MALAIKA BROOKS, Plaintiff-Appellee, v. CITY OF SEATTLE, Defendant, and STEVEN L. DAMAN, in his capacity as an officer of the Seattle Police Department; DONALD M. JONES, in his individual capacity as an officer of the Seattle Police Department; JUAN M. ORNELAS, in his individual capacity as an officer of the Seattle Police Department, Defendants-Appellants.
No. 08-35526
D.C. No. 2:06-cv-01681-RAJ
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed March 26, 2010
Before: Cynthia Holcomb Hall, Diarmuid F. O’Scannlain, and Marsha S. Berzon, Circuit Judges.
4913
Argued and Submitted July 10, 2009—Seattle, Washington
OPINION
Opinion by Judge Hall; Dissent by Judge Berzon
Karen L. Cobb and Theron A. (Ted) Buck, Stafford Frey Cooper, Seattle, Washington, for the defendants-appellants.
Eric Zubel, Eric Zubel, PC, Seattle, Washington, for the plaintiff-appellee.
OPINION
HALL, Circuit Judge:
Sergeant Steven Daman, Officer Juan Ornelas, and Officer Donald Jones (collectively “the Officers“) appeal the district court’s denial of the Officers’ motion for summary judgment on Malaika Brooks’s
I.
On November 23, 2004, SPD Officer Juan Ornelas stopped Brooks for speeding in a school zone.2 The situation deteriorated rather quickly. Brooks claimed she had not been speed
Brooks refused to leave her car, remaining in it with the ignition running and her door shut. Officer Jones then showed Brooks his Taser, explaining that it would hurt “extremely bad” if applied. Brooks told them she was pregnant and that she needed to use the restroom. The officers discussed where to tase her, deciding on her thigh. Officer Jones demonstrated the Taser for her. Brooks still remained in the car, so Officer Ornelas opened the door and reached over to take the key out of the ignition, dropping the keys on the floorboard.5
Officer Ornelas then employed a pain compliance technique, bringing Brooks’s left arm up behind her back, whereon Brooks stiffened her body and clutched the steering wheel in order to frustrate her removal from the car. Officer Jones discharged the Taser against Brooks’s thigh, through her sweat pants, which caused Brooks “tremendous pain.” She began to yell and honk the car’s horn.
Within the next minute, Officer Jones tased her two more times, against her shoulder and neck, the latter being the only area of exposed skin. Brooks was unable to get out of the car herself during this time because her arm was still behind her back.6 The third tasing moved Brooks to the right, at which point Officers Ornelas and Jones were able to extract her from
Brooks was charged with (1) violation of
Brooks then filed this action against the Officers, asserting a claim under
II.
We review de novo a denial of summary judgment based on qualified immunity. See Lee v. Gregory, 363 F.3d 931, 932 (9th Cir. 2004). Our review is limited to the question of whether, assuming all conflicts in the evidence are resolved in Brooks’s favor, the Officers would be entitled to qualified immunity as a matter of law. Id.
III.
Qualified immunity entitles the Officers “not to stand trial or face the other burdens of litigation” on the
A. Constitutional Violation
In her complaint, Brooks alleged that the Officers violated her constitutional rights by using excessive force during her arrest.
1. Probable Cause
Beginning in her opposition to the Officers’ motion for summary judgment, Brooks has argued that the Officers did not have probable cause to arrest her for refusing to sign the Citation to Appear because she did not so refuse. Therefore, she contends, there was no need for force, and any force used was constitutionally unreasonable. See Headwaters Forest Def. v. County of Humboldt, 240 F.3d 1185, 1204 (9th Cir. 2000). As an initial matter, we note that “establishing a lack of probable cause . . . does not establish an excessive force claim,” Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004). Thus, the result, even if we were to find no probable cause, is not as obvious as Brooks would make it. Indeed, an arrestee’s resistance may support the use of force regardless of whether probable cause existed. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir. 2001) (finding an arrestee’s actions in “stiffen[ing] her arm and attempt[ing] to pull it away” to be resistance justifying the officer’s use of force in handcuffing regardless of whether there was probable cause to arrest her).
[1] Nonetheless, the existence of probable cause may be considered as a part of the totality of circumstances affecting
[2] “Probable cause exists when the facts and circumstances within the officer’s knowledge are sufficient to cause a reasonably prudent person to believe that a crime has been committed.” Lassiter v. City of Bremerton, 556 F.3d 1049, 1053 (9th Cir. 2009). Though we agree with the district court that the Officers did have probable cause to arrest Brooks, we arrive at that conclusion by a different path.8
[3] Brooks concedes that she refused to sign the Notice, which amounted to a violation of
However, because Virginia v. Moore does not answer the
[4] First, the Officers had clear authority for their initial arrest and detention of Brooks. Brooks does not dispute that her initial traffic violation permitted the Officers to arrest and to detain her until they issued her a Notice. See
[5] The Officers’ authority to arrest Brooks for these misdemeanors would ordinarily last no longer than necessary to issue her a Citation. See
[6] Based on Brooks’s undisputed uncooperative behavior, a reasonably prudent person would have believed Brooks was violating section 9A.76.020 by obstructing the Officers’ attempts to obtain her signature and complete the traffic stop.
