shahann Greene, a police officer in Las Vegas,
Nevada, placed Ian Tuuamalemalo in a chokehold during an
encounter following a concert. The chokehold rendered
Tuuamalemalo unconscious, and it took some time and
several attempts to revive him. Tuuamalemalo sued under
42 U.S.C. § 1983, alleging excessive force. Officer Greene
moved for summary judgment based on qualified immunity.
The district court denied the motion. Greene brought an
interlocutory appeal. We affirm.

          I. Factual and Procedural Background

    Some of the evidence is undisputed. Where the evidence
is in conflict, we recount it in the light most favorable to
Tuuamalemalo, the non-moving party.
4               TUUAMALEMALO V. GREENE

    On the evening of January 25, 2014, Tuuamalemalo went
to a reggae concert at “The Joint,” a music venue in the Hard
Rock Hotel and Casino in Las Vegas, Nevada.
Tuuamalemalo was joined by his wife, his cousin, and his
cousin’s husband in an upstairs booth. As the group listened
to the concert, they had a few drinks.

    While Tuuamalemalo was at the concert, the Homeland
Saturation Team of the Las Vegas Metropolitan Police
Department (“LVMPD”), a unit specializing in riot control,
was finishing its shift. Sergeant Tom Jenkins was in the
squad locker room getting ready to go home when he
received a call from LVMPD Gang Sergeant Andrew Burnett
requesting backup at The Joint to ensure that a fight would
not break out. Sergeant Jenkins placed his team back on duty
and drove to the Hard Rock Hotel. Officer Greene drove with
Officer Sergio MPhillips to join Sergeant Jenkins at the hotel.
Video surveillance from the hotel shows a large number of
police officers at the scene.

    After the officers arrived at the hotel, Sergeant Burnett
approached Darin Afemata, a member of Tuuamalemalo’s
party. Tuuamalemalo approached the officers and tried to
talk to them. One of the officers told him “to shut the ‘F’
up.” A surveillance video shows police officers and members
of Tuuamalemalo’s group pushing one another.
Tuuamalemalo made his way to the front of his group. After
reaching the front of the group, Tuuamalemalo was pushed by
one of the officers.

    Tuuamalemalo and other patrons were moved to a
hallway outside The Joint but still inside the hotel. They
were closely followed by a group of officers. As
Tuuamalemalo was pushed along the hallway with a mixed
                TUUAMALEMALO V. GREENE                        5

group of patrons and police officers, he collapsed. With the
help of officers and patrons, Tuuamalemalo was able to stand
up. He began walking toward the hotel exit with help from
two friends, one on each side.

    A group of officers followed Tuuamalemalo and his
friends as they walked toward the exit. Sergeant Jenkins
pushed through the group and grabbed the back of
Tuuamalemalo’s shirt. The video shows Tuuamalemalo
turning around.       Sergeant Jenkins then punched
Tuuamalemalo on the left side of his face. After Jenkins
punched Tuuamalemalo, five officers took Tuuamalemalo to
the ground. Officer Greene put Tuuamalemalo in a
chokehold.

    The video shows Tuuamalemalo on the floor with a
number of officers on top of him. Nothing in the video shows
resistance by Tuuamalemalo. Officer Greene’s chokehold
was a lateral vascular neck restraint (“LVNR”), which
restricts the flow of blood to the brain rather than restricting
air flow.        The chokehold rendered Tuuamalemalo
unconscious. It took several attempts to revive him.

    Tuuamalemalo testified in his deposition, “My legs aren’t
moving, I’m not fighting back. I’m not trying to resist,
kicking, nothing. The whole time I had my hands spread
out.” “Then we all went down, and I remember somebody
yelling, ‘Choke his ass out.’” Tuuamalemalo testified that the
next thing he remembered was waking up.

    Tuuamalemalo was arrested for (1) disorderly conduct,
(2) resisting arrest, (3) provoking commission of breach of
peace, and (4) malicious destruction of property. He was
transported to Clark County Detention Center and was
6               TUUAMALEMALO V. GREENE

released on bail the next day. All charges were ultimately
dismissed.

    On January 25, 2015, Tuuamalemalo filed suit in Nevada
state court. Defendants removed the case to federal court,
and Tuuamalemalo subsequently filed an Amended
Complaint (“AC”). The AC named Sergeant Jenkins, Officer
MPhillips, Officer Greene, and LVMPD as defendants. The
complaint included false arrest and excessive force claims
against the officers; a failure to train claim against LVMPD;
and analogous state law claims for assault, battery, and
intentional infliction of emotional distress.

