Bryan v. MacPherson

for this support her sole Parth derives BRYAN, Plaintiff-Appellee, Carl 778.316, § which from C.F.R.

argument hour- setting from one employers prohibits hours of work and a the first 40 ly rate for MacPHERSON; Coronado Police Brian statutory overtime hourly rate for lower Coronado, Department; a mu regu- § 29 C.F.R. 778.316. hours. See corporation, Defendants-Ap nicipal not, however, to the cir- speak lation does pellants. case. present cumstances rate prohibit § does not 778.316 C.F.R. No. 08-55622. long as the rate reduction reductions so Appeals, United States Court hours, days, and to all applies generally, Ninth Circuit. employee, without weeks worked overtime is of whether consideration Argued and Submitted Oct. 2009. worked. Filed Nov. IV. CONCLUSION court, conclude, as did the district

We any failed to adduce evidence or

that Parth

authority support her claim pay plan violates FLSA.

PVHMC’s justified conclude PVHMC

We employees’ requests for

responding to its by adopting schedule

an alternative work sought-after paying schedule and they received wages the same

employees There

under the less-desirable schedule. suggest that PVHMC is

is no evidence paying employees to avoid its

attempting nor can we find au- wages,

overtime prohibits pay-

thority PVHMC hourly rates when

ing employees different assigned different shifts.

they are

AFFIRMED.

Wardlaw, Judge, opinion filed con- Circuit curring rehearing, in denial of which Reinhardt, Fletcher, Pregerson, and W.

JJ., joined.

Tallman, Judge, from de- Circuit dissented rehearing

nial en banc and filed Smith, N.R.

opinion in which Callahan and

JJ., joined. Boehmer, Stotland, E.

Steven David Love, McDougal, Carrie L. Mitchell of Eckis, Smith, Boehmer El Foley, Cajon, & CA, appellant. for the Iredale, Eugene G. Julia Yoo of Law Iredale, Eugene Offices of Diego, G. San CA, appellee. for the PREGERSON, Before: HARRY STEPHEN REINHARDT and KIM WARDLAW, McLANE Judges. Circuit Order; by Judge Concurrence to Order WARDLAW; by Judge Dissent to Order TALLMAN; Opinion by Judge WARDLAW. justified governmental

that must be interest involved.” We none- Id. at 622. concluded theless that Officer MacPherson qualified immunity was entitled suit, § U.S.C. because principle clearly was not established when Officer MacPherson de- gun dart ployed Bryan. See id. majority A judges the active banc, voted rehearing our court en I concur. opinion factu- accurately recites the repeat al record and need not it here. Although panel’s id. at 618-19. See original opinion affirmed distriсt qualified immunity, court’s denial Offi- League cer MacPherson and curiae amici WARDLAW, of California Cities joined by and California State Judge, Circuit REINHARDT, PREGERSON, suggested Association Counties we re- Judges FLETCHER, given that consider two other taser cases concurring W. arising from rehearing en incidents that occurred about banc: denial Bryan’s tasing the same time as were panel paid careful “require[d] so, and, in our pending circuit. didWe facts attention to the and circumstances we did not although holding alter our case, including severity of the [this] MacPherson Officer used excessive force issue, suspect crime at whether that, Bryan, on based on concluded safety immediate an threat to the pose[d] opin- [in “recent statements other circuit others, of the officers or and whether he tasers, regarding the and the ions] use actively attempt- or resisting arrest [was] prior dearth of authority,” “reasonable ing by flight,” to evade arrest Graham position officer in Officer MacPherson’s Connor, 490 U.S. could have made a mistake of reasonable (1989). L.Ed.2d 443 concluded We regarding constitutionality law of the Brian that Officer MacPherson used ex- in the taser use circumstances Officer when, 24, 2005, July cessive force July MacPherson confronted in 2005.” Id. ap- X26 deployed his taser dart mode to panel at 629. After the its amended filed infrac- prehend Carl for a seatbelt opinion, only Bryan petitioned panel for tion, obviously where and no- rehearing rehearing en banc. Officer unarmed, ticeably threatening made no opposed Bryan’s petition, MacPherson ar- gestures, statements or did not resist ar- that the guing panel correctly applied had flee, attempt standing rest or but was qualified immunity. the law of In other twenty twenty-five away inert feet words, our current is a denial of decision MacPherson, the officer. See not Officer MacPherson’s— —and Cir.2010). At the 608 F.3d rehearing petition for en banc. holding heart of our was the conclusion devices, record, the X26 taser mischaracterizing and similar After mis- mode, in dart stating holding, attacking when used constitute our our “intermediate, significant in fact opinion language level of for it does not contain, Judge ultimately Tallman bases I. his dissent to our decision rehear- Our conclusion that use of the X26 taser ing upon en banc largely unsupported and similar devices dart mode consti- and nonsensical belief that use of a device “intermediate, significant tutes level designed up to fire a dart to one-half inch justified force that must by govern- into bare skin deliver a 1200 volt involved,” mental Bryan, interest charge somehow does not constitute an falls well within the national main-

