                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            DEC 21 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GREGORY KOIRO,                                   No. 14-17514

              Plaintiff - Appellee,              D.C. No.
                                                 2:12-cv-00725-RFB-GWF
 v.

LAS VEGAS METROPOLITAN POLICE
DEPARTMENT,                                      MEMORANDUM *

              Defendant,

 and

CHRISTOPHER CATANESE, Police
Officer,

              Defendant - Appellant.

                    Appeal from the United States District Court
                             for the District of Nevada
                   Richard F. Boulware, District Judge, Presiding

                           Submitted December 16, 2016**
                              San Francisco, California



       *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
Before: GRABER, LUCERO,*** and HURWITZ, Circuit Judges.

      Christopher Catanese, a former Las Vegas Metropolitan Police Officer,

appeals from the district court’s denial of his motion for summary judgment based

on qualified immunity. Exercising jurisdiction under the collateral order doctrine,

Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009), we affirm.

      We review the district court’s order de novo. Id. A qualified immunity

defense must be denied if: (1) the facts, taken in the light most favorable to the

non-moving party, show the violation of a constitutional right; and (2) that right

was clearly established at the time of the violation. Pearson v. Callahan, 555 U.S.

223, 232 (2009). In an excessive force case, “the question is whether the officers’

actions are ‘objectively reasonable’ in light of the facts and circumstances

confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989).

      The district court properly determined that, on plaintiff Gregory Koiro’s

version of events, Catanese is not entitled to qualified immunity as a matter of law.

According to Koiro he was at the home of a friend, Laura Carducci, and after

having had several drinks, he and Carducci argued over whether he was sober

enough to drive himself home. Carducci called her neighbor, Kimberly Costarell.



       ***
          The Honorable Carlos F. Lucero, United States Circuit Judge for the
Tenth Circuit, sitting by designation.

                                          2
Costarell and her boyfriend, Catanese, came to Carducci’s home. Catanese was

off-duty and never identified himself as a police officer. As Koiro walked toward

his truck, Catanese became aggressive toward Koiro, yelling profanities at him and

trying to take his keys. Koiro attempted to walk away from Catanese, at which

point Catanese shoved Koiro from behind, pushed him to the ground, and

repeatedly punched him in the head and torso. Catanese also choked Koiro several

times, instructed Costarell to choke him on two occasions, and bit his index finger.

If proved, these facts would suffice to show Catanese used excessive force against

Koiro. And, Koiro’s “right to be free from the application of non-trivial force for

engaging in mere passive resistance was clearly established” before this incident

occurred. Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013); see

also Nelson v. City of Davis, 685 F.3d 867, 881-82 (9th Cir. 2012) (citing Ninth

Circuit caselaw dating from 2001 and holding that the “failure to fully or

immediately comply with an officer’s orders neither rises to the level of active

resistance nor justifies the application of a non-trivial amount of force”).

      Catanese disputes much of Koiro’s account. He contends that Koiro was

drunk and intending to drive, refused to follow Catanese’s reasonable requests not

to drive even after Catanese identified himself as an officer, and physically

assaulted Catanese. This argument requires us to accept Catanese’s version of the


                                           3
facts as true. In reviewing this denial of summary judgment, however, we must

assume that the facts to which Koiro testified are correct. Bingue v. Prunchak, 512

F.3d 1169, 1172-73 (9th Cir. 2008).

      AFFIRMED.




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