    Following discovery, defendants moved for summary
judgment. The individual defendants claimed qualified
immunity under federal law and discretionary immunity
under state law. On March 27, 2018, the district court issued
an order granting summary judgment in favor of Officer
MPhillips, Sergeant Jenkins, and LVMPD, but denied
summary judgment to Officer Greene. The claims against
Greene all relate to his use of the chokehold on
Tuuamalemalo. Greene brought an interlocutory appeal of
the denial of his motion for summary judgment.

                  II. Appellate Jurisdiction

    Tuuamalemalo argues that we lack jurisdiction to review
the district court’s interlocutory order denying summary
judgment to Officer Greene under § 1983 and under state law.
Greene freely admits that he administered the chokehold.
Tuuamalemalo points out that the district court held that there
was a genuine issue of material fact as to whether
Tuuamalemalo was resisting at the time Greene applied the
chokehold, and therefore as to whether Greene is entitled to
                TUUAMALEMALO V. GREENE                        7

qualified immunity. Therefore, he contends, we lack
appellate jurisdiction. We have jurisdiction under Plumhoff
v. Rickard, 572 U.S. 765 (2014), to review the decision of the
district court, viewing the facts in the light most favorable to
Tuuamalemalo, the nonmoving party.

    We also have interlocutory appellate jurisdiction to
review the district court’s denial of Officer Greene’s motion
for summary judgment on Tuuamalemalo’s state-law claims.
For claims of immunity under state law, “the availability of
an appeal depends on whether, under state law, the immunity
functions as an immunity from suit or only as a defense to
liability.” Liberal v. Estrada, 632 F.3d 1064, 1074 (9th Cir.
2011) (emphasis in original). “A denial of summary
judgment is immediately appealable when the immunity is an
immunity from suit, but not when it is a mere defense to
liability.” Id. (citing Mitchell, 472 U.S. at 526). Both parties
agree that under Nevada law, immunity for discretionary acts
provides police officers with immunity from suit. See ASAP
Storage, Inc. v. City of Sparks, 173 P.3d 734, 745–46 (Nev.
2007) (holding that Nevada’s discretionary immunity statute
provides immunity from suit). Just as with the denial of
qualified immunity under § 1983, we may review the district
court’s denial of discretionary immunity under state law.

                   III. Standard of Review

    In reviewing summary judgment rulings by the district
court, “we assume the version of the material facts asserted
by the non-moving party to be correct.” Jeffers v. Gomez,
267 F.3d 895, 905 (9th Cir. 2001) (emphasis omitted)
(quoting Schwenk v. Hartford, 204 F.3d 1187, 1195 (9th Cir.
2000)). In qualified immunity cases, as in other cases, “we
view the facts in the light most favorable to the nonmoving
8               TUUAMALEMALO V. GREENE

party.” Plumhoff, 572 U.S. at 768. We review de novo the
district court’s determinations regarding official immunity.
Deorle v. Rutherford, 272 F.3d 1272, 1278 (9th Cir. 2001)
(qualified immunity); Martinez v. Maruszczak, 168 P.3d 720,
724 (Nev. 2007) (discretionary immunity under Nevada state
law).

           IV. Qualified Immunity under § 1983

     To determine whether Officer Greene is entitled to
summary judgment based on qualified immunity under
§ 1983, we ask two questions. First, “[t]aken in the light
most favorable to the party asserting the injury, do the facts
alleged show the officer’s conduct violated a constitutional
right?” Scott v. Harris, 550 U.S. 372, 377 (2007) (quoting
Saucier v. Katz, 533 U.S. 194, 201 (2001)). Second, “[i]f . . .
the court finds a violation of a constitutional right, ‘the next,
sequential step is to ask whether the right was clearly
established . . . in light of the specific context of the case.’”
Id. (quoting Saucier, 533 U.S. at 201) (second ellipsis in
original). This sequence is the analytically logical way to
proceed, but we have discretion to decide the second question
first, thereby avoiding the first question. Pearson v.
Callahan, 555 U.S. 223, 236 (2009).

