9th Circuit upholds qualified immunity for officer who struck a suspect with a baton, even…
Smith v. Olvera
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9th Circuit upholds qualified immunity for officer who struck a suspect with a baton, even though a jury could find the force excessive, because the law was not clearly established enough.
Why it matters
The Ninth Circuit affirmed a district court ruling granting qualified immunity to Officer Brian Olvera, who struck James Smith with a baton during an arrest, breaking his arm and possibly hitting him in the head. The court agreed that a reasonable jury could find Olvera used excessive force, but ruled that the law was not clearly established enough at the time to strip Olvera of qualified immunity. The decision turned on the totality of the circumstances, including that it was dark, Olvera was alone, Smith had one free hand near his waistband, and Smith had just led police on a dangerous car chase.
Who it affects
This ruling most directly affects people who bring civil rights lawsuits against law enforcement officers for use of force, as well as the officers themselves. It reinforces that even when a court believes a jury could find force excessive, officers can still be shielded from civil liability if prior case law did not clearly prohibit their specific actions under similar circumstances.
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Decision issued Jul 14, 2026
Unpublished opinion
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Jul 14, 2026 · Unpublished opinion
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James Smith sued Officer Brian Olvera under federal civil rights law, claiming Olvera used excessive force when arresting him after a car chase. Smith alleged Olvera struck him with a baton multiple times, breaking his arm, and that at least one blow struck his head and knocked out two teeth. The central legal question on appeal was whether Olvera was entitled to qualified immunity, which shields government officials from civil liability unless they violated a clearly established constitutional right. The Ninth Circuit panel agreed with the district court that a reasonable jury could find Olvera used excessive force. The court noted that when Olvera first struck Smith, Smith had exited his vehicle, was cornered by three fences, had raised his hands in a gesture of surrender, and was in the process of lowering himself to the ground. The court also recognized that a baton blow to the head can constitute deadly force because it creates a substantial risk of death or serious bodily injury. However, the court ultimately upheld qualified immunity for Olvera. Even where excessive force may have occurred, an officer can still be immune from suit if the law was not clearly established at the time. The court found that prior legal precedent did not clearly put Olvera on notice that his specific conduct was unconstitutional, given the totality of the circumstances: it was nighttime, Olvera was alone, Smith had one unrestrained hand that appeared to be reaching toward his pocket or waistband, and Smith had just completed a reckless six-minute car chase that included colliding with a patrol vehicle. The court noted a partial concurrence and partial dissent by Judge S.R. Thomas, though the source text does not detail the specific grounds of that disagreement. The majority's reasoning reflects the Supreme Court's recent emphasis that officers must be able to read existing precedent and know in advance that their specific conduct is prohibited before immunity is denied.
CITATION AND RECORD
Record source: CourtListener
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 14 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JAMES DRISCOLL SMITH, No. 25-1809 D.C. No. Plaintiff - Appellant, 3:23-cv-00225-ART-CLB v. MEMORANDUM* BRIAN OLVERA; JOSHUA TAYLOR; JACOB BALLENSKY, Defendants - Appellees. Appeal from the United States District Court for the District of Nevada Anne R. Traum, District Judge, Presiding Argued and Submitted April 21, 2026 San Francisco, California Before: S.R. THOMAS, CHRISTEN, and FORREST, Circuit Judges. Partial Concurrence and Partial Dissent by Judge S.R. Thomas. Plaintiff-Appellant James Smith appeals from a district court summary judgment order granting Defendant-Appellee Officer Brian Olvera1 qualified immunity from the excessive force claim Smith filed pursuant to 42 U.S.C. § 1983. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Smith did not appeal the district court’s dismissal of his failure-to-intervene claims against Officers Joshua Taylor and Jacob Ballensky. Because the parties are familiar with the facts, procedural history, and arguments, we do not detail them here except as necessary to our analysis. We have jurisdiction under 28 U.S.C. § 1291. We affirm the district court’s order. We review de novo an order granting or denying a motion for summary judgment on the basis of qualified immunity. Woodward v. City of Tucson, 870 F.3d 1154, 1159 (9th Cir. 2017). We view the facts and draw reasonable inferences in the light most favorable to the non-moving party, see Scott v. Harris, 550 U.S. 372, 378 (2007), to “determine whether there are any genuine disputes as to any material facts and whether the district court correctly applied the relevant substantive law,” Woodward, 870 F.3d at 1159. 