intermediate use of force. He cites no stream of the decisions which have exam- by intra-circuit conflict created our deci- ined quality the nature and of the intrusion sion, but instead asserts that we erred posed by tasers. recently, Most the Tenth quoting binding circuit precedent. He (Judges Kelly, Brorby, Circuit and Gor- cites no inter-circuit conflict created our such) concluded that gun the use of a taser decision, but joining instead faults us for like the “against one issue here a non- growing judicial national consensus violent appeared misdemeanant who tasers dart mode constitute an pose no threat given and who was no intermediate level of force. striking- More warning” was unconstitutional excessive ly, he fails public to tell the that our court Graham, force under for which the officer simultaneously has chosen to rehear the enjoy qualified did not immunity. two other taser cases en Cava- banc—not be- naugh cause v. Woods opinions disagreed City, those Cross with the (10th Cir.2010). intermediate-level-of-force 663-65 Citing conclusion in our deci- Bryan, they did sion in Judge Kelly not—but instead to wrote reconsider how best to balance “the nature Although may Tasers not constitute quality and of the intrusion on the individ- force, deadly unquestionably their use ual’s Fourth Amendment interests” “seizes” the abrupt victim in an against “the countervailing governmental violent manner. Accordingly, the “na- Graham, interests at required by stake” as ture quality” of the intrusion into 396, 490 at U.S. 109 S.Ct. 1865. See the interests of Ms. Cavanaugh protect- Seattle, City Brooks v. 599 F.3d 1018 by ed the Fourth quite Amendment was (9th Cir.2010), rehr’g en granted by banc severe. (9th Cir.2010); 623 F.3d 911 Mattos v. (9th Agarano, Cir.2010), 590 F.3d 1082 at *3. This upon follows numerous deci rehr’g en granted by banc agreeing 1132 sions that the use of tasers at (9th Cir.2010).1 intermediate, nonlethal, least an if level of Brooks, Judges 1. In Hall and O'Scannlain than a non-serious or trivial use of force but properly distinguished employed tasers in deadly less than force” and stated "we have opposed stun mode as Citing to dart mode. difficulty concluding no that the Taser stun panel majority observed that a was a serious intrusion into the core of the taser in "dart” mode is an intermediate level protected by interests the Fourth Amendment: force, ” "[ojther recognized circuit right persons.’ to be ‘secure in [our] and district court decisions have also found Const, Mattos, (quoting 590 F.3d at 1087 U.S. application the Taser dart to be an intermedi- IV). amend. In panel neither decision did the Brooks, ate amount of force.” 599 F.3d at excessivе, find the use of force to be based Mattos, 1027 n. 13. three-judge panel upon unique consideration of the facts to each (Chief Kozinski, Judge Judge Bybee, and case, by and the issue to be determined the en Callahan), Judge addressing the nature and panel banc is whether that assessment was quality resulting of the intrusion from use of a appeals correct. These have been consolidat- mode, taser in dart noted are left "[w]e 14, rehearing ed for on December Taser, evidence that the general, in is more