    Officer Greene does not dispute that, viewing the
evidence in the light most favorable to Tuuamalemalo, his use
of a chokehold violated the Fourth Amendment. Therefore,
we turn to the second question: whether Greene’s use of a
chokehold violated a clearly established right “in light of the
specific context of the case.” Scott, 550 U.S. at 377 (quoting
Saucier, 533 U.S. at 201).
                TUUAMALEMALO V. GREENE                        9

    To be clearly established, “[t]he contours of the right must
be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). The
Supreme Court has repeatedly cautioned us “not to define
clearly established law at a high level of generality.”
Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (citation
omitted). “To determine whether Officer [Greene] violated
clearly established law, we look to cases relevant to the
situation [Greene] confronted, mindful that there need not be
a case directly on point.” A.K.H. rel. Landeros v. City of
Tustin, 837 F.3d 1005, 1013 (9th Cir. 2016) (internal citations
and quotation marks omitted). The right must be settled law,
meaning that it must be clearly established by controlling
authority or a robust consensus of cases of persuasive
authority. District of Columbia v. Wesby, 138 S. Ct. 577,
590–91 (2018). Viewing the evidence in the light most
favorable to Tuuamalemalo, we conclude that Officer Greene
violated clearly established Fourth Amendment law when he
placed Tuuamalemalo in a chokehold and rendered him
unconscious.

    Our decision in Barnard v. Theobald, 721 F.3d 1069 (9th
Cir. 2013), squarely addressed the constitutionality of the use
of a chokehold on a non-resisting person. In that case,
officers placed the non-resisting, restrained plaintiff in a
chokehold and then pepper sprayed him. Id. at 1072–73. We
affirmed the jury’s finding that the officers’ use of force
violated the Fourth Amendment. Id. at 1076. Even earlier,
in Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d
1052, 1059 (9th Cir. 2003), we had held that “any reasonable
person . . . should have known that squeezing the breath from
a compliant, prone, and handcuffed individual despite his
10              TUUAMALEMALO V. GREENE

pleas for air involves a degree of force that is greater than
reasonable.” These cases are directly on point.

     Viewing Tuuamalemalo’s version of the facts in the light
most favorable to him, he was not resisting arrest when
Officer Greene placed him in a chokehold. Further, there was
little chance he could initiate resistance with five other
officers fully restraining him and pinning him to the ground.
Given the state of the law in our circuit, it was clearly
established that the use of a chokehold on a non-resisting,
restrained person violates the Fourth Amendment’s
prohibition on the use of excessive force.

    Our circuit is not alone in reaching this conclusion. There
is a robust consensus among the circuits that the use of a
chokehold on a non-resisting person violates the Fourth
Amendment. See Coley v. Lucas Cty., 799 F.3d 530, 541 (6th
Cir. 2015) (“Chokeholds are objectively unreasonable where
an individual is already restrained or there is no danger to
others.”); United States v. Livoti, 196 F.3d 322, 324–27 (2d
Cir. 1999) (finding that use of a chokehold against a
handcuffed, non-resistant subject was an excessive use of
force); Valencia v. Wiggins, 981 F.2d 1440, 1447 (5th Cir.
1993) (holding use of a “choke hold and other force . . . to
subdue a non-resisting [detainee] and render him temporarily
unconscious was unreasonable and was an excessive use of
force”). Given the consensus of authority holding that use of
a chokehold against a non-resisting, restrained person violates
the Fourth Amendment, Tuuamalemalo’s right to be free
from excessive force under the circumstances he describes
was clearly established.

    Officer Greene asks us to assume that Tuuamalemalo was
resisting. But the standard on summary judgment requires us
                TUUAMALEMALO V. GREENE                      11

to view the facts in the light most favorable to the plaintiff.
At this stage of the proceedings, we must assume that
Tuuamalemalo was not resisting when Officer Greene used
a chokehold on him. See Wall v. City of Orange, 364 F.3d
1107, 1112 (9th Cir. 2004). Greene also argues that the
district court did not appropriately credit the ten minutes of
video leading up to the use of the chokehold on
Tuuamalemalo, during which Tuuamalemalo was aggressive
with officers. But the district court did consider the previous
portions of the video (as have we). Indeed, on that ground,
the court granted qualified immunity to Officer Jenkins, who
struck Tuuamalemalo shortly before he was placed in a
chokehold. There is no reason to believe that the district
court improperly discounted any of the other record evidence
in this case.