1. The district court correctly concluded that a reasonable jury could decide that Olvera used excessive force in effectuating this arrest. Olvera did not cross- appeal, but he nonetheless urges us to conclude that his use of force was reasonable. We decline to do so. Olvera does not dispute that he struck Smith’s limbs with his baton and that one of the baton strikes broke Smith’s arm. Though Smith averred that he likely lost consciousness and does not specifically remember Olvera hitting him in the head, the record includes sufficient circumstantial evidence to enable a jury to find that he did. Smith contends that he knows he was not bleeding from his face immediately after the car crash, and the body camera footage does not show blood 2 25-1809 in his vehicle. Both Olvera and Ballensky inventoried the car without mentioning any blood in the vehicle. Smith alleges that he sustained a raised welt on the side of his face where two teeth were knocked out and a raised welt on his neck, both of which were consistent with baton strikes. By using a baton, Olvera deployed intermediate force to subdue Smith, Young v. County of Los Angeles, 655 F.3d 1156, 1162–63 (9th Cir. 2011), but a reasonable jury could conclude that he deployed deadly force during part of the encounter because a baton blow to the head “creates a substantial risk of causing death or serious bodily injury,” Smith v. City of Hemet, 394 F.3d 689, 693 (9th Cir. 2005) (en banc), disapproved of on other grounds by Lemos v. County of Sonoma, 40 F.4th 1002, 1008–09 (9th Cir. 2022) (en banc). Construing all inferences in Smith’s favor, when Olvera first struck Smith, he had exited his vehicle, was cornered by three fences, had raised his hands in a gesture of surrender, and was in the process of lowering himself to the ground at Olvera’s command. On this record, we agree with the district court that a reasonable jury could find Smith was not resisting and that Olvera deployed excessive force to subdue him. 2. Even where excessive force is used, an officer may be entitled to qualified immunity at the ambiguous border between excessive and reasonable force. See Taylor v. Riojas, 592 U.S. 7, 8–9 (2020) (per curiam). To prevail, Smith must show that at the time of the arrest, “every reasonable official would 3 25-1809 have understood that what [Olvera was] doing violate[d]” Smith’s “clearly established” right. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citation modified). To be clearly established, there must be existing precedent governing the use of force under similar circumstances, see Martinez v. City of Clovis, 943 F.3d 1260, 1275 (9th Cir. 2019), or a general constitutional rule that applies “with obvious clarity to the specific conduct in question,” Hope v. Pelzer, 536 U.S. 730, 741 (2002). The Supreme Court has recently reemphasized that “courts generally ‘need to identify a case where an officer acting under similar circumstances . . . was held to have violated’ the Constitution” Zorn v. Linton, 607 U.S. ___, 146 S.Ct. 926, 930 (2026) (per curiam) (quoting Escondido v. Emmons, 586 U.S. 38, 43 (2019) (per curiam)), and that “officers receive qualified immunity unless they could have ‘read’ the relevant precedent beforehand and ‘know[n]’ that it proscribed their specific conduct,” id. (quoting City and County of San Francisco v. Sheehan, 575 U.S. 600, 616 (2015) (alteration in original). In conducting this analysis, we consider the “totality of the circumstances,” although “the situation at the precise time” force is deployed “will often be what matters most.” Barnes v. Felix, 605 U.S. 73, 80 (2025). Olvera’s body camera fell to the ground after the first baton blow, but the audio of the encounter reflects that Olvera repeatedly yelled at Smith to “stop reaching” and to “stop resisting,” and Smith responded that he was not resisting and his hands were behind his back. 4 25-1809 Though we accept for purposes of this decision that Smith could prove that Olvera stuck him in the head with a baton, Smith agreed at his deposition that Olvera could have reasonably believed Smith possessed a weapon. Smith nevertheless argues that once he was face-down on the ground, any threat to Olvera’s safety diminished significantly. See Young, 655 F.3d at 1164 (concluding that if officer hit suspect with a baton while suspect “lay face-first on the ground,” the jury could readily conclude that the force used was excessive); Hyde v. City of Wilcox, 23 F.4th 863, 870 (9th Cir. 2022) (stating that the reasonableness of force used “may change as the circumstances evolve”). But Olvera alleges that Smith had one unrestrained hand and that during the struggle he either could not see it or it appeared to be reaching down to Smith’s pocket or waistband, and the camera footage confirms that Smith’s hand was free. We also consider that it was dark, Olvera was alone with Smith, and Smith had exhibited reckless conduct during the immediately preceding six-minute car chase that posed an obvious risk of danger to both the public and law enforcement—including colliding with a patrol vehicle and failing to stop after repeated orders and two PIT maneuvers. See, e.g., Plumhoff v. Rickard, 572 U.S. 765, 776
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