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I. INTRODUCTION

On October 3, 2013, Daniel Chambers was subjected to excessive force by Officer John

Lewis while peacefully protesting a policy that may deny him the right to an affordable

education. Lewis dislocated Chambers’ shoulder using unreasonable force in the form of an

“arm-lock.” Chambers sued Lewis under the Federal Civil Rights Act 42 U.S.C. §1983 as a result

of Lewis’ use of excessive force. Officer Lewis has moved for summary judgment on the grounds

that he is entitled to qualified immunity. Chambers requests that Lewis’ motion be denied as

Lewis cannot establish that his use of an arm-lock was reasonable as a matter of law.

Qualified immunity is an affirmative defense raised by a law enforcement officer when he

is accused of violating a plaintiff’s constitutional right. Saucier v. Katz, 533 U.S. 194, 200

(2001). The initial inquiry a court makes in a qualified immunity ruling is whether a

constitutional right has been violated. Id. at 201. If a constitutional right has been violated, the

next step is to determine if the right was clearly established at the time it was violated. Id. We

need not discuss the second inquiry of right establishment, as the Court has already determined

this inquiry in the affirmative. Therefore, this analysis will focus on the initial question of

whether Chambers’ Fourth Amendment rights were violated.

In this case, the constitutional right in question is Chambers’ Fourth Amendment right

guaranteeing him freedom from unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394

(1989). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under

the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on

the individual's Fourth Amendment interests' against the countervailing governmental interests at

stake.” Id. at 396. This balancing test is objective and requires particular attention to the facts and

circumstances of each case, including the severity of the crime, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is actively resisting arrest

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or attempting to evade arrest by flight. Id. The overall question is whether the totality of the

circumstances justify the use of a particular means of force. Id.

Lewis is not entitled to summary judgment because he cannot show that no genuine issue

of material fact exists regarding the reasonableness of the force he used. First, Lewis is not

entitled to qualified immunity as a matter of law because the crime Chambers’ is accused of does

not justify the use of significant force. Chambers was arrested for disturbing the peace, a non-

violent misdemeanor. Because non-violent misdemeanors do not justify the use of significant

force, Lewis’ use of force was unreasonable. See Headwaters Forest Defense v. Cty. of

Humboldt, 240 F.3d 1185, 1204 (9th Cir. 2000) (holding officers were not entitled to summary

judgment where peaceful protestors charged with misdemeanor trespass were pepper sprayed).

Second, Chambers was not a threat to the officers or others at the scene, especially once

he was restrained by Lewis. Chambers was unarmed and significantly outnumbered by police in

riot gear. Moreover, Chambers reiterated multiple times his willingness to comply with Lewis’

requests to go peacefully to be arrested. Because Chambers had surrendered and was under the

control of Lewis he was not a threat to Lewis or others when the force that caused his injury was

applied. See Alexander v. Cty. of Los Angeles, 64 F.3d 1315, 1323 (9th Cir. 1995) (holding

plaintiff was not a threat once restrained with handcuffs and that failure to loosen handcuffs was

not reasonable force as a matter of law).

Further, Chambers was not resisting arrest at the time the unreasonable use of an arm-

lock was being applied. It is undisputed that Chambers initially resisted arrest. However, once

caught and controlled by Lewis, Chambers ceased resisting, yet was still subject to a significant

amount of force resulting in his injury. Lewis applied this force despite Chambers’ repeated pleas

for relief and affirmation that he would comply with Lewis’ requests to go peacefully. Because

Chambers was not resisting when Lewis dislocated his shoulder, Lewis’ continued use of an arm-

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lock was unreasonable. See LaLonde v. Cty. of Riverside, 204 F.3d 947, 961 (9th Cir. 2000)

(denying motion for summary judgment where officers failed to alleviate the effects of pepper

spray used initially to restrain a resisting suspect once that suspect ceased resistance and was

under control of officers).

II. STATEMENT OF FACTS

On October 3, 2013 Daniel Chambers’ shoulder was dislocated by Officer John Lewis as

a result of Lewis’ use of an “arm-lock.” (Lewis Dep. 3:18-19.) Chambers had arrived at UCLA

Business School earlier that day to join in a protest against a tax policy which he felt would raise

his college tuition. (Chambers Dep. 1:11-27.) Shortly after Chambers arrived, Officer John Lewis

arrived wearing riot gear. (Lewis Dep. 4:26.) Riot gear consists of bulletproof vests, helmets with

shields and body armor. (Lewis Dep. 5:1.) Lewis was accompanied by nine other officers, all

similarly outfitted. (Lewis Dep. 4:23-26.) After ordering the crowd to disperse voluntarily with

little success, Lewis and the officers began arresting individuals in an attempt to disperse the

crowd. (Lewis Dep. 6:7-16.) Some protestors began yelling derogatory remarks at police officers,

but Chambers was not among them. (Chambers Dep. 4:3-8.) At this point, four additional

officers in riot gear had arrived. (Lewis Dep. 4:22-24.) There was no sign of violence or weapons

amongst any members of the crowd, including Chambers. (Lewis Dep. 7:17-24.)

