Judge Reinhardt gets it right in this one, and Judge Silberman gets it wrong. You can still sue for excessive force even if you were validly convicted of disobeying a police officer (here, for, inter alia, refusing to take your hands out of your pajama pockets). You can still be convicted of this offense even if the police subsequently wail on you; similarly, an initial refusal to obey doesn't give the police carte blanche to go medieval.
I say that not because I (long-ago) clerked for Judge Reinhardt. I'm more than happy to speak out -- as I often did when I was clerking (and thereafter) -- when I think he's missing the boat. But here, he happens to be right. There's a reason it's an 8-3.