Additionally, Washington state courts have recognized that although officers generally should issue citations for minor traffic violations instead of making custodial arrests, there might be “reasonable grounds” for making an arrest, such as when “there was reasonable grounds to believe that the accused will refuse to respond to a citation.” State v. Hehman, 578 P.2d 527, 528-29 (Wash. 1978); see State v. Covington, 144 Wash. App. 1012 (Wash. Ct. App. 2008) (finding it reasonable to believe that person without identification, claiming not to own the vehicle he was driving, would disregard a promise to appear on the citation if one were given); State v. Jordan, 747 P.2d 1096, 1098 (Wash. Ct. App. 1987) (same); State v. McIntosh, 712 P.2d 319 (Wash. Ct. App. 1986) (same and defendant also gave suspicious account of his activity on evening of arrest).
[7] Even if Brooks never in fact received the Citation, her conduct while in detention for the speeding violation and failure to sign the Notice made it reasonable to believe that she also would not sign a Citation were one issued. Brooks has admitted being uncooperative during her detention: she tried to take her driver’s license away from Officer Ornelas; repeatedly refused his requests to sign the Notice; repeatedly refused Officer Jones’s requests to do the same, even when told it was her legal duty to sign; accused Officer Jones of lying to her about the law and of racism; and became upset, all while sitting in her car with the ignition running. Officer Ornelas called for backup because of her behavior. When Sergeant Daman arrived at the scene, he asked her again to sign, and she refused. Under these particular circumstances, it would be reasonable to believe that serving Brooks the Citation would be futile. Therefore, even if Brooks’s account of the incident were true, the futility of issuing the Citation would provide the Officers probable cause to arrest her for failure to sign the Notice.
[8] An excessive force claim is analyzed under the Fourth Amendment’s “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388 (1989). This inquiry “requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Id. 396 (internal quotation marks omitted). Because reasonableness “is not capable of precise definition or mechanical application,” the inquiry requires “attention to the facts and circumstances of each particular case, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. These factors should be considered in relation to the amount of force used. See Smith, 394 F.3d at 701. Reasonableness is judged from the perspective of a reasonable officer on the scene, making allowances for the split-second judgments officers are required to make in “tense, uncertain, and rapidly-evolving” situations. Graham, 490 U.S. at 396-97.
The right to employ “some degree of physical coercion or threat thereof” to effect an arrest accompanies the right to make the arrest or investigatory stop, id. at 396, but the force must be necessary to be reasonable, Blankenhorn, 485 F.3d at 480. Where police have control over a suspect, the use of further force to bring the suspect under control may be unreasonable. See Headwaters Forest Def., 276 F.3d at 1125 (use of pepper spray on protesters already under police control held excessive). Officers are not required to use the least intrusive means available; they simply must act within the range of reasonable conduct. See Scott v. Heinrich, 39 F.3d 912, 915 (9th Cir. 1994). Determination of that reasonable range requires consideration of the totality of the circumstances, Forrester v. City of San Diego, 25 F.3d 804, 806 n.2 (9th Cir. 1994), including whether a warning was given, Deorle v. Rutherford, 272 F.3d 1272, 1283-84 (9th Cir. 2001), and the availability
The Officers argue that the use of a Taser to gain Brooks’s compliance—after previous unsuccessful, lawful attempts to gain her cooperation and warnings the Taser would be used—was not objectively unreasonable. The Officers note that a Taser’s use in “drive-stun” mode inflicts only transitory, localized pain. Applying the Graham factors, the Officers first claim that the alleged crime was the more serious crime of resisting arrest, not the failure to sign the Notice. Second, they contend that, although Brooks initially posed only a minimal risk, that risk escalated when she became confrontational and refused to leave her running car. Third, and finally, they point out that Brooks was actively resisting arrest by using force to immobilize herself and remain in the car.
a. The Amount of Force
We first assess the quantum of force used by the Officers. See Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007). The Officers claim there has been a significant misunderstanding of the force involved in the manner in which the Taser was used here. We are inclined to agree.
[9] The Taser’s use in “touch” or “drive-stun” mode—as the Officers used it here—involves touching the Taser to the body and causes temporary, localized pain only. According to the SPD’s Use of Force Training Guideline,10 this usage was
In two recent decisions, we addressed excessive force claims involving the use of Tasers. See Mattos v. Agarano, 590 F.3d 1082 (9th Cir. 2010) (per curiam) (holding that the use of a Taser stun on a suspected domestic violence victim while attempting to arrest her husband did not amount to excessive force); Bryan v. McPherson, 590 F.3d 767 (9th Cir. 2009) (holding that shooting a Taser gun at a disoriented, half-naked man while stopping him for a seatbelt violation constituted excessive force).