               V. Immunity Under State Law

    The district court also denied Officer Greene’s motion for
summary judgment on Tuuamalemalo’s state law claims for
assault and battery and for intentional infliction of emotional
distress. Under Nevada law, police officers “are privileged
to use that amount of force which reasonably appears
necessary,” and are liable only to the extent they use more
force than reasonably necessary. Ramirez v. City of Reno,
925 F. Supp. 681, 691 (D. Nev. 1996). To the extent that
Tuuamalemalo’s version of the facts precludes a finding that
Greene’s use of a chokehold was reasonable under the federal
law, the same version of the facts precludes summary
judgment on Tuuamalemalo’s state law claims.

    Officer Greene argues that even if there were issues of
fact as to whether his use of force was reasonable, he was
nevertheless entitled to immunity under Nevada law, which
12              TUUAMALEMALO V. GREENE

bars claims against state officers based on acts or omissions
relating to a “discretionary function,” even if that discretion
is abused. Nev. Rev. Stat. § 41.032(2). “But decisions made
in bad faith, such as ‘abusive’ conduct resulting from
‘hostility’ or ‘willful or deliberate disregard’ for a citizen’s
rights, aren’t protected under the immunity statute even if
they arise out of a discretionary function.” Jones v. Las
Vegas Metro. Police Dep’t, 873 F.3d 1123, 1133 (9th Cir.
2017) (quoting Davis v. City of Las Vegas, 478 F.3d 1048,
1060 (9th Cir. 2007)).

     With respect to Tuuamalemalo’s claims under state law,
“we look only to whether a reasonable jury could find that the
officers’ use of force indicated hostility or willful disregard”
of his rights. Id. Applying a chokehold to a non-resisting,
pinned person violated Tuuamalemalo’s clearly established
federal rights, and a jury could conclude that Officer Greene’s
decision was so excessive that it amounted to willful or
deliberate disregard of those rights. See Davis, 478 F.3d at
1060 (“No officer has the ‘rightful prerogative’ to engage in
a malicious battery of a handcuffed citizen who is neither
actively resisting arrest nor seeking to flee.”). Further, as the
district court noted, acts that violate the law are generally not
the kinds of discretionary acts entitled to immunity. See
Nurse v. United States, 226 F.3d 996, 1002 (9th Cir. 2000)
(“In general, governmental conduct cannot be discretionary
if it violates a legal mandate.”). In sum, the same version of
the facts that justified the district court’s decision to deny
Greene qualified immunity under § 1983 precludes a grant of
immunity under Nevada law.
                TUUAMALEMALO V. GREENE                       13

                       VI. Conclusion

    It has long been clear that a police officer may not seize
a non-resisting, restrained person by placing him in a
chokehold. Barnard, 721 F.3d at 1076. Viewing the
evidence in the light most favorable to Tuuamalemalo, that is
precisely what Officer Greene did here. We affirm the
district court’s denial of qualified immunity and remand for
further proceedings consistent with this opinion.

   AFFIRMED and REMANDED.



W. FLETCHER, Circuit Judge, concurring:

    I fully concur in the court’s opinion. I write separately to
address the continuing confusion over the proper standard for
determining appealability of interlocutory orders denying
motions for summary judgment based on qualified immunity
under § 1983.

    The story begins with Mitchell v. Forsyth, 472 U.S. 511
(1985), where the Supreme Court held that an order denying
a public official’s motion for summary judgment based on
qualified immunity is immediately appealable despite the
interlocutory character of the order. Id. at 524–30. The
standard for granting or denying a motion for summary
judgment by the district court was not affected by Mitchell.
However, there was uncertainty about the circumstances in
which an interlocutory appeal could be heard. In Johnson v.
Jones, 515 U.S. 304 (1995), the Court noted that “courts of
appeals hold different views about the immediate
appealability of . . . ‘evidence insufficiency’ claims made by
14              TUUAMALEMALO V. GREENE

public official defendants who assert qualified immunity
defenses.” Id. at 308. The Court “therefore granted
certiorari.” Id. at 309.

    The plaintiff in Johnson sued five police officers for use
of excessive force. Id. at 307. Three of the officers moved
for summary judgment, arguing that there was no evidence
that they had beaten plaintiff or had even been present when
other officers had allegedly done so. Id. The district court
denied qualified immunity, finding that there was a genuine
dispute of material fact as to whether the officers were
present. The three officers appealed the court’s interlocutory
order. Id. at 308. The Seventh Circuit held that it lacked
appellate jurisdiction on interlocutory review over questions
of “evidence sufficiency.” Id.

