Split Ninth Circuit Panel Gives Elko Officer Qualified Immunity in Baton Case

On July 14, 2026, a divided Ninth Circuit panel ruled that an Elko police officer cannot be sued for damages over baton strikes during a November 2022 arrest. Our firm was not involved in this case, Smith v. Olvera.

According to the court, the man led police on a six-minute chase at night that ended in a crash. Once he was out of his truck, the officer struck him repeatedly with a baton, breaking his arm. The court accepted, for purposes of the ruling, that he was also hit in the head, and he says he lost two teeth. He says he was not resisting. The officer says one of the man's hands was free and appeared to reach toward his pocket or waistband.

What is qualified immunity?

Qualified immunity is a court-made rule. It protects government officials from paying damages unless earlier court decisions made it "clearly established" that their specific conduct was unconstitutional. In practice, courts often look for a prior case with similar facts.

Here, all three judges agreed a jury could find the force was excessive. But Judges Christen and Forrest held the officer could reasonably have believed the man had a weapon, and that no prior case clearly prohibited what he did. Judge Thomas dissented. He wrote that having a weapon alone does not justify deadly force, and that whether the man was making threatening moves, or was already incapacitated, was a factual dispute for a jury.

Why it matters in Nevada

The ruling is unpublished, so it is not binding precedent. Still, it shows how often these cases turn on small factual details and how important evidence is.

If you are hurt by police:

• Get medical care right away, and keep the records.

• Photograph your injuries, and save any video, including from witnesses.

• Write down names, badge numbers, and times.

• Call a civil rights lawyer quickly. Deadlines apply.

If you were injured by police anywhere in Nevada, call us at (702) 819-7770 for a free consultation.