The 9th District Court of Appeals ruled on Tuesday that police cannot use a chokehold on someone who is not resisting.
They ruled that there a “robust consensus” among appellate courts nationwide that such police conduct violates the ban on unreasonable searches and seizures under the Fourth Amendment to the Constitution, and thus they conclude “that Officer Greene violated clearly established Fourth Amendment law when he placed Tuuamalemalo in a chokehold and rendered him unconscious.”
This 3-0 ruling will allow Mr. Tuuamalemalo, a California resident, to go to trial in a suit against a police officer who choked him unconscious at a Las Vegas nightclub.
Ian Tuuamalemalo, described by his lawyer as a Los Angeles-area construction worker, was having drinks with his wife and other relatives after a reggae concert at the Hard Rock Hotel and Casino in January 2014.
While Mr. Tuuamalemalo was at the concert, the Homeland Saturation Team of the Las Vegas Metropolitan Police Department, a unit specializing in riot control, was finishing its shift. Video surveillance from the hotel shows a large number of police officers at the scene.
An officer approached a member of Mr. Tuuamalemalo’s party, then Mr. Tuuamalemalo approached the officers and tried to talk to them.
At the time, he was 34 and weighed around 380 pounds. One of the officers told him, according to the court, “to shut the ‘F’ up.” The court writes: “A surveillance video shows police officers and members of Tuuamalemalo’s group pushing one another. Tuuamalemalo made his way to the front of his group. After reaching the front of the group, Tuuamalemalo was pushed by one of the officers.”
They were moved outside The Joint, but remained in the hotel, closely followed by a group of police officers.
As he was pushed along the hallway, he collapsed. With the help of officers and patrons, Mr. Tuuamalemalo was able to stand up and began walking toward the hotel exit with the help of two friends.
However, “A group of officers followed Tuuamalemalo and his friends as they walked toward the exit. Sergeant Jenkins pushed through the group and grabbed the back of Tuuamalemalo’s shirt. The video shows Tuuamalemalo turning around. Sergeant Jenkins then punched Tuuamalemalo on the left side of his face. After Jenkins punched Tuuamalemalo, five officers took Tuuamalemalo to the ground. Officer Greene put Tuuamalemalo in a chokehold.”
Five officers would take him to the ground and video shows him on the floor with several officers on top of him.
According to the court, “Nothing in the video shows resistance by Tuuamalemalo.”
The court writes: “Officer Greene’s chokehold was a lateral vascular neck restraint, which restricts the flow of blood to the brain rather than restricting air flow. The chokehold rendered Tuuamalemalo unconscious. It took several attempts to revive him.”
“My legs aren’t moving. I’m not fighting back,” Mr. Tuuamalemalo said in a sworn deposition for his lawsuit. “Then we all went down, and I remember somebody yelling, ‘Choke his ass out.’”
The next thing he remembered was waking up, he said.
The court notes that he was arrested for disorderly conduct, resisting arrest and malicious destruction of property, which his lawyer said was a picture of the nightclub that fell when Mr. Tuuamalemalo was knocked down. He was held overnight and then released on bail. Prosecutors dropped the charges nine months later.
In its ruling, the court noted that Mr. Tuuamalemalo “was not resisting arrest when Officer Greene placed him in a chokehold” and, further, “there was little chance he could initiate resistance with five other officers fully restraining him and pinning him to the ground.”
They conclude: “It has long been clear that a police officer may not seize a non-resisting, restrained person by placing him in a chokehold.”
His attorney Paola Armeni, who represented him before the court and also represented the plaintiff in the 2013 Las Vegas case, told media, “(The police) claim they thought he was the ringleader” of a violent group, but Tuuamalemalo was just “trying to pull everybody back.”
The police in general agree that they cannot legally choke someone who is not resisting – however, they argue, as they did in this case, that the person was resisting or posing a danger, she said.
—David M. Greenwald reporting