    Because Mitchell did not change the summary judgment
standard, a district court denying a defendant police officer’s
motion must view the evidence in the light most favorable to
the non-moving party. See Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970). The most obvious way to
implement Mitchell would have been to allow an
interlocutory appeal from a denial of defendant’s motion,
whether the district court (1) used plaintiff’s version of the
facts, construing evidence in the light most favorable to the
plaintiff, or (2) used the defendant’s version of the facts. See
Mitchell, 472 U.S. at 527 (addressing these two alternatives).
Yet the Court in Johnson cited only the second of these
alternatives as a basis for interlocutory appellate jurisdiction,
leaving out the alternative of relying on the plaintiff’s version
of the facts and construing the evidence in the light most
favorable to the plaintiff. The Court wrote:
                TUUAMALEMALO V. GREENE                    15

        All [the Court of Appeals] need determine is
        a question of law: whether the legal norms
        allegedly violated by the defendant were
        clearly established at the time of the
        challenged actions or, in cases where the
        district court has denied summary judgment
        for the defendant on the ground that even
        under the defendant’s version of the facts the
        defendant’s conduct violated clearly
        established law, whether the law clearly
        proscribed the actions the defendant claims he
        took.

Johnson, 515 U.S. at 312 (quoting Mitchell, 472 U.S. at 528)
(emphasis added). The Court wrote further:

        We now consider the appealability of a
        portion of a district court’s summary
        judgment order that, though entered in a
        “qualified immunity” case, determines only a
        question of “evidence sufficiency,” i.e., which
        facts a party may, or may not, be able to prove
        at trial. This kind of order, we conclude, is
        not appealable. That is, the District Court’s
        determination that the summary judgment
        record in this case raised a genuine issue of
        fact concerning petitioners’ involvement in
        the alleged beating of respondent was not a
        “final decision” within the meaning of the
        relevant statute.

Id. at 313.
16              TUUAMALEMALO V. GREENE

    The most natural reading of the passages just quoted is
that a court of appeals has interlocutory appellate jurisdiction
over an order denying summary judgment only when a
district court denies a defendant’s motion for summary
judgment based on the defendant’s version of the facts. A
court of appeals does not have jurisdiction if a plaintiff’s
version of the facts would defeat qualified immunity but that
version of the facts is disputed.

    This is a very odd understanding of Mitchell, for it would
rarely result in an appealable interlocutory order. Defendant
police officers asserting qualified immunity rarely provide
versions of the facts that would result in interlocutory orders
denying their motions for summary judgment. Almost all
interlocutory orders denying defendants’ motions for
summary judgment are based on plaintiffs’ versions of the
facts, viewing the evidence in the light most favorable to
plaintiffs. That is, almost all orders denying summary
judgment to police officer defendants are entered in cases
where there are disputed questions of fact. Yet, it is in
precisely such cases that Johnson—under the most natural
reading of the passages just quoted—tells us that courts of
appeals do not have jurisdiction.

    The Court’s decision in Johnson has created persistent
confusion in the courts of appeals. On the one hand, the
courts of appeals understand the purpose of Mitchell. They
understand the importance of interlocutory appellate
jurisdiction in cases where, in the view of the district court,
plaintiff’s version of the facts, construed in the light most
favorable to plaintiff, would defeat qualified immunity. On
the other hand, they are confronted with the language of
Johnson that appears to preclude the exercise of appellate
jurisdiction in exactly those cases.
                TUUAMALEMALO V. GREENE                      17

    A sample of appellate cases reveals the analytic chaos that
has resulted. See, e.g., Diaz v. Martinez, 112 F.3d 1, 3 (1st
Cir. 1997) (“The dividing line that separates an immediately
appealable order from a nonappealable one in these purlieus
is not always easy to visualize.”); Camilo-Robles v. Hoyos,
151 F.3d 1, 8 (1st Cir. 1998) (“Cases are clear enough at the
extremes. . . . [But d]etermining the existence vel non of
appellate jurisdiction in cases closer to the equator is more
difficult. . . . If this were not complex enough, the district
judge is not legally obliged to explain the basis on which a
denial of summary judgment rests.”); Cunningham v. City of
Wenatchee, 345 F.3d 802, 809 (9th Cir. 2003) (“The
confusion arises from the language in Johnson that where the
summary judgment order determines only a question of
evidentiary sufficiency then this order, even though entered
in a qualified immunity case, is not appealable.”); Walton v.
Powell, 821 F.3d 1204, 1209 (10th Cir. 2016) (“[W]e have
struggled ourselves to fix the exact parameters of the Johnson
innovation.”); Barry v. O’Grady, 895 F.3d 440, 446 (6th Cir.
2018) (“Each of our too-many-to-count additional glosses on
Johnson is needlessly complicated. . . .”) (Sutton, J.,
dissenting).

