                                                                              FILED
                            NOT FOR PUBLICATION                               DEC 03 2013

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



                            FOR THE NINTH CIRCUIT


LEIF A.H. WERNER,                                No. 12-35875

              Plaintiff - Appellee,              D.C. No. 3:11-cv-05608-BHS

  v.
                                                 MEMORANDUM*
CITY OF POULSBO, municipality and
CITY OF POULSBO POLICE
DEPARTMENT, department of
municipality,

              Defendants,

  And

DARRELL MOORE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Benjamin H. Settle, District Judge, Presiding

                     Argued and Submitted November 4, 2013
                              Seattle, Washington

Before: SCHROEDER, PAEZ, and BERZON, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        Officer Darrell Moore of the City of Poulsbo Police Department appeals the

denial of qualified immunity in an action pursuant to 42 U.S.C. § 1983.

        We review de novo a district court’s order denying summary judgment on

the ground of qualified immunity. Rodis v. City & Cnty. of S.F., 558 F.3d 964, 968

(9th Cir. 2009). “[O]ur review is limited to the ‘purely legal issue whether the

facts alleged . . . support a claim of clearly established law.’” Alston v. Read, 663

F.3d 1094, 1098 (9th Cir. 2011) (citations omitted).

        (1) We affirm the district court’s denial of qualified immunity with respect

to Officer Moore’s application of a chokehold. Drawing all inferences in favor of

Plaintiff Leif Werner, a reasonable jury could conclude that Officer Moore placed

Werner in a chokehold before Werner engaged in any conduct justifying the use of

force, and that, by grabbing Werner around the neck, Officer Moore made it

difficult for Werner to breath. The district court properly relied for this purpose on

Werner’s sworn testimony that he was returning to his car, as directed, when

Officer Moore grabbed Werner from behind and applied a chokehold around his

neck.

        It was clearly established at the time that such an unprovoked use of force

was unlawful and unreasonable. Indeed, “[i]n assessing the state of the law at the

time of [Werner]’s arrest, we need look no further than Graham’s holding that


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force is only justified when there is a need for force.” Blankenhorn v. City of

Orange, 485 F.3d 463, 481 (9th Cir. 2007) (citing Graham v. Connor, 490 U.S.

386 (1989)).

      Werner’s admission that he resisted arrest does not change this result. As

the district court noted, that Werner “later resisted arrest” does not preclude a

finding that Officer Moore violated Werner’s constitutional rights “if and when

Werner was returning to his vehicle as instructed by Moore, and Moore proceeded

to put a chokehold on Werner and arrest him.” Cf. Smith v. City of Hemet, 394

F.3d 689, 696 (9th Cir. 2005) (“[E]xcessive force used after a defendant has been

arrested may properly be the subject of a § 1983 action notwithstanding the

defendant’s conviction on a charge of resisting an arrest that was itself lawfully

conducted” (emphasis in original)).

      (2) The district court’s order does not specifically address whether it was

granting or denying qualified immunity with regard to the taser applications. As

the order denies qualified immunity to Officer Moore generally, rather than in part,

we shall construe it as denying immunity for the taser use as well. We reverse the

denial of qualified immunity insofar as it pertains to the taser usage.

      Adopting Werner’s version of the events, and drawing all inferences in his

favor, a reasonable jury could conclude that the multiple taser applications


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exceeded the amount of force justified under the circumstances, notwithstanding

Werner’s admission that he resisted arrest during the altercation. See Mattos v.

Agarano, 661 F.3d 433, 445–46 (9th Cir. 2011) (en banc). At the time of the

incident, however, the law governing taser usage for resisting arrest was not yet

clearly defined. See id. at 448. Officer Moore is therefore entitled to qualified

immunity under the second prong of Saucier v. Katz, 533 U.S. 194, 201 (2001), as

to the taser usage.

      (3) Werner seeks attorneys’ fees pursuant to 42 U.S.C. § 1988 for this

appeal. “A party may be awarded attorney fees as a prevailing party at an

interlocutory stage of the proceeding if the party ‘prevails on the merits as to one

or more of his or her claims.’” Marks v. Clarke, 102 F.3d 1012, 1034 (9th Cir.

1996) (citation omitted). Since Werner has “won [no] more than the mere right to

proceed to trial,” id., we deny his request for fees at this stage of the litigation.

      Defendant shall bear the costs on appeal.

      AFFIRMED in part; REVERSED in part; and REMANDED.




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