The Mattos court did not engage in an in-depth analysis of the quantum of force involved in the use of a Taser. See Mattos, 590 F.3d at 1087 (“[I]t is difficult for us to opine with confidence regarding either the quantum of force involved in a deployment of a Taser gun or the type of force inflicted.“). In Mattos, a police officer applied a Taser directly to plaintiff’s back, causing her to feel “an incredible burning and painful feeling locking all of [her] joints.” Id. at 1085 (internal quotation marks omitted; alteration in original). The panel, however, cited conflicting testimony regarding the amount of force used
The Bryan panel undertook a more detailed analysis of the quantum of force. The panel concluded that the use of a Taser, in a manner equivalent to dart mode, “constitute[s] an intermediate, significant level of force that must be justified by a strong government interest that compels the employment of such force.” Bryan, 590 F.3d at 774 (internal quotation marks omitted).12 In Bryan, a police officer discharged his X26 Taser from a distance of approximately 20-25 feet, embedding a barbed electrical probe into Bryan’s arm. Id. at 771. The X26’s powerful electrical pulse delivered an excruciating pain throughout Bryan’s body and caused Bryan to lose all muscular control, fall face first onto the pavement, shatter four front teeth, and suffer facial abrasions and swell
[10] The force at issue here is markedly different than the force in Bryan, and, unlike in Mattos, we have the benefit of a fully-developed record on the use of a Taser in drive-stun mode. The use of the Taser in drive-stun mode is painful, certainly, but also temporary and localized, without incapacitating muscle contractions or significant lasting injury. Brooks said she sustained burn marks and now has scars on her upper arm and thigh, which is certainly not insignificant, but these injuries are far less serious than those inflicted on Bryan by the X26 Taser—excruciating pain throughout his entire body, temporary paralysis, facial abrasions, shattered teeth, and a sharp barb lodged into his flesh. Thus, the use of the Taser in drive-stun mode—as opposed to dart mode—seems unlike the force used in Bryan or uses of force which this court has previously considered severe. See, e.g., Davis, 478 F.3d at 1055 (holding that the force used was “extremely severe” when officer slammed suspect head-first into the wall, breaking his neck, then pressed to the ground by the officer’s knee and punched); Smith, 394 F.3d at 701-02 (severe when officers pepper sprayed suspect four times and sicced a police dog on him three times while he was pinned down, then failed to rinse the spray from his eyes and bite wounds). Indeed, the
b. The Graham Factors
i. Severity of the Crime
[11] Brooks was detained for refusing to sign her name on the Notice. The Officers were attempting to take her into custody for refusing to sign the Citation to Appear (albeit erroneously, under the facts as Brooks states them). Neither of these crimes were serious. As discussed above, see supra Part III.A.1, Brooks’s behavior also gave the Officers probable cause to arrest her under
ii. Threat Posed to Officers or Bystanders
[12] The threat posed is the most significant Graham factor. See Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994). The district court found that Brooks posed no danger to the public or officers because she never used or threatened force against the Officers (using it only to immobilize herself) and could not have hurt anyone with her car. The last point stems from the court’s misunderstanding of the record; even Brooks admits that the keys remained on the floorboard of her car and were not in the Officers’ possession. Whether the keys were on the floorboard or in the Officers’ possession, it seems clear that Brooks was not going to be able to harm anyone with her car at a moment’s notice. Nonetheless, some threat she might retrieve the keys and drive off erratically remained, particularly given her refusal to leave the car and her state of agitation.
[13] It would also be incorrect to say Brooks posed no threat to officers. While she might have been less of a threat because her force so far had been directed solely at immobilizing herself, a suspect who repeatedly refuses to comply with instructions or leave her car escalates the risk involved for officers unable to predict what type of noncompliance
iii. Resistance to Arrest and Risk of Flight
[14] Though the risk of flight, as described above, was present but small, there is little question that Brooks resisted arrest: the district court noted she “does not deny that she used force to resist the [O]fficers’ efforts,” she grasped the steering wheel and wedged herself between the seat and steering wheel, and she refused to get out of the car when asked. Brooks’s conduct was defined by the SPD Use of Force Training Guideline as “actively resistant” because she employed force to defeat the Officers’ attempts to control her. Our precedent also classifies Brooks’s conduct as active resistance. See Chew, 27 F.3d at 1442 (hiding and fleeing is resisting arrest and offering physical resistance to an officer’s efforts constitutes a greater level of active resistance). While Brooks’s resistance may not have been violent or aggressive, those aspects are more relevant to the second Graham factor, leaving the fact of her resistance here to weigh against finding the force used excessive.
c. Totality of the Circumstances
In addition to the Graham factors described above, a consideration of the totality of the circumstances may look to
[15] We agree with the Forrester panel here: the district court’s general and vague statement that there were “numerous other means of removing” Brooks reflects after-the-fact speculation and fails to address what else these officers could have done in the situation that confronted them at that moment, when they needed to get the resistant Brooks out of the car to arrest her. Furthermore, this case is unlike Smith and Davis, where there was evidence suggesting it would have been reasonable to use less force. Here, there has been no departmental determination that the Officers could have used alternative methods. Indeed, the Officers followed the SPD’s Use of Force Training Guideline, applying pain compliance techniques (of which drive-stun Taser use was one) to control an actively resisting suspect.17 It is true that two other
[16] Other factors we have considered also weigh against finding a constitutional violation. The Officers gave multiple warnings that a Taser would be used and explained its effects. See Deorle, 272 F.3d at 1284 (finding that warnings should be given, when feasible, before force more serious than that employed here is used); see also Bryan, 590 F.3d at 780 (considering the failure to give a warning as a factor militating against the reasonableness of X26 Taser usage). While the court may consider what the officers knew about a suspect’s health, see Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994), the record indicates that, when the Officers discovered Brooks’s pregnancy, they took steps to employ a localized type of force away from her stomach. Brooks’s arrest was supported by probable cause under Washington law and the Officers’ use of force was in accordance with the SPD’s Use of Force Training Guideline. See Smith, 394 F.3d at 703 (considering whether the officer’s conduct “violated applicable police standards” in assessing the reasonableness of the force
[17] The Taser was used three times in this case, which constitutes a greater application of force than a single tasing. Nonetheless, in light of the totality of the circumstances, this does not push the use of force into the realm of excessive. After the first use, Brooks did not communicate that she was willing to comply with the Officers’ commands, but instead started yelling and honking her horn, which would likely have been perceived by the Officers as an escalation of her resistance. The same behavior followed the second tasing. The third tasing moved Brooks to the right, at which point Officers Ornelas and Jones were able to extract her from the car. Therefore, while using the Taser three times makes this a closer case, we find that it does not show excessive force in light of the corresponding escalation of Brooks‘s resistance and the fact that it was the third tasing that appeared to dislodge her such that the Officers could finally extract her from her car and gain control over her.