    The Supreme Court did not at first appear to understand
the problem it had created in Johnson. In several cases, it
reviewed without comment court of appeals decisions in
cases where the district court had denied motions for
summary judgment using plaintiffs’ versions of the facts,
viewing the evidence in the light most favorable to
plaintiffs—in other words, in cases where plaintiffs’ evidence
was disputed.

   In Saucier v. Katz, 533 U.S. 194 (2001), plaintiff sued
Saucier, a military police officer, under Bivens v. Six
18              TUUAMALEMALO V. GREENE

Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971),
alleging excessive use of force. Saucier moved for summary
judgment based on qualified immunity. The district court
denied summary judgment, holding that there was “a dispute
on a material fact . . . concerning whether excessive force was
used.” 533 U.S. at 199. Saucier brought an interlocutory
appeal, which the Ninth Circuit heard and decided. On
certiorari, the Supreme Court recited the standard for
summary judgment where there are disputed facts: “A court
required to rule upon the qualified immunity issue must
consider . . . this threshold question: Taken in the light most
favorable to the party asserting the injury, do the facts alleged
show the officer’s conduct violated a constitutional right?”
Id. at 201. The Court then decided Saucier’s interlocutory
appeal without questioning its own appellate jurisdiction or
that of the Ninth Circuit.

     In Brosseau v. Haugen, 543 U.S. 194 (2004), plaintiff
Haugen sued Brosseau, a police officer, under 42 U.S.C.
§ 1983, alleging excessive use of force. The district court
granted summary judgment to Brosseau based on qualified
immunity. The Ninth Circuit, viewing the evidence in the
light most favorable to plaintiff, reversed and remanded for
trial. The Supreme Court granted certiorari and reversed,
reciting: “The material facts, construed in a light most
favorable to Haugen, are as follows.” Id. at 195. Later in its
opinion, the Court recited the language from Saucier:
“[t]aken in the light most favorable to the party asserting the
injury.” Id. at 197. The Court decided the case without
questioning its own appellate jurisdiction or that of the Ninth
Circuit.

   In Scott v. Harris, 550 U.S. 372 (2007), the plaintiff sued
Scott, a police officer, under 42 U.S.C. § 1983, alleging
                TUUAMALEMALO V. GREENE                      19

excessive use of force. Scott moved for summary judgment
based on qualified immunity. “The District Court denied the
motion, finding that there are material issues of fact on which
the issue of qualified immunity turns which present sufficient
disagreement to require submission to a jury.” Id. at 376
(internal quotation marks omitted). Scott brought an
interlocutory appeal. The Eleventh Circuit “[took plaintiff’s]
view of the facts as given” and affirmed. Id.

    Before the Supreme Court, the parties in Scott argued
vigorously for and against appellate jurisdiction, based on
conflicting interpretations of Johnson. Resp’t’s Br., 2007
WL 118977, at *1–3; Pet’r’s Reply Br., 2007 WL 760511, at
*1–5. The American Civil Liberties Union filed an amicus
brief devoted solely to arguing, based on Johnson, that there
was no interlocutory appellate jurisdiction. The ACLU
wrote:

       Here, the district court’s denial of Petitioner
       Scott’s summary judgment motion expressly
       determined that the pretrial record set forth a
       genuine issue of fact for trial. . . . As in
       Johnson v. Jones, therefore, the district court
       order in this case identified a fact-related
       dispute about the pre-trial record. Its holding
       that the evidence in the pre-trial record was
       sufficient to show a genuine issue of fact for
       trial is, thus, not appealable.

ACLU Amicus Br., 2007 WL 139201, at *6.

    The Supreme Court did not acknowledge the parties’
dispute about interlocutory appellate jurisdiction under
Johnson. It simply decided the case. It wrote:
20              TUUAMALEMALO V. GREENE

       The first step in assessing the constitutionality
       of Scott’s actions is to determine the relevant
       facts. As this case was decided on summary
       judgment, there have not yet been factual
       findings by a judge or jury, and respondent’s
       version of events (unsurprisingly) differs
       substantially from Scott’s version. When
       things are in such a posture, courts are
       required to view the facts and draw reasonable
       inferences “in the light most favorable to the
       party opposing the [summary judgment]
       motion.” In qualified immunity cases, this
       usually means adopting (as the Court of
       Appeals did here) the plaintiff’s version of the
       facts.

