“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Ninth Circuit judge Daniel Collins would allow qualified immunity for an officer who allegedly used excessive force against a non-resisting person lying face down on the ground. The October 2020 decision was Cortesluna v. Leon.

In 2016 the police were called to a home where Ramon Cortesluna was located. A 911 call was made indicating that Cortesluna had a chainsaw and was trying to hurt his girlfriend and her children. When the police arrived they could see inside the home and did not see Cortesluna with a chainsaw. Officer Rivas-Villegas knocked on the door and ordered Cortesluna out of the home. Cortesluna complied. While Cortesluna was exiting the home Officer Kensic saw a knife in his pocket. Cortesluna was told to keep his hands up. Cortesluna did not immediately put his hands up and was shot with a beanbag round by Officer Leon. After being shot a second time Cortesluna raised his hands.

Cortesluna was ordered to the ground and he complied. While on the ground Officer Rivas-Villegas pressed his knee into Cortesluna’s back and pulled his arms behind his back. Cortesluna was handcuffed and taken away. He contended that he suffers “physical, emotional and economic injuries” as a result of the officers’ conduct.

Corlesluna filed suit in district court alleging a violation of his Fourth Amendment rights because officers Rivas-Villegas and Leon used excessive force and officer Kensic did not intervene after witnessing use of excessive force by his fellow officers. All three officers moved for summary judgement and the district court ruled in their favor. Cortesluna appealed.

In a 2-1 decision, the majority affirmed the district court’s ruling in favor of officers Leon and Kensic, but reversed the district court’s summary judgment in favor of officer Rivas-Villegas. The majority explained  that there was a genuine issue of fact as to whether the force that Rivas-Villegas used when he kneeled on plaintiff’s back when he was lying face down on the ground was excessive. They went on to say that controlling precedent at the time put officers on notice that kneeling on a prone and non-resisting person’s back so hard as to cause Cortesluna injury was excessive.

Dissenting in part, Judge Daniel Collins believed that the force Rivas-Villegas used could not reasonably be described as excessive and even if the force was excessive it is clear that Rivas-Villegas would be entitled to qualified immunity. The majority explained why Collins was wrong, noting that he had improperly  disregarded Rivas-Villegas’ “use  of his foot to press Plaintiff to the ground” and that it was “for the jury, not us, to decide” whether the officer had used excessive force.