[18] In conclusion, then, this case presents a less-than-intermediate use of force, prefaced by warnings and other attempts to obtain compliance, against a suspect accused of a minor crime, but actively resisting arrest, out of police control, and posing some slight threat to officers. In this situation, we find, assuming all the facts in Brooks‘s favor, that the Officers’ behavior did not amount to a constitutional violation. See Arpin, 261 F.3d at 921-22 (finding no excessive force when physical force was used to handcuff suspect who had refused to cooperate with an officer‘s requests for identification and stiffened her arm and attempted to pull free from the officer); Forrester, 25 F.3d at 807-08 (9th Cir. 1994) (finding no excessive force when injury-causing pain compliance holds were used against passively resisting demonstrators); see also Draper, 369 F.3d at 1278 (finding no excessive force when officer used Taser gun to effect the arrest of an
IV.
[19] Because the district court found that the Officers’ conduct amounted to excessive force, it declined to find qualified immunity for the Officers on Brooks‘s state law claims. See Staats, 991 P.2d at 627-28 (holding that immunity is not available for assault and battery claims “arising out of the use of excessive force to effectuate an arrest“). However, because we find the Officers’ use of force reasonable and not excessive under the Fourth Amendment, we reach the issue. Under Washington law, force used by a police officer is not unlawful “[w]henever necessarily used . . . in the performance of a legal duty.”
V.
For the reasons discussed above, we REVERSE the district court and REMAND for proceedings consistent with this opinion.
BERZON, Circuit Judge, dissenting:
I dissent.
Here is what happened to Malaika Brooks, a pregnant mother, as she was driving her son to school one day: Two, soon three, police officers surrounded her. The officers thought she was speeding in a school zone; she says she was not. Brooks provided her identification when asked, so there was no doubt who she was or where to find her. The officers wrote her a ticket but she refused to sign it. Refusing to sign a speeding ticket was at the time a nonarrestable misdemeanor; now, in Washington, it is not even that.1 Brooks had no weapons and had not harmed or threatened to harm a soul. Although she had told the officers she was seven months pregnant, they proceeded to use a Taser on her, not once but three times, causing her to scream with pain and leaving burn marks and permanent scars.
I fail utterly to comprehend how my colleagues are able to
I. Background
As the majority‘s fact recital glosses over some critical facts, I begin by supplementing it briefly.
Malaika Brooks was driving her eleven-year-old son to school at the African American Academy when she was stopped for speeding in a school zone.2 She gave the officer her license and told her son to get out of the car and go to school. The officer, Officer Ornelas, prepared a notice of infraction and asked Brooks to sign it. Convinced it was not she but the driver in front of her who had been speeding, Brooks told Officer Ornelas she would not sign the ticket because she did not want to admit fault. She also grabbed her driver‘s license from Officer Ornelas but gave it back after he told her he still needed it.
The Officers allege that they also issued Brooks a criminal citation and notice to appear because she would not sign the notice of infraction and that she refused to sign that as well. Brooks maintains she was only asked to sign the notice of infraction. For purposes of this appeal, we are required to view the facts in the light most favorable to Brooks, the non-moving party, and so, as the majority recognizes, must assume she was never asked to sign a criminal citation.
Officer Jones told Brooks she would have to go to jail if she did not sign the ticket. He called his sergeant, Sergeant Daman, who soon arrived on the scene.4 Sergeant Daman asked Brooks whether she would sign the ticket. When she would not, he instructed Officers Ornelas and Jones to “book her.” In response, Officer Ornelas told Brooks to get out of the car. She refused. Officer Jones then produced his Taser. He yelled at Brooks, asking her if she knew what the Taser was, how many volts it had, and what it could do to her. She told him she did not. She also told him that she was seven months pregnant and needed to use the restroom.
After using the Taser for the third time, the Officers dragged Brooks from her car and laid her on her stomach in the street. She continued yelling for help and told the Officers they were hurting her stomach. They held her down until they had handcuffed her; then they walked her to the patrol car and drove her to the police station.
The Taser left burn marks on Brooks‘s thigh, arm, and neck. She has scars on her thigh and upper arm. Her doctor has told her that the scar on her arm is likely permanent.
II. Probable Cause
At the outset, I disagree with the majority‘s conclusion that the Officers had probable cause to place Brooks under custodial arrest. Whether Brooks‘s arrest was lawful has implications for both the federal Fourth Amendment excessive force inquiry and the question whether the Officers are entitled to qualified immunity from Brooks‘s state law claims.
First, the majority‘s assertion that the Officers had “clear authority for their initial arrest and detention of Brooks” is incorrect. Maj. op. at 4924 (emphasis added). The Officers
The majority‘s citation to
In other words, the Officers did not have authority to arrest Brooks and serve her with a citation and notice to appear until she refused to sign the notice of infraction. Only then had she committed a misdemeanor. See
Because the record, viewed in the light most favorable to Brooks, is bereft of facts to support a finding that the Officers had probable cause to place Brooks under custodial arrest, the majority, casting about for a theory, creates one from thin air: The majority maintains that there was probable cause to arrest Brooks for obstructing an officer. Brooks was never charged with obstructing an officer,5 nor have the Officers ever sug-gested that they had probable cause to arrest Brooks on that ground. Because the Officers never raised this theory in their briefs, Brooks has had no opportunity to dispute it. I would consider the question waived and not address it. See Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007); United States v. Williamson, 439 F.3d 1125, 1138 (9th Cir. 2006).