Scott, 550 U.S. at 378 (alterations in original and citations
omitted).

   In none of these three cases, including Scott, did the
Supreme Court cite, or in any way acknowledge, the
problematic language in Johnson.

    In Plumhoff v. Rickard, 572 U.S. 765 (2014), the Court
finally addressed the tension between Johnson and its own
post-Johnson practice. Plaintiff was the daughter of the
driver of a fleeing car who had been shot and killed by police
officers. She brought suit under 42 U.S.C. § 1983, alleging
excessive use of force. The district court denied the officers’
motion for summary judgment based on qualified immunity.
A motions panel of the Sixth Circuit initially dismissed the
officers’ appeal under Johnson on the ground that it lacked
jurisdiction. On rehearing, the motions panel vacated its
dismissal and referred the jurisdictional issue to a merits
                TUUAMALEMALO V. GREENE                     21

panel. The merits panel interpreted Scott as having created an
“exception” to Johnson, allowing an interlocutory appeal “to
challenge blatantly and demonstrably false factual
determinations.” Id. at 771 (internal quotation marks
omitted). The merits panel heard the appeal and affirmed the
district court.

    As in Scott, the parties argued vigorously in the Supreme
Court for and against interlocutory appellate jurisdiction.
Resp’t’s Br., 2014 WL 411285, at *4–5; Pet’r’s Reply Br.,
2014 WL 689547, at *1–3. Ohio and twenty-one other states
filed an amicus brief devoted almost entirely to Johnson.
They wrote in their brief:

       The Court should resolve this jurisdictional
       issue because the circuit courts have
       erratically applied Johnson.        And their
       confusion about Johnson’s domain has only
       increased after Scott v. Harris, 550 U.S. 372
       (2007), which rejected a district court’s
       version of the disputed facts in the process of
       finding a police officer entitled to qualified
       immunity.

States’ Amicus Br., 2014 WL 69402, at *2.

    Instead of explaining—or, better yet, abandoning—
Johnson, the Court distinguished it. The Court wrote, “The
District Court order in this case is nothing like the order in
Johnson.” Plumhoff, 572 U.S. at 773. In Johnson, the three
police officers appealing the interlocutory order denying
summary judgment contended that they had not been present
when the beating took place and had had nothing to do with
it. By contrast, the Court wrote in Plumhoff, “Petitioners do
22              TUUAMALEMALO V. GREENE

not claim that other officers were responsible for shooting
Rickard; rather, they contend that their conduct did not
violate the Fourth Amendment and, in any event, did not
violate clearly established law.” Id.

    In deciding the officers’ interlocutory appeal, the Court in
Plumhoff accepted plaintiff’s version of the facts, viewed in
the light most favorable to the plaintiff. The Court wrote:

        Because this case arises from the denial of the
        officers’ motion for summary judgment, we
        view the facts in the light most favorable to
        the nonmoving party, the daughter of the
        driver who attempted to flee.

Id. at 768. The Court wrote further:

        The District Court order here is not materially
        distinguishable from the District Court order
        in Scott v. Harris, and in that case we
        expressed no doubts about the jurisdiction of
        the Court of Appeals under § 1291.
        Accordingly, here, as in Scott, we hold that
        the Court of Appeals properly exercised
        jurisdiction, and we therefore turn to the
        merits.

Id. 773.

   The Ninth Circuit had largely made its peace with
Johnson without waiting for Plumhoff. For example, in
George v. Morris, 736 F.3d 829, 835–36 (9th Cir. 2013), we
wrote that Scott had not overruled or abandoned Johnson.
But in George, we did exactly what the Court in Johnson had
                TUUAMALEMALO V. GREENE                        23

told us not to do, and did exactly what the Court had done in
Scott. The material facts in George were disputed. Donald
George, a terminally ill brain cancer patient, had gotten out of
bed in the middle of the night. Id. at 832. His wife saw him
retrieve a pistol from his truck and load it with ammunition.
She called 911. Santa Barbara Sheriff’s Deputies responded
to the call. Deputy Morris and two other deputies shot and
killed George as he stood on a balcony of his house, holding
his pistol. George’s widow brought suit under § 1983,
alleging excessive force. Id. at 833.

