The 9th U.S. Circuit Court of Appeals has reversed a Nevada judge who found it was “not clearly excessive force” for a Las Vegas police officer to slam a handcuffed man head-first into a wall several times.

Frankie Davis suffered a broken neck in his November 2001 encounter with Officer David Miller at a Las Vegas casino. Security guards called police after detaining Davis for trespassing in a non-public area of the Las Vegas Club Hotel & Casino.

In June 2004, U.S. District Judge James C. Mahan summarily dismissed Davis's excessive force and battery claims, ruling that Miller was entitled to qualified immunity -– even though a police department internal investigation had concluded the officer “did not use the minimal amount of force necessary” to arrest Davis.

Mahan's decision appears even more egregious than that of his colleague, Judge Robert C. Jones, who found last year that it was reasonable for a Las Vegas police officer to squeeze the testicles of a suspect during an arrest. And the 9th Circuit had “no difficulty” in concluding that Davis has a triable civil-rights case.

The plaintiff's alleged offenses of trespassing and obstructing a police officer “by no means” justified the “extremely severe” force used by Miller, the opinion said, and any reasonable officer would have known as much

from an elementary understanding of the obligations of law enforcement officers toward all individuals in the community they serve as well as from a review of the well-established law.

Judge Stephen Reinhardt, writing for the 9th Circuit, also reinstated Davis's battery claim. “A reasonable juror could find that Officer Miller’s [conduct] ... was not merely an exercise or abuse of discretion but instead constituted a deliberate and willful disregard for the law,” he reasoned.

After slamming Davis into two walls, Miller allegedly threw him face-first to the floor, turned him over and then punched him in the face.

The federal court docket in Las Vegas is full of cases against the local cops (see table) and a rash of recent police shootings has incensed civil-rights activists. It can't help that judges like Mahan and Jones seem to lack an “elementary understanding” of what constitutes excessive force.

Mahan is also under investigation by the 9th Circuit for allegedly awarding more than $4.8 million in judgments and fees to litigants with whom he had personal, political and business connections.

By Matthew Heller
3/4/07