Aleksandar MacKovski v. Ray Bex

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 7, 2020
• Docket: 18-55767
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 7 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEKSANDAR MACKOVSKI, No. 18-55767

Plaintiff-Appellant, D.C. No. 8:11-cv-01538-CJC-DFM v.

RAY BEX, Officer, City of Garden Grove MEMORANDUM* Police Department,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Submitted February 5, 2020** Pasadena, California

Before: IKUTA, CHRISTEN, and LEE, Circuit Judges.

After a prior panel of this circuit reversed and remanded Aleksandar

Mackovski’s 42 U.S.C. § 1983 claim for excessive force, Mackovski v. City of

Garden Grove, 666 F. App’x 649, 653 (9th Cir. 2016), the district court ordered

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). briefing on whether Officer Ray Bex was entitled to qualified immunity. The court

subsequently granted summary judgment to Officer Bex on qualified immunity

grounds. Because the parties are familiar with the facts and procedural history of

this case, we do not recite them here.

To determine whether an officer is entitled to qualified immunity, a court

considers “(1) whether there has been a violation of a constitutional right; and (2)

whether that right was clearly established at the time of the officer’s alleged

misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014). A court may

consider these two factors in either order. Id. We resolve this appeal on the

“clearly established” prong.

Mackovski admits that there is no case directly on point establishing that the

force Officer Bex used was unreasonable. Plaintiffs do not need case law that is

exactly on point, but existing precedent must place the contours of the right

“beyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015)). Mackovski relies on Smith v. City of Hemet,

394 F.3d 689 (9th Cir. 2005) (en banc) and Curnow ex rel. Curnow v. Ridgecrest

Police, 952 F.2d 321 (9th Cir. 1991), but neither are sufficient to support his

burden. Therefore, Officer Bex is entitled to qualified immunity.

2 The law of the case doctrine does not apply to Mackovski’s current appeal

because the prior panel did not consider qualified immunity. See Milgard

Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir. 1990).

AFFIRMED.