In any event, the majority fails satisfactorily to explain how Brooks “obstructed” the Officers in the discharge of their powers or duties by refusing to sign the notice of infraction. See
Brooks‘s behavior was in no way similar to Kenneth Lassiter‘s. Kenneth Lassiter repeatedly failed to obey the officers and physically interfered with the officers’ attempt to require him to do so, “ma[king] it impossible” for them to carry out their duty. Id. Brooks initially cooperated with the Officers: she pulled over promptly and produced her driver‘s license when asked to do so. As a result, the Officers were able to carry out their duty of identifying her and issuing a notice of traffic infraction. Then she refused to sign the notice. That‘s it. There was noncompliance with a police request, but where is the “obstruction“?
Far more similar to Brooks‘s behavior, although considerably more colorable as an obstruction offense, is the behavior of the plaintiff in Palmer v. Sanderson, 9 F.3d 1433 (9th Cir. 1993). Palmer, stopped on suspicion of driving while intoxicated, submitted to two field sobriety tests, but then told the officer he was tired of taking tests and returned to his car. Palmer offered to answer questions in his car or to accompany the officer to the police station to take a breath test. We held that these facts, if credited, established that “no reasonable officer could believe there was probable cause to arrest Palmer for ‘obstructing a public servant,‘” because Palmer, though uncooperative, did not actually flee the scene. Id. at 1437.
The majority should have reached the same result here as in Palmer. Brooks stopped her car, she provided identification, and the Officers issued a notice of infraction. The failure to sign the notice no more prevented the Officers from carrying out their duty than did Palmer‘s refusal to cooperate further after taking two field sobriety tests.
In short, there was just no cause to arrest Brooks for obstructing an officer. None. That is probably why the Officers have never suggested that there was.
The majority also comes up with an alternative theory to justify the custodial arrest, also never argued by the Officers and so also waived, relying on State v. Hehman, 578 P.2d 527 (Wash. 1978). This approach is not a whit better on the merits than the majority‘s other creation.
Hehman held that custodial arrest is generally not proper for a minor traffic violation, id. at 529, but suggested that such an arrest might be permissible “when there are reasonable grounds to believe that the accused will refuse to respond to a citation.” Id. at 528 (quoting ABA Standards Relating to Pretrial Release § 2.1 (Tent. Draft Mar. 1968)). In all three cases adopting that suggestion cited by the majority, including one unpublished decision by the Washington Court of Appeals, the person arrested failed to produce any identification and either did not own or did not claim to own the vehi-
Here, Brooks‘s explanation for her refusal to sign was that she did not want to indicate she was guilty, not that she intended to ignore the ticket. And, given that the Officers had and recorded Brooks‘s name and address, there were no reasonable grounds for believing that the City would be unable to hold Brooks accountable for the infraction or misdemeanor. Thus, Washington‘s narrow exception to the usual preclusion of custodial arrest for a minor traffic violation does not apply, and the majority‘s conclusion that the Officers had probable cause to place Brooks under custodial arrest for the traffic violation itself is wrong.
The absence of probable cause to support a custodial arrest affects both the excessive force inquiry and the question whether the Officers are entitled to state qualified immunity.
III. Excessive Force
Because I find the majority‘s excessive force analysis entirely unpersuasive at each turn, I revisit each step of the objective reasonableness inquiry under Graham v. Connor, beginning with “the nature and quality of the intrusion on [Brooks‘s] Fourth Amendment interests.” Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)).
A. Nature and Quality of Intrusion
I begin from the proposition that “[t]he three factors articulated in Graham, and other factors bearing on the reasonableness of a particular application of force, are not to be considered in a vacuum but only in relation to the amount of force used to effect a particular seizure.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (quoting Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994)). The majority acknowledges this court‘s determination in Mattos v. Agarano, 590 F.3d 1082 (9th Cir. 2010) (per curiam), that a single application of a Taser in drive-stun mode to the back of a suspect‘s hand amounted to “a serious intrusion into the core of the interests protected by the Fourth Amendment: the right to be ‘secure in [our] persons.‘” Id. at 1087 (quoting
As to the majority‘s first factor, we have held that Tasers used in dart mode “constitute an intermediate, significant level of force that must be justified by a strong government interest that compels the employment of such force.” Bryan v. McPherson, 590 F.3d 767, 774-75 (9th Cir. 2009) (quoting Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir. 2003)) (internal quotations and brackets omitted). The majority observes that using a Taser in drive-stun mode does not cause the same neuromuscular incapacitation that the dart mode produces. Noting that the Taser deployment in Bryan caused the suspect to fall to the pavement and shatter his teeth, the majority concludes that, “when compared to the far more serious intrusion in Bryan, we find
As to the majority‘s second factor, the majority minimizes the amount of force used in this case by equating it to “pain-compliance techniques,” which it asserts “this court has found involve a ‘less significant’ intrusion upon an individual‘s personal security than most claims of force.” Maj. op. at 4932 (quoting Forrester v. City of San Diego, 25 F.3d 804, 807 (9th Cir. 1994)). The majority states, somewhat misleadingly, that “[t]he use of a Taser in drive-stun mode is considered a pain compliance technique . . . by . . . our jurisprudence.” Maj. op. at 4932 n.14 (citing San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 969 n.8 (9th Cir. 2005)). But San Jose Charter did not distinguish between Taser modes or even mention the drive-stun mode; it simply noted that the officers in that case “did not bring with them any of the variety of non-lethal ‘pain compliance’ weapons used by police forces, such as tasers or stunbag shotguns.” 402 F.3d at 969 n.8.