Lewis arrested Chambers for disturbing the peace, a misdemeanor. (Lewis Dep. 5:15-17.)

Chambers was chosen because he was on the perimeter of the group of protestors and there was

no way to differentiate protestors from one another. (Lewis Dep. 7:7-16.) Lewis made two arrests

before approaching Chambers. (Lewis Dep. 8:2-3.) Neither of the previous arrestees gave Lewis

any resistance or displayed any violent behavior. (Lewis Dep. 8:4-7.) There was still no sign of

violence or weapons amongst the crowd. (Lewis Dep. 7:21-24.)

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Without warning, Lewis grabbed Chambers’ arm tightly and began walking him away.

(Chambers Dep. 3:19.) Chambers expressed that Lewis’ hold was causing him pain and said he

would go peacefully if Lewis let go. (Lewis Dep. 2:5-16.) Despite Chambers’ plea, Lewis

maintained his grip on Chambers. (Lewis Dep. 2:20-21.) Chambers seized an opportunity to

break free of Lewis’ painful grip and began running away. (Chambers Dep. 5:2-3.) The former

linebacker tackled Chambers from behind, at which point a struggle ensued, resulting in Lewis

being hit in the shoulder a few times. (Lewis Dep. 2:24-27.) Lewis at six-feet, one inch and 185

pounds is significantly larger than Chambers, who measures in at five-feet, eleven inches and 165

pounds. (Lewis Dep. 8:6.) (Chambers Dep. 5:26.) Lewis was not injured as a result of the

struggle. (Lewis Dep. 8:10-11.)

Lewis then grabbed Chambers’ wrist, wrenching his arm painfully behind his back.

(Lewis Dep. 3:1-5.) Maintaining this hold, Lewis picked Chambers up and started walking to the

police vans on site. (Lewis Dep. 3:2.) Chambers again told Lewis he was hurting him through the

following exchange: “He said, ‘Hey man. Let me go. You’re hurting me.’ And I said back to him,

‘Are you going to go peacefully?’ And he said, ‘Yeah.’ And I asked him again, ‘Are you?’ Then

he got a little testy and said, ‘I just told you, yes.’ And then I told him, ‘I don’t believe you.’ Then

he said, ‘I promise. Let me go.’” (Lewis Dep. 3:6-17.) Lewis’ continued use of the arm-lock then

dislocated Chambers’ shoulder. (Lewis Dep. 3:18-23.)

III. OFFICER LEWIS’ MOTION FOR SUMMARY JUDGMENT SHOULD BE

DENIED BECAUSE ISSUES OF MATERIAL FACT EXIST REGARDING

WHETHER THE FORCE INVOKED WAS REASONABLE GIVEN THE

GOVERNMENTAL INTERESTS AT STAKE

“The court shall grant summary judgment when the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when evidence in favor of the non-

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moving party would allow a reasonable jury to return a verdict in its favor. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). When examining the evidence, a court should view all

evidence in the light most favorable to the non-moving party. Chew v. Gates, 27 F.3d 1432, 1439

(1994). Trial courts should act with caution in granting summary judgment and may deny

summary judgment in a case where there is reason to believe that the better course would be to

proceed to a full trial. Anderson, 477 U.S. at 248. “Because questions of reasonableness are not

well-suited to precise legal determination, the propriety of a particular use of force is generally an

issue for the jury.” Chew, 27 F.3d at 1440.

IV. OFFICER LEWIS CANNOT SHOW THAT HE IS ENTITLED TO QUALIFIED

IMMUNITY AS A MATTER OF LAW BECAUSE CHAMBERS WAS

ARRESTED FOR A NON-VIOLENT MISDEMEANOR, WAS NOT A THREAT

TO LEWIS OR OTHERS AND WAS NOT RESISTING ARREST WHEN THE

FORCE IN QUESTION WAS USED

Qualified immunity is an affirmative defense raised by a law enforcement officer when he

is accused of violating a plaintiff’s constitutional right. Saucier v. Katz, 533 U.S. 194, 200

(2001). The initial inquiry a court makes in a qualified immunity ruling is whether a

constitutional right has been violated. Id. at 201. If a constitutional right has been violated, the

next step is to determine if the right was clearly established at the time it was violated. Id. We

need not discuss the second inquiry of right establishment, as the Court has already determined

this inquiry in the affirmative. Therefore, this analysis will discuss the initial question of whether

Chambers’ Fourth Amendment rights were violated.

