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NOT FOR PUBLICATION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.
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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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