In fact, that footnote defeats the majority‘s suggestion that pain-compliance techniques are necessarily a “less significant” intrusion than most claims of force. The other pain-compliance weapon identified in the footnote, a stunbag shotgun, has been recognized by this court as capable of causing “grave physical injury.” Deorle, 272 F.3d at 1279 (holding that “the degree of force used by [the officer] is permissible
Forrester did not hold that pain compliance techniques are constitutionally permissible as a matter of law. Nor did it establish a rule of qualified immunity for the use of pain compliance techniques to arrest passively resisting misdemeanants. Forrester simply held that whether the use of [Orcutt Police Non-chakus, two sticks of wood connected at one end by a cord] as a pain compliance technique constituted excessive force was a question of fact that was properly submitted to the jury for its decision.
Headwaters Forest Defense v. County of Humboldt (Headwaters I), 240 F.3d 1185, 1201 (9th Cir. 2000), vacated on other grounds, 534 U.S. 801 (2001) (internal quotation omitted).
The majority‘s emphasis on placing a specific Taser mode in a predetermined category of degree of force for purposes of a Graham analysis is thus entirely wrongheaded. In short, “[r]ather than relying on broad characterizations, we must evaluate the nature of the specific force employed” on Brooks in this case. Bryan, 590 F.3d at 774; see Deorle, 272 F.3d at 1279 (considering the specific effects of the force used on the suspect as part of the quantum of force inquiry).
Doing so, I would conclude that the degree of force used on Brooks was significant. Before Officer Jones used his Taser on Brooks, Officer Ornelas pulled her left arm up behind her back and held it there. That “pain-compliance” hold prevented Brooks from complying with the Officers’ subsequent demands that she get out of her car. While Brooks was thus immobilized, Officer Jones used his Taser on her three times: first he applied it to her thigh, then he “dug it into” her left arm, and finally he deployed it against her bare
In sum, the Officers inflicted a significant and frightening amount of force at a time when Brooks was already immobilized by a pain-compliance hold. The three Graham factors, and other factors bearing on reasonableness, must be considered in light of that force.
B. Governmental Interests at Stake
1. Severity of the Crime
“The character of the offense is often an important consideration in determining whether the use of force was justified.” Deorle, 272 F.3d at 1280. As the majority recognizes, for purposes of this appeal the only crime Brooks committed was the misdemeanor of refusing to sign the notice of infraction. Maj. op. at 4919 n.3. The majority acknowledges that that crime was not “serious.” Id. at 4932. In fact, it was trivial. At the time, it was not an arrestable offense, and today, the signature requirement no longer exists. See 2006 Wash. Legis. Serv. Ch. 270 (H.B. 1650). This factor favors Brooks overwhelmingly.
Even if the majority is correct that there was probable cause to arrest Brooks for obstructing an officer, that crime, as committed by Brooks (if it was), was also minor. See Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007)
This court has held that crimes significantly more severe than obstructing an officer do not justify the use of force against a suspect. In Smith, the suspect‘s wife called the police to report that he had physically abused her. Acknowledging “the seriousness and reprehensibility of domestic abuse,” the court nonetheless held that “the circumstances are not such in this case as to warrant the conclusion that Smith was a particularly dangerous criminal or that his offense was especially egregious.” Smith, 394 F.3d at 702-03. The court concluded that “the nature of the crime at issue provides little, if any, basis for the officers’ use of physical force.” Id. at 703. In comparison, Brooks was many fathoms from being a “dangerous criminal.” She was not suspected of harming anyone at all, just of refusing to sign a piece of paper. The crimes she is alleged to have committed were trivial and provided no justification for the use of any force, let alone the significant force the Officers employed.
The majority points to Mattos, in which this court held that using a Taser against a woman charged with obstructing government operations did not constitute excessive force. See 590 F.3d at 1089. In Mattos, however, the police had responded to a domestic violence call, and the woman‘s actions prevented them from arresting her husband, who was “belligerent and appeared to be intoxicated.” Id. at 1088. The court considered the situation particularly dangerous and noted that “more officers are killed or injured on domestic violence calls than on any other type of call.” Id. (quoting United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005)). We acknowl-
2. Immediate Threat to the Safety of Others
The “most important single element of the three [Graham] factors [is] whether the suspect poses an immediate threat to the safety of the officers or others.” Smith, 394 F.3d at 702 (quoting Chew, 27 F.3d at 1441) (emphasis added). Had the majority applied this factor correctly, it is inconceivable that it would have determined that Brooks presented an “immediate threat.” Instead, the majority excises the word “immediate” from the inquiry, departs from the record to speculate about actions Brooks might have taken, and concludes, rather inexplicably, that a mother driving her son to school did pose “some threat.” Maj. op. at 4934. That is not true on this record and, in any event, under Graham, not enough.
The majority offers three reasons for its conclusion that Brooks posed “some threat.” None is remotely convincing.