    George’s widow presented evidence that George had
stood on the balcony with one hand holding his walker and
the other holding the gun, and that George had never
“manipulated the gun, or pointed it directly at deputies.” Id.
Deputy Morris, on the other hand, testified in a deposition
that George had pointed the gun at him: “I’m crouched down
and I’m, I remember seeing the, the black hole actually
looking down the barrel as it’s pointed right at me and that
was when, that was when I fired my first shot.” Id. at 833
n.4. We held that Johnson forbade us to credit Morris’s
evidence: “Morris offers a vivid account of Donald’s final
moments that we cannot credit because the district court
found it to be genuinely disputed.” Id. (emphasis in original).
Purporting to follow Johnson, we credited plaintiff’s version
of the disputed facts and affirmed the district court’s denial of
Morris’s motion for summary judgment. We held:

        If the deputies indeed shot the sixty-four-year-
        old decedent without objective provocation
        while he used his walker, with his gun trained
        on the ground, then a reasonable jury could
24              TUUAMALEMALO V. GREENE

        determine that they violated the Fourth
        Amendment.

Id. at 839.

    In so holding, we did what Johnson told us not to do. We
exercised appellate jurisdiction where there were disputed
questions of material fact. We read Johnson as telling us only
that we should not credit Morris’s version of the facts. But,
of course, we did not need Johnson to tell us this, for it was
already the law. Morris was the party moving for summary
judgment. It is black letter law that the district court credits
the non-moving party’s version of the facts in deciding
whether to grant a motion for summary judgment, and that an
appellate court does the same when reviewing the decision of
the district court. That is what the Supreme Court did in
Scott. And that is what the Court did again in Plumhoff,
affirming the correctness of its approach to jurisdiction in
Scott and saving the Johnson approach for use only in cases
where the officer denied being present during, or having
anything to do with, the allegedly excessive use of force. In
light of Plumhoff, it is now clear, in retrospect, that what we
did in George was correct.

   In numerous other cases, we have done much as we did in
George. See, e.g., Armstrong v. Asselin, 734 F.3d 984,
988–89 (9th Cir. 2013); Abudiab v. Georgopoulos, 586 F.
App’x 685, 685–86 (9th Cir. 2013); Downs v. Nev. Taxicab
Auth., 554 F. App’x 566, 567 (9th Cir. 2014); Prancevic v.
Macagni, 567 F. App’x 498, 499 (9th Cir. 2014); see also
Foster v. City of Indio, 908 F.3d 1204, 1209–10 (9th Cir.
2018); Rodriguez v. Cty. of L.A., 891 F.3d 776, 791 (9th Cir.
2018); Nicholson v. City of L.A., 935 F.3d 685, 690 (9th Cir.
                TUUAMALEMALO V. GREENE                        25

2019); Advanced Bldg. & Fabrication, Inc. v. Cal. Highway
Patrol, 918 F.3d 654, 657–58 (9th Cir. 2019).

    We have recently recognized that Plumhoff has modified
Johnson. See Foster, 908 F.3d at 1209–10. But we have not
done more than that. We have not interpreted Plumhoff as
restricting Johnson to its facts. But if we are to be faithful to
what the Court wrote in Plumhoff, that is what we should do.
Under Plumhoff, when a district court holds in summary
judgment that a plaintiff’s version of the facts, construed in
the light most favorable to the plaintiff, shows that a
defendant officer has used excessive force, we generally may
exercise interlocutory appellate jurisdiction under Scott.
Only when an officer provides evidence in the district court
showing that he or she was not present and in no way
participated in or authorized the challenged conduct, and
when the district court nonetheless denies the officer’s
motion for summary judgment because plaintiff presents
evidence to the contrary, are we without jurisdiction to hear
the officers’ interlocutory appeal.

    It is distinctly counterintuitive that this should be the
remnant of Johnson that survives. Officers who present
evidence that they were neither present nor in any way
involved in the use of allegedly excessive force, and who
contend that plaintiffs’ evidence, though contested, construed
in the light most favorable to them, does not show the
contrary, are those officers who most deserve the protection
of interlocutory appeals when their motion for summary
judgment is denied. But I have difficulty reading the
combination of Johnson and Plumhoff any other way. As to
these officers, the district court’s denial of summary
judgment “was not a ‘final decision’ within the meaning of
the relevant statute.” Johnson, 515 U.S. at 313.
26             TUUAMALEMALO V. GREENE

    I hope that the Supreme Court will revisit the issue soon
and will disavow Johnson entirely. But until that happens, I
believe that we are, unfortunately, bound to follow what
remains of Johnson.
