The Ninth Circuit Court of Appeals today released an opinion in GREGORY v. COUNTY OF MAUI, No. 06-15374, a civil rights appeal. The panel consisted of Diarmuid F. O’Scannlain, A. Wallace Tashima, and Milan D. Smith, Jr., Circuit Judges.
O’SCANNLAIN, Circuit Judge:
We must decide whether police officers used excessive force in violation of the Fourth Amendment in attempting to restrain an individual. I A On December 2, 2002, Richard Gregory and a friend were guests in a music studio operated by Vincent Finazzo and Jason Fuqua in Lahaina, Maui, Hawaii. Finazzo and Fuqua were playing music and working on new songs, and they eventually decided to leave the studio and asked Gregory to do the same. Gregory, however, had taken interest in a guitar he found and insisted on staying. An exchange soon became heated, as Gregory took on an increasingly pugnacious tone and posture, telling Finazzo, “Don’t make me hit you.” When Finazzo tried to call a friend of Gregory’s to calm him down, Gregory threw Finazzo’s cell phone to the ground. Gregory began to pace around the room, stating that “we’re all going . . .