First, the majority suggests Brooks might have retrieved her car keys from the floorboard, where Officer Ornelas had dropped them, and “drive[n] off erratically.” Id. at 4933. To begin with, it is very unlikely that Brooks, who was seven months pregnant and weighed over 240 pounds, was even capable of getting to her keys, restarting the ignition, and driving off before the Officers could stop her. Nor is there any indication whatever in the record that Brooks was inclined to flee. Had she been, she had ample opportunity to do so; instead, she provided identifying information when asked and waited while Officer Ornelas wrote a ticket.
The stacked-up, unsubstantiated speculations that Brooks might have been able to retrieve the keys and might have decided to drive off (although she did not when she had the keys) and might have driven erratically if she did drive off and might have endangered people had she done so simply won‘t do as a basis for believing Brooks posed a danger to someone. Indeed, if Officer Ornelas really believed she was going to take off and endanger people, all he had to do was hold on to the keys rather than drop them in the car.
Second, the majority contends that Brooks posed a threat to the Officers’ safety because she had refused to comply with their demands that she leave her car, and they were “unable to predict what type of noncompliance might come next.” Id. at 4933-34. Like the earlier suggestion that Brooks might retrieve her keys and drive off erratically, the suggestion that she might engage in some unpredictable and dangerous act of
The majority cites Officer Jones‘s incident report, which recounts his assessment of the situation as “very dangerous.” But “a simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.” Deorle, 272 F.3d at 1281. Officer Jones says he was concerned because the car
Finally, the majority relies, entirely inappropriately, on the Washington legislature‘s determination that obstructing an officer is an arrestable offense to conclude that “Brooks posed the sort of threat that it was appropriate to remove from the streets.” Maj. op. at 4934. First, as I have already explained, Brooks was not even arguably guilty of obstructing an officer. Second, it cannot be the case that every person who obstructs an officer also “poses an immediate threat to the safety of the officers or others.” Smith, 394 F.3d at 702. “[A]n officer‘s use of force must be objectively reasonable based on his contemporaneous knowledge of the facts.” Deorle, 272 F.3d at 1281. This court cannot judge whether a suspect posed an immediate threat to the safety of others simply by looking to whether she is suspected of an arrestable offense. Instead, there must be an “articulable basis” in the record for believing the suspect is not only a suspect but a dangerous one. Chew, 27 F.3d at 1441. In this case, it is clear there was no such basis, “articulable” or otherwise. Thus, this “most important” Graham factor weighs heavily in Brooks‘s favor. Smith, 394 F.3d at 702.
3. Resistance to Arrest or Evading Arrest by Flight
The third Graham factor is whether the suspect was “actively resisting arrest or attempting to evade arrest by flight.” Smith, 394 F.3d at 701 (quoting Graham, 490 U.S. at 396). The majority begins by asserting that “the risk of flight . . . was present.” Again, that is the wrong inquiry. The question is not whether Brooks might have been able to flee had she decided to try, but whether she was “attempting to evade
As to the question of resisting arrest, the majority is likely correct that Brooks‘s conduct would have been classified as “actively resistant” under the Seattle Police Department‘s Use of Force Training Guideline. The guideline defines an “actively resistant” suspect as one who “physically tenses his or her muscles and/or locks their arms and legs using resistive tension to avoid being controlled by the officer.” Brooks does not dispute the Officers’ report that she held on to the steering wheel and braced her legs against the floor to avoid being pulled from her car.
All told, however, Brooks‘s resistance was minimal. The majority misleads when it says she “employed force to defeat the Officers’ attempts to control her.” Maj. op. at 4934. Although she tensed her muscles to prevent her own body from being moved, she did not use force against the Officers. This level and type of resistance, if it weighs against a finding of excessive force at all, does so only slightly. See Smith, 394 F.3d at 702-03 (concluding that the suspect‘s resistance was not “particularly bellicose” because “he did not attack the officers,” even though he “continually ignored the officers’ requests to remove his hands from his pajamas and to place them on his head” and “shout[ed] expletives at the officers“); see also Davis, 478 F.3d at 1056 (holding that a suspect who was “somewhat uncooperative and resisted [the officer‘s] attempts to search his pockets” was not “actively resisting arrest“).
C. Totality of the Circumstances
An additional factor this court may consider in its Graham analysis is whether the Officers’ conduct “violated applicable police standards.” Smith, 394 F.3d at 703. This factor is particularly important in a case, like this one, in which there was
Officer Ornelas, testifying in Brooks‘s criminal trial, confirmed that departmental regulations prohibited taking Brooks into custody for refusing to sign the notice of infraction:
PROSECUTOR: So, then just so I make sure I am clear then and to make sure I‘m not misunderstanding, although she refused to sign the speeding ticket, which itself is a crime, you did not book her for that.
ORNELAS: Correct, sir.
PROSECUTOR: Could you within your discretion if you had wanted to at that point?
ORNELAS: Do what, sir?
PROSECUTOR: Arrest her for refusing to sign the speeding ticket —
ORNELAS: No, sir.
Because the Officers knew they had no authority to effect a custodial arrest, they were not performing a legal duty and Brooks was not refusing to comply “with a lawful process.” Under the Seattle Police Department‘s own policies, then, the Officers were not justified in using any force. The Officers’ failure to comply with departmental standards is evidence a jury could rely on in deciding that the repeated use of a Taser — any Taser — on Brooks was unreasonable. See Smith, 394 F.3d at 703.
