DERRICK K. WATSON, District Judge.
Defendant Veincent moves for reconsideration of the Court's December 20, 2017 Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment on All Claims ("12/20/17 Order") based upon manifest error of law. Dkt. No. 128.
Local Rule 60.1 allows a party to file a motion for reconsideration of an interlocutory order. Reconsideration is permitted only where there is "(a) Discovery of new material facts not previously available; (b) Intervening change in law; [or] (c) Manifest error of law or fact." LR 60.1; see Sierra Club, Hawaii Chapter v. City & Cty. of Honolulu, 486 F.Supp.2d 1185, 1188 (D. Haw. 2007).
A "motion for reconsideration must accomplish two goals. First, a motion for reconsideration must demonstrate reasons why the court should reconsider its prior decision. Second, a motion for reconsideration must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Donaldson v. Liberty Mut. Ins. Co., 947 F.Supp. 429, 430 (D. Haw. 1996). Mere disagreement with a previous order is an insufficient basis for reconsideration, and reconsideration may not be based on evidence and legal arguments that could have been presented at the time of the challenged decision. See Haw. Stevedores, Inc. v. HT & T Co., 363 F.Supp.2d 1253, 1269 (D. Haw. 2005). "Whether or not to grant reconsideration is committed to the sound discretion of the court." White v. Sabatino, 424 F.Supp.2d 1271, 1274 (D. Haw. 2006) (quoting Navajo Nation v. Confederated Tribes & Bands of the Yakima Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003)).
As a preliminary matter, the Court rejects Veincent's mischaracterization of the summary judgment record. In determining Defendant's Motion for Summary Judgment, the Court adopted the version of the facts advanced by Santiago, the party challenging the application of qualified immunity. Veincent's Motion for Reconsideration, however, impermissibly reframes the record, referring several times to Santiago as "drunk," "aggressive," and as posing a "risk to the officers' safety." See Mem. in Supp. at 3, Dkt. No. 128-1.
Turning to his first argument, Veincent asserts that "[r]econsideration is warranted because the Court erroneously denied qualified immunity finding the law was clearly established at the time of the incident. In doing so, this Court relied upon a case which was issued after the incident as well as cases outside of the Ninth Circuit, and ignored other Ninth Circuit case law which found such force was minimal and constitutional." Mem. in Supp. at 2, Dkt. No. 128-1. Despite Veincent's present quarrels with the cases relied upon in the Court's 12/20/17 Order, however, he offers "no law of a strongly convincing nature to induce the court to reverse its prior decision." Donaldson, 947 F. Supp. at 430.
The 12/20/17 Order stated, in relevant part:
12/20/17 Order at 37-38, Dkt. No. 123. Veincent takes issue with the particular cases cited by the Court in this paragraph to demonstrate that the law was clearly established at the time of the incident. The Court, however, did not err.
The Court acknowledged in its Order that Santiago has the burden under the second prong of qualified immunity to point to case law indicating that the right allegedly violated was clearly established. And the Court also acknowledged that Santiago's pleadings fell short of identifying a specific case to satisfy the standard required by White v. Pauly, 137 S.Ct. 548 (2017). See 12/20/17 Order at 38 n.15. The Court notes that, "[e]xcept in the rare case of an `obvious' instance of constitutional misconduct . . . [Santiago] must identify a case where an officer acting under similar circumstances as [Veincent] was held to have violated the Fourth Amendment." Sharp v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (quoting White, 137 S. Ct. at 552). "To achieve that kind of notice, the prior precedent must be controlling—from the Ninth Circuit or Supreme Court—or otherwise be embraced by a `consensus' of courts outside the relevant jurisdiction." Id. (internal citation and quotation omitted); cf. Tarabochia v. Adkins, 766 F.3d 1115, 1125 (9th Cir. 2014) ("We begin our inquiry by looking to binding precedent[;] [i]f the right is clearly established by decisional authority of the Supreme Court or this Circuit, our inquiry should come to an end. In the absence of binding precedent clearly establishing the constitutional right, we look to whatever decisional law is available. . . including decisions of state courts, other circuits, and district courts.") (citations and some quotations marks omitted).
Veincent argues that Santiago, proceeding pro se, failed to point to binding case law establishing that the "minimal force" used against a plaintiff who was "drunk" and "threatened the officers with a rock" violated his rights. Mem. in Supp. at 8. Veincent's characterization of the factual circumstances is disputed. On summary judgment, Santiago does not have the burden under the second prong of the qualified immunity analysis to point to case law establishing a violation of his rights based on Veincent's version of the facts. In this vein, the Court rejects the argument that "nothing in Gravelet-Blondin would have alerted Officer Veincent that an individual who was drunk, previously threatened officers with a rock and in close proximity, could not be grabbed and taken to the ground in order to safely effectuate an arrest." Mem. in Supp. at 9-10. Instead, as noted in the 12/20/17 Order, the Court cited Gravelet-Blondin for its accurate summary of the law in this Circuit: "The right to be free from the application of non-trivial force for engaging in mere passive resistance was clearly established prior to 2008." 12/20/17 Order at 37 (citing Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013)).