In this case, the constitutional right in question is Chambers’ Fourth Amendment right

guaranteeing him freedom from unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394

(1989). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under

the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on

the individual's Fourth Amendment interests' against the countervailing governmental interests at

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stake.” Id. at 396. This balancing test is objective and requires particular attention to the facts and

circumstances of each case, including the severity of the crime, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is actively resisting arrest

or attempting to evade arrest by flight. Id. The overall question is whether the totality of the

circumstances justify the use of a particular means of force. Id.

A. Lewis is not entitled to qualified immunity as a matter of law because Chambers’

crime was a non-violent misdemeanor which did not justify the use of force

A non-violent, misdemeanor crime militates against the use of significant force.

Headwaters Forest Defense v. Cty. of Humboldt, 240 F.3d 1185, 1204 (9th Cir. 2000). In

Headwaters, the use of pepper spray against non-violent protestors was held to raise a genuine

issue of material fact regarding the reasonableness of the force used. Id. at 1206. The protestors

used “black bear” devices to link themselves to objects or each other, removal of which required

a Makita grinder or willing disengagement by the protestors. Id. at 1191-92. The protestors who

were subject to pepper spray were physically and visibly separated from the larger group of

protestors. Id. at 1202. The only crime the protestors had committed at the time they were

pepper-sprayed was misdemeanor trespass. Id. at 1204. The court held that the protestors’

behavior and non-violent offenses differed greatly from the more violent crimes which justified

the use of pepper spray, and the use of such force was not reasonable as a matter of law. Id.

Just as in Headwaters, Chambers has only been charged with a non-violent misdemeanor

offense, disturbing the peace. The only reason given by Lewis for his decision to arrest Chambers

was that he was standing on the perimeter of the group. Furthermore, Chambers had not engaged

in any violent or dangerous behavior at the time he was arrested, and was physically and visually

separated from the other protestors at the time the unreasonable force was used. Moreover,

Chambers had not utilized any device to link himself to an object or other protestor which would

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require the use of equipment to bring him under control. Therefore, the severity of the crime at

hand does not justify the use of force that resulted in Lewis dislocating Chambers’ shoulder.

B. Chambers did not pose a threat when the excessive force was applied because he

was under the control of Lewis and expressing his willingness to comply

An individual who has surrendered and is under the control of officers poses a minimal

threat to anyone’s safety. Alexander v. Cty. of Los Angeles, 64 F.3d 1315, 1323 (9th Cir. 1995);

see also Drummond v. City of Anaheim, 343 F.3d 1052, 1058-59 (9th Cir. 2003) (holding that

plaintiff who initially was a threat to himself and officers was “a minimal threat to anyone’s

safety” after being restrained and that the continued application of force was excessive). Further,

an individual who is not armed, nor has displayed violent or dangerous behavior is not a threat

which justifies the use of significant force. See Chew v. Gates, 27 F.3d 1432, 1455 (9th Cir.

1994) (stating that unarmed, fleeing suspect was not a significant threat to the officers or others

because he had not exhibited violent or dangerous behavior before his attempted evasion).

In Alexander, the plaintiff was detained by police because he matched the description of

an armed robbery suspect. Alexander, 64 F.3d at 1318. The plaintiff was initially handcuffed,

after which the officers proceeded to slam him against a car, kick his legs apart, and forcefully

push him into the backseat of the police car. Id. at 1323. The plaintiff remained handcuffed for

forty-five minutes to an hour, and complained that the handcuffs were too tight and needed to be

loosened. Id. The court found that the officers’ use of force in not loosening the handcuffs was

not reasonable as a matter of law, in part because the plaintiff did not pose a threat to the officers

once he was restrained and under their control. Id.

In contrast, in Jackson v. City of Bremerton, the plaintiff was one of thirty to fifty

individuals at a family reunion held at a local park. Jackson v. City of Bremerton, 268 F.3d 646,

649 (2001). Police officers approached the group after getting a complaint of a disturbance and

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attempted to make an arrest of one member of the group for whom there was an outstanding

warrant. Id. Upon attempting to make this arrest, fights broke out between the plaintiff’s group

and the officers, with the officers being significantly outnumbered. Id. at 650. The plaintiff

attempted to physically interfere with an officer’s arrest of another group member and was

sprayed with a chemical irritant. Id. The court found this use of force reasonable given the threat

the plaintiff and her group presented while engaged in a “melee” with police. Id. at 653.

Just as in Alexander, Chambers did not pose a threat to Lewis or others once he was

restrained. Lewis gained control of Chambers by using the painful arm-lock to pick him up off

the ground. Chambers made clear that he was willing to comply with Lewis’ requests to go

peacefully in three separate statements. Moreover, Chambers’ pleas for relief, similar to those of

the plaintiff in Alexander, are not evincing of violent or dangerous behavior. Because Chambers

had surrendered to Lewis’ authority and was firmly under control after being placed in the arm-

lock, he was not a threat which justified the continued application of the significant force used.