Again, the Officers had no authority to effect a custodial arrest. They had already obtained Brooks‘s name and address on the notice of infraction, and there was no need to compel her to sign the notice. The Officers could simply make a notation indicating that Brooks had not signed — in fact, they did exactly that. The clear alternative open to the Officers in this case — and one infinitely more sensible than the route they chose — was to allow Brooks to go on her way.
Finally, the majority maintains that the Officers’ decision, upon being informed of Brooks‘s pregnancy, “to employ a localized type of force away from her stomach . . . . mitigate[s] against a finding of excessive force.” Id. at 4936. I fail to see how the majority could so conclude. The Officers could not have known how this woman who was seven months pregnant would respond, physically or psychologically, to the repeated application of thousands of volts of electricity to any part of her body. They could not be sure, for instance, that the pain and shock would not cause premature labor. See March of Dimes, Preterm Labor and Birth: A Serious Pregnancy Complication (April 2008), http://www.marchofdimes.com/pnhec/188_1080.asp (citing physical abuse and stress as risk factors for premature labor). Brooks‘s physical condition militates in favor of finding excessive force.
In these circumstances, no amount of force was justified. For “the essence of the Graham . . . analysis is that the force which was applied must be balanced against the need for that force: it is the need for force which is at the heart of the Graham factors. . . . [W]here there is no need for force, any force used is constitutionally unreasonable.” Headwaters I, 240 F.3d at 1199 (internal quotations omitted). And, just as the Eighth Circuit held in Brown that a reasonable jury could find that a single application of a Taser in drive-stun mode to the arm of an individual suspected of committing a “minor, nonviolent crime[ ]” and who posed no “realistic threat to [the officer‘s] safety” constituted excessive force, 574 F.3d at 498, so there is no question whatever that a reasonable jury could find that the repeated use of a Taser on a woman driving her son to school whose only crime was refusing to sign a notice of infraction was objectively unreasonable.
D. Qualified Immunity
Because I think it obvious that the Officers violated Brooks‘s constitutional right to be free from unreasonable seizure by using (grossly) excessive force on her, I reach the second step of the qualified immunity inquiry: whether the right violated was clearly established in a “particularized . . . sense.” Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled on other grounds by Pearson v. Callahan, 129 S. Ct. 808 (2009). The question is whether the Officers’ “use of force was premised on a reasonable belief that such force was lawful, or . . . ‘whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confront-
Contrary to the majority‘s suggestion, the relative scarcity of federal cases resolving excessive force claims arising from the use of Tasers does not preclude a denial of qualified immunity. “[N]otwithstanding the absence of direct precedent, the law may be, as it was here, clearly established. Otherwise, officers would escape responsibility for the most egregious forms of conduct simply because there was no case on all fours prohibiting that particular manifestation of unconstitutional conduct.” Deorle, 272 F.3d at 1285-86 (internal citation omitted). When there is no case law directly on point, the question we must ask is “whether the state of the law at the time of the alleged wrong gave the defendants fair warning that their alleged treatment of the plaintiff was unconstitutional.” Davis, 478 F.3d at 1056 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)) (internal quotations and brackets omitted).
Here, there is “no question that any reasonable officer would have known that the force used was excessive, from an elementary understanding of the obligations of law enforcement officers toward all individuals in the community they serve as well as from a review of the well-established law.” Davis, 478 F.3d at 1056-57. This is not a close case. Any reasonable officer should have known that using a Taser repeatedly on a pregnant woman who had committed a trivial, nonviolent crime and who posed no realistic threat to the safety of others was unlawful. Even if the Officers did irrationally perceive some threat at the time (rather than developing a post-hoc explanation for their behavior), that would not suffice; a reasonable officer would not have seen any danger in the objective circumstances. And “a number of our cases . . . inform law enforcement officers of their obligation under the Constitution to refrain from the use of excessive force.” Id. Just as Brown, 574 F.3d at 499, held that “[a]t the time [the officer] deployed his Taser and arrested [the plaintiff], the law
For these reasons, the Officers are not entitled to summary judgment on Brooks‘s
IV. State Qualified Immunity
Nor are the Officers entitled to qualified immunity from Brooks‘s state law claims. Under Washington law, qualified immunity is not available “for claims of assault and battery arising out of the use of excessive force to effectuate an arrest.” Staats v. Brown, 991 P.2d 615, 627-28 (Wash. 2000). Even if there were no excessive force, however, I would still disagree with the majority‘s grant of state qualified immunity, because the Officers effected a custodial arrest in contravention of Washington law.
Applying these rules in Staats, the Washington Supreme Court denied state qualified immunity to a state fish and wildlife officer whose actions were similar to those of the Officers in this case. Id. at 626-28. The plaintiff in Staats refused to provide the defendant wildlife patrol officer with identification. After the “quite heated discussion” that followed Staats‘s refusal, the officer arrested him for “refusing to cooperate to receive a citation, contrary to former
After reviewing the text of
In this case, as I have explained, the relevant statutes did not permit the Officers to take Brooks into custody for refusing to sign the notice of infraction. Thus, the Officers “consummated the arrest contrary to existing . . . statute.” Id. That statutory violation also made the Officers’ conduct unreasonable. See id. Under Washington law, the Officers are not entitled to summary judgment on Brooks‘s state law claims.
V. Conclusion
For these reasons, I would affirm the district court‘s order denying summary judgment to the Officers. I respectfully dissent.