Moreover, circuit cases pre-dating Gravelet-Blondin clearly establish that officers violate the Fourth Amendment by using any amount of force where none is called for. In such circumstances, the violation may be obvious. See Sharp, 871 F.3d at 911 ("It is true that in a sufficiently `obvious' case of constitutional misconduct, we do not require a precise factual analogue in our judicial precedents").
Young v. Cty. of Los Angeles, 655 F.3d 1156, 1167-68 (9th Cir. 2011) (quoting Blankenhorn, 485 F.3d at 481) (emphasis added).
The principle that it is unreasonable to use more than trivial force against an individual who was suspected of a misdemeanor crime, posed no immediate threat to officer safety, and could be found no more than to have passively resisted arrest, was thus well-established in 2001, years before the events at issue in this case. Accord Redmond v. San Jose Police Dep't, 2017 WL 5495977, at *21 (N.D. Cal. Nov. 16, 2017) ("Long before 2013, [Graham, Blankenhorn, and Young], made clear to a reasonable officer that using force (including punching) against a suspect who did not commit a serious crime, did not pose a threat, and did not resist arrest or attempt to flee is objectively unreasonable under the Fourth Amendment.").
These cases illustrate clearly why Veincent is not entitled to summary judgment. At the time he was confronted by law enforcement, Santiago had done nothing other than knock over his ex-girlfriend's mailbox, cause minor damage to her rock wall with his vehicle, and enter her yard by climbing the fence. He did not assault or threaten her or anyone else. Nor at least according to Santiago, was he resisting arrest, acting aggressively or belligerently, or presenting a danger to the officers or anyone else. He was having a conversation with another officer, answering that officer's questions, when Veincent suddenly came up from behind and, without warning, threw him to the ground, unprovoked, with such force that it dislodged two of Santiago's teeth. In other words, Veincent employed more than minimal force where even minimal force was not required. Under these circumstances, Veincent has failed to meet his burden and has demonstrated no clear or manifest error in law or fact compelling this Court to reverse its prior decision regarding qualified immunity.
Veincent next argues that the "Court also erred when it denied Officer Veincent qualified immunity because he could have `stepped back' from Santiago. Such a retreat by police officers would be unwise, contrary to their public duty and is unsupported by case law." Mem. in Supp. at 2, Dkt. No. 128-1. The Court, however, did not deny qualified immunity to Veincent because he could have stepped back nor did it decree that he had a duty to retreat. To the contrary, as part of its consideration of the Graham factors, the Court properly stated—
12/20/17 Order at 35. That is, the Court permissibly considered as one factor among others when balancing the competing interests, "the availability of alternative methods . . . in determining whether the amount of force used in a particular instance was, in fact, reasonable." Nelson v. City of Davis, 685 F.3d 867, 882 (9th Cir. 2012). It was not manifest error for the Court to do so.
Equally troubling is Veincent's assertion that the Court imposed upon him a duty to retreat at the point in the course of the arrest when (1) Santiago was already handcuffed; and (2) at least two other officers were in his immediate presence. Despite these circumstances, Santiago testified that Veincent "threw me down on the ground [for the second time], and then he stepped on my back, and make sure I stay down . . . and then I went unconscious." 12/20/17 Order at 31 (quoting 6/20/17 Santiago Dep. Tr. at 34-42). The Court's Order described this point in time as follows:
12/20/17 Order at 33-34 (footnote omitted).
The Court, in other words, imposed no "duty to retreat" and did not deny qualified immunity on the basis that Veincent "could reasonably have altered tactics by simply stepping away from Santiago." Mem. in Supp. at 12 (quoting 12/20/17 Order at 35). Asserting otherwise mischaracterizes the Court's Order. Rather, after carefully "balanc[ing] the gravity of the intrusion on Santiago's Fourth Amendment rights against the Defendants' need for that intrusion," and "viewing the totality of evidence in the light most favorable to Santiago," 12/20/17 Order at 36, the Court found that "level of force resulted in more than a minimal intrusion on Santiago's rights [that] was not justified by the governmental interest in subduing an allegedly compliant trespasser, who could very well have been dispersed or apprehended by less forceful means." Id. Indeed, Santiago had already been apprehended in the presence of other officers when Veincent opted to use his takedown tactics for a second time. Veincent was not entitled to qualified immunity for the "second takedown" when the Court issued its initial summary judgment order and that remains the case today.
For the foregoing reasons, Defendant Veincent's Motion for Reconsideration is DENIED.
IT IS SO ORDERED.
12/20/17 Order at 32-33, Dkt. No. 123. Veincent points to no manifest error of fact or newly discovered evidence to disturb Santiago or the Court's factual recounting. His mere disagreement with the facts is not a basis for reconsideration.
Westfahl, 75 F. Supp. 3d at 374.
