Monday, November 17, 2025
Page 3
Court of Appeal:
No Qualified Immunity for Officer Who Took Down Reveler
Majority Says It Clearly Established That Police May Not Tackle Nonviolent Carouser Who Says He Was Just Trying to Celebrate With Police After Local NBA Team’s Victory
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals has held that a police officer is not entitled to qualified immunity relating to an excessive force claim filed by a man who claims that he was shoved to the ground after approaching law enforcement members to celebrate with them after revelers took to the streets following a 2022 NBA championship game, drawing a dissent over the “second-guessing” of necessary split-second decisions in crowd control settings.
At issue is whether the officer violated the plaintiff’s clearly established rights by tackling him for allegedly hovering around police after purportedly being told to leave during a street celebration that erupted after the Golden State Warriors defeated the Boston Celtics in the title game.
Thursday’s memorandum decision, signed by Chief Judge Mary H. Murguia and Circuit Judge John B. Owens, affirms an order denying summary judgment to San Francisco Police Officer Jeffrey Lubey, saying that it was clearly established that tackling a suspect who had displayed no violent tendencies amounts to excessive force and that using a painful method to escort the plaintiff into custody after he hurled insults runs afoul of the First Amendment.
Dissenting, Circuit Judge Patrick J. Bumatay argued that the majority failed to take into account the risks officers face in crowded street celebrations and failed to point to any case law establishing that the use of an escort technique, where the accused is force to walk with his upper body parallel to the ground with his handcuffed hands in the air to prevent spitting, was unreasonable under the circumstances.
June 2022 Celebration
The question arose after the plaintiff, Anthony Navarro, approached Lubey and San Francisco Police Officer Jacob Horton on the street during the evening hours of June 16, 2022. Navarro had just left a Mission District-area bar where he watched the championship game and was celebrating with other fans in the streets.
Horton and Lubey had responded to the area to ensure the safety of a man who had climbed onto a neighborhood light pole. Body camera footage shows that Navarro approached Horton, blocking his path. The officers said that Navarro ignored multiple requests to get back and had to be moved to the side; the plaintiff claimed that he was just trying to shake the officers’ hands to congratulate them on the victory.
Lubey averred that Navarro looped behind him and shoved him in the back, which was disputed by the plaintiff. It was not clear from the body camera recordings whether there was any physical encounter—though the video did purportedly show that the plaintiff was lurking close behind the officer—before Lubey pinned Navarro face-down on the ground and utilized his knee to secure the suspect.
Navarro yelled profanities and insults at Lubey before he was placed in a police van. The Warriors fan suffered a swollen lip and abrasions to his face and knees and filed a complaint against Lubey and the City and County of San Francisco on May 16, 2023, asserting constitutional claims under 42 U.S.C. §1983.
Summary Judgment
After the defendants filed a motion for summary judgment arguing, in part, that Lubey was entitled to qualified immunity, U.S. Magistrate Judge Sallie Kim for the Northern District of California denied the motion as to the plaintiff’s Fourth Amendment excessive force and First Amendment retaliation claims.
Kim reasoned that “[v]iewing the facts in the light most favorable” to the plaintiff, “a reasonable jury could conclude that Plaintiff was subjected to” more force than was constitutionally permissible. Noting that only causation was at issue as to the retaliation claim, she concluded that there was a genuine issue as to whether the plaintiff would have been restrained in the extreme manner he was “but for his persistent…verbal challenges.”
She further opined:
“Because an officer should know that using intermediate force for a nonviolent crime of delaying an officer is a violation of the Constitution, Lubey is not entitled to qualified immunity.”
Murguia and Owens agreed, writing:
“The district court did not err in concluding that, as of June 2022, the law clearly established that Lubey’s alleged takedown of Navarro was unconstitutional. A law is ‘clearly established’ when it is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.’ ”
Binding Precedent
They declared that “[b]inding precedent put Lubey on clear notice that taking down a nonviolent, nonresistant suspect was unconstitutional,” noting Ninth Circuit cases finding that an officer violates the Fourth Amendment by tackling a non-resisting suspect without first attempting a less extreme means of effecting an arrest.
Turning to the First Amendment claim, the jurists remarked:
“The district court did not err in concluding that, as of June 2022, it was clearly established that using a painful escort method to punish a suspect for verbal challenges was unconstitutional. In 1990, this court established that police ‘may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.’…This court reiterated that principle in 2007….As such, Lubey was on clear notice that using the escort method on Navarro shortly after he had insulted Lubey was unconstitutional.”
As to the defendants’ challenges to Kim’s determinations that a reasonable jury could find for Navarro on both claims, the panel concluded that the court lacks jurisdiction over such arguments.
Saying that “I would reverse and grant Officer Jeffrey Lubey qualified immunity,” Bumatay wrote:
“Although the parties dispute some facts, none of the following are contested: Officer Lubey was operating in a high-risk environment, trying to maintain order among crowds of drunken revelers and ongoing noise from an NBA championship celebration.The officers were responding to assist a reveler who dangerously climbed up a light pole. As Officer Horton was rushing to the light pole, an inebriated Navarro purposefully barged into him. Navarro ignored warnings to back off and obstructed Officer Horton from moving forward. Several times, Navarro even came into physical contact with Officer Horton. Finally, Officer Horton had to physically push Navarro away. All of this happened seconds before Navarro approached Officer Lubey.”
He continued:
“Immediately after, Navarro effectively brushed into Officer Lubey, walking closely behind his left shoulder into his blind spot. As Officer Lubey’s bodycam footage shows, Navarro…first approached Officer Lubey’s left shoulder from the front, just after being pushed away by Officer Horton….Navarro then passed just behind Officer Lubey’s shoulder….This put Officer Lubey in a vulnerable situation, regardless of whether Navarro later shoved him or not.”
Not Unreasonable
Under those circumstances, he concluded that “Lubey did not act unreasonably,” saying:
“[A]n officer would be reasonably apprehensive after an unknown drunk haphazardly walks into his blind spot, especially after witnessing that person physically confront another officer seconds before. Officers do not have eyes in the back of their heads to see what the inebriated person might do. Though we have the benefit of hindsight, Officer Lubey did not—literal or otherwise. After all, we can’t second-guess split-second police judgments in ‘tense, uncertain, or rapidly evolving’ situations.”
He acknowledged that “Navarro didn’t pose a huge threat” to the officer but said “we need to balance this moderate threat against the moderate force that Officer Lubey used.”
Distinguishing the cases relied upon by the majority, he said:
“Even if there was doubt about whether Officer Lubey used excessive force, it is not ‘clearly established’ law that a police officer couldn’t defend himself with moderate force to protect himself from a drunken reveler.”
As to the restraint, he pointed out that it is “uncontested that the escort method would prevent Navarro from spitting at officers or others as he was escorted to the police van” and said the concern over such an assault was “reasonable given Navarro’s bloody lips, his inebriation, and the belligerence and the profanity hurled at officers after his arrest.”
The case is Navarro v. City and County of San Francisco, 24-7142.
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