Johnathan Jones, also known as John Leroy Jones; Rosie Lee Mathews; Estate of Anthony Jones, Plaintiffs-Appellants,
Las Vegas Metropolitan Police Department; Mark Hatten; Timothy English; Richard Fonbuena; Steven Skenandore, Defendants-Appellees.
and Submitted December 15, 2016
from the United States District Court No.
2:12-cv-01636-APG-CWH for the District of Nevada Andrew P.
Gordon, District Judge, Presiding
K. Galipo (argued) and Eric Valenzuela, Law Offices of Dale
K. Galipo, Woodland Hills, California, for
R. Anderson (argued) and Micah S. Echols, Marquis Aurbach
Coffing, Las Vegas, Nevada, for Defendants-Appellees.
Before: Alex Kozinski, Jay S. Bybee and N. Randy Smith,
panel affirmed in part and reversed in part the district
court's summary judgment in favor of Las Vegas police
officers, and remanded in an action brought pursuant to 42
U.S.C. § 1983 and state law by the parents and estate of
Johnathan Jones, who died after being restrained and tased
repeatedly and simultaneously for an extended period.
district court determined that plaintiffs failed to assert
their Fourth Amendment claims as executor or administrator of
Jones's estate, as required by the Nevada survival
statute, and thus plaintiffs lacked standing to bring these
claims. The panel held that consistent with the text of
Fed.R.Civ.P. 17 and this Circuit's case law interpreting
the rule, the district court abused its discretion by failing
to give plaintiffs a reasonable opportunity to substitute the
proper party and thus cure the defective complaint.
panel held there was a triable issue of fact as to whether
the officers were reasonable in the degree of force they
deployed. The panel held that evidence presented at summary
judgment would support a jury finding that the officers'
repeated and simultaneous use of tasers for over ninety
seconds was unreasonable and that a jury could reasonably
conclude that the officers knew or should have known that
these actions created a substantial risk of serious injury or
panel held that any reasonable officer would have known that
continuous, repeated, and simultaneous tasings could only be
justified by an immediate or significant risk of serious
injury or death to officers or the public. The panel held
that such force generally cannot be used on a prone suspect
who exhibits no resistance, carries no weapon, is surrounded
by sufficient officers to restrain him and is not suspected
of a violent crime. The panel concluded that given that there
was clearly established Fourth Amendment law and a jury could
reasonably conclude that the officers used excessive force,
the question of qualified immunity must proceed to trial.
panel affirmed the district court's dismissal of the
Fourteenth Amendment claim. The panel held that even assuming
all the facts plaintiffs alleged, there was no evidence that
the officers acted with a purpose of harming Jones that was
unconnected to a legitimate law enforcement objective.
panel held there was a triable issue of fact as to the state
law battery and negligence claims. The panel held that while
there was no evidence that any of the officers acted out of
hostility or improper motive, there was a factual dispute as
to whether the repeated and simultaneous tasings were so
excessive under the circumstances that they amounted to
willful or deliberate disregard of Jones's rights. The
panel therefore remanded plaintiffs' battery and
panel held that the false arrest/imprisonment claim failed
because there was no evidence that the decision to arrest
Jones lacked justification, let alone that it was made in bad
faith. The panel therefore affirmed the dismissal of that
in part and dissenting in part, Judge N.R. Smith would affirm
the district court's decision to dismiss the Fourth
Amendment claims pursuant to Rule 17. Judge N.R. Smith could
not conclude that the district court abused its discretion in
dismissing plaintiffs' Fourth Amendment claims because
the plaintiffs failed to name the proper party in interest.
He agreed that absent this unreasonable mistake in failing to
name the proper party, this case should proceed to trial.
consider whether police officers are entitled to qualified
immunity when they're alleged to have caused the death of
a suspect by using tasers repeatedly and simultaneously for
an extended period.
early morning of December 11, 2010, Officer Mark Hatten of
the Las Vegas Metropolitan Police Department pulled over
Anthony Jones for a routine traffic stop. Hatten ordered
Jones out of the car so he could pat him down for weapons.
Jones obeyed at first but then started to turn toward Hatten.
Scared of the much larger Jones, Hatten drew his firearm,
pointed it at Jones and ordered him to turn back around.
Instead, Jones sprinted away.
called for backup and pursued Jones. Hatten didn't
believe deadly force was necessary because Jones hadn't
threatened him and didn't appear to have a weapon. As he
waited for other officers to arrive, Hatten used his taser to
subdue Jones. Hatten fired his taser twice, causing
Jones's body to "lock up" and fall to the
ground face down with his hands underneath him. Hatten
proceeded to kneel on Jones's back in an attempt to
handcuff Jones, keeping his taser pressed to Jones's
thigh and repeatedly pulling the trigger.
continued to tase Jones even after backup arrived. Backup
consisted of four officers: Richard Fonbuena on Hatten's
right side, who helped handcuff Jones Steven Skenandore, who
controlled Jones's legs and feet Timothy English at
Jones's head, who applied a taser to Jones's upper
back and Michael Johnson, who arrived last and ordered the
tasing to stop. Johnson wanted his officers to "back off
on the tasers so that [Jones's] muscles would
relax." According to Johnson, Jones "didn't
look like he was physically resisting" and there were
"enough officers" to take Jones into custody. In
all, Jones was subjected to taser shocks for over ninety
seconds: Hatten tased Jones essentially nonstop that whole
time-with some applications lasting as long as nineteen
seconds-and, for ten of those seconds, English simultaneously
applied his taser.
the officers stopped tasing Jones, his body went limp. They
sat him up but Jones was nonresponsive and twitching; his
eyes were glazed over and rolled back into his head. The
officers tried and failed to resuscitate him. Jones was
pronounced dead shortly thereafter. The coroner's report
concluded that "police restraining
procedures"-including the tasings-contributed to
parents sued the Las Vegas Metropolitan Police Department and
all of the officers involved in restraining Jones. They
alleged Fourth and Fourteenth Amendment violations as well as
various state law torts. The district court granted summary
judgment for the defendants on all claims. Because plaintiffs
make no arguments regarding the district court's
dismissal of the Monell claim against the police
department, we deem that claim waived. See Hayes v. Idaho
Corr. Ctr., 849 F.3d 1204, 1213 (9th Cir. 2017).
Plaintiffs also voluntarily dismissed their claims against
Officers Fonbuena and Skenandore, so we consider only the
claims against Officers Hatten and English.