Additionally, Chambers’ behavior prior to the use of the arm-lock by Lewis’ does not

justify the use of force deployed here. The scene at which Chambers was arrested can be

described as nothing more than a passionate but peaceful protest. There were no signs of violence

or weapons amongst the crowd. Chambers himself was unarmed and standing at the periphery of

the pro-tax group. Chambers did not make any threatening or derogatory remarks towards the

officers before or after they began making arrests. Chambers is significantly smaller than Lewis,

who also had prior experience playing Division-I football, was dressed in riot gear, and had 13

officers on scene to assist him if necessary. See Headwaters, 240 F.3d at 1203 (holding protestors

were not a threat to officers or others because they were not “physically menacing”).

These circumstances stand in stark contrast to those in Jackson. Chambers and other

members of the crowd were not engaged in physical altercations with the officers when they

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began making arrests. Chambers did not attempt to interfere with any of the prior arrests he had

witnessed the officers make, nor did he initiate any physical contact with the officers. Hence,

Chambers’ lack of violent or dangerous behavior, along with a lack of such behavior from other

protestors does not justify the continued use of the arm-lock utilized here.

C. Lewis is not entitled to judgment as a matter of law because Chambers was no

longer resisting arrest at the time he was injured.

The use of some force may be justified in restraining a resisting suspect, but continued

application of force after the suspect is under control and complying with officers is

unreasonable. LaLonde v. Cty. of Riverside, 204 F.3d 947, 961 (9th Cir. 2000); see also

Drummond v. City of Anaheim, 343 F.3d 1052, 1058 (9th Cir. 2003) (holding that application of

pressure to plaintiff’s back and neck area was excessive after plaintiff had been restrained, was

not resisting the officers, and was pleading for relief). The amount of force used may be deemed

excessive even during the midst of a plaintiff’s resistance. LaLonde, 204 F.3d at 960-61.

In LaLonde, two officers responded to a disturbing the peace call and entered the

plaintiff’s apartment after he refused to step outside. Id. at 951. The plaintiff resisted arrest,

resulting in a scuffle between him and one of the officers. Id. at 952. The officer sprayed the

plaintiff with pepper spray, at which point his resistance ceased. Id. After the plaintiff’s

resistance had ceased, the officer placed his knee forcefully into the plaintiff’s back causing

injury. Id. The plaintiff was also subjected to the painful effects of the pepper spray for twenty to

thirty minutes after his resistance had ceased. Id. The court held that the knee to the back could

be considered excessive even if the plaintiff was resisting at the time, and the refusal of the

officers to alleviate the effects of the pepper spray after the plaintiff had surrendered and was

under control constituted excessive force. Id. at 960-61.

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Just as in LaLonde, Chambers was subjected to the continued application of force after

his resistance had ceased. Chambers expressed that his resistance had ceased by reaffirming in

three separate statements his willingness to go peacefully with Lewis. Lewis refused to reduce

the significant amount of force being applied despite these statements. While Lewis claims he did

not believe Chambers’ expressions of consent to going peacefully, the issue of whether these

claims were genuine or made in bad faith is a matter of fact to be decided by a jury. See Hammer

v. Gross, 932 F.2d 842, 846 (9th Cir. 1991) (holding plaintiff’s consent to submit to a

breathalyzer test he had previously resisted could not be deemed to be in bad faith as a matter of

law and must be left to the jury to decide). Moreover, Lewis using an arm-lock to dislocate

Chambers’ shoulder is excessive even in light of Chambers’ initial resistance. Therefore, Lewis’

use of force was not reasonable as a matter of law.

D. The totality of the circumstances show that Lewis is not entitled to summary

judgment on his qualified immunity defense

After balancing the nature of the intrusion on Chambers’ person with the governmental

interests at stake, the totality of the circumstances show that Lewis should not be granted

summary judgment. Chambers was arrested for a non-violent misdemeanor which weighs against

the use of significant force. Chambers was not a threat once he surrendered to the control of

Lewis, evidenced by his repeatedly-expressed willingness to go peacefully. Furthermore,

Chambers was not resisting at the time Lewis’ used the force which dislocated his shoulder.

Therefore, Lewis’ continued use of an arm-lock was unreasonable given the governmental

interests at stake.

V. CONCLUSION

For the foregoing reasons, Chambers respectfully requests that this Court deny Lewis’

motion for summary judgment.

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DATED: 2/19/15

Respectfully submitted,

DUNHAM & ASSOCIATES

__________________________

Justin Casey

Attorneys for Plaintiff

Daniel Chambers