811 2007) (“In (D.Me. 18, Fiorino, 1468658, May *22 See, v. 586 e.g., Oliver force. Cir.2009) circumstances, (11th fairly can the Taser (recognizing the 903 signifi cause it has been one “designed characterized —as that the taser contractions”); cant, significantly muscle violent level of uncontrollable court—as Collinsville, force.”); 447-48 Rephann, v. DeSalvo v. Orem Cir.2008) (S.D.Ill. contention (rejecting Oct.7, *4 WL or de a minor 2005). that a taser constitutes Indeed, Tallman fails to cite Judge Reeder, force); Hickey v. level of minimus in circuit or district court single case (8th Cir.1993) (“We find suggesting otherwise. mini appeal, attempt, defendants’ national consensus de- growing being gun shot with a stun pain mize in X26 when used dart vices such as the defen completely baseless. The ... to be an intermediate level of mode constitute testimony reveals that a stun own dants’ clearly reflected in national force is also blow, frightening painful gun inflicts study including the one studies— large temporarily paralyzes which Judge Tallman cites his dissent —and victim body, rendering the muscles of the professionals. of law enforcement the views Cross Cavanaugh Woods helpless.”); See, al, Safety P. Bozeman et e.g., William (D.Utah 4981591, at *5 City, 2009 WL Injury Conducted Electrical Profile of (“The 2009) Deс.14, factors Graham Weapons by Law Used Enforcement Offi- significant cautioned clearly case Suspects, Annals of Against cers Criminal force, of a deployment as the use of such (“Con- Medicine, 2009, at Emerg. April taser.”); Kirkpatrick, Crowell weapons electrical are one of sever- ducted (D.Vt.2009) (recogniz F.Supp.2d options al intermediate force available have “been described ing that tasers violent officers faced with or combative ‘moderate, non-lethal courts as other (“Prevention sig- suspects.”); id. at 485 ” severe— and cause “acute —even force’ injuries nificant or fatal is desirable and Airports v. Metro. pain”); Orsak physical consideration discussion of important Comm’n, 957-59 F.Supp.2d safety options, of intermediate force (D.Minn.2009); Muk Cyrus v. Town of weapons.”). conducted electrical including 1110413, at *21 wonago, 2009 WL organizations agree research also Police 2009) (“The (E.D.Wis. Court will April tasers are at least intermediate use of a taser as an intermediate view the Police Research level of force. Canadian medium, insignificant, quan though not or Centre, Energy Conducted De- Review of force____”); City v. Kaady tum 2005) (“[Controlled Elec- 25(Aug. vices (D.Or. 5111101, at *16 Sandy, 2008 WL are considered intermediate Devices] tric (“I 2008) Nov.26, therefore conclude American, North law en- weapons in the constitutes an intermediate use of a Taser vernacular.”), forcement, use of significant intrusion on of force and level http://www.css.drdc-rddc.ge.ca/eprc/tr/tr- rights.”); a victim’s Fourth Amendment al., Merrick Bobb et. 2006-01.pdf; see also Pon, 4420936, *2at v. 2007 WL McDonald Center, Resource A Police Assessment (“Taser 2007) (W.D.Wash. Dec.14, use is Library: The Events Night Bad at Powell control tac an intermediate considered (“[T]he If, at 75 shock November tic.”); City Way, v. Federal Beaver significant a Taser constitutes (W.D.Wash.2007) 1137, 1144 F.Supp.2d ”). use of force.... painful (“[T]he that the use of a first finds Court report on the use of force.”); Tellingly, in a 2005 Par significant Taser constituted enforcement Portland, in seven selected law 2007 WL tasers South ker v. agencies, armed, the United States Government standing, and was without advanc- (GAO) Accountability Office found six direction, ing vehicle, next to his agencies permitted of the seven taser use while Officer MacPherson was standing only when situations had reached the third “approximately twenty away feet observ- (“Volatile”) (“Harmful”) and fourth levels ing Bryan’s stationary, bizarre tantrum (Federal of the five-level FLETC Law En- with his charged.” X26 ‍​‌​​‌‌​​​‌‌‌‌​‌‌‌​​‌‌‌​‌​​‌​​​‌‌‌​‌​​‌‌​‌‌​‌‌‌‌‌‍drawn and Id. at Center) Training forcement Use-of-Force Judge quibbles Tallman with the Continuum, permit which the use of “Com- facts on which we relied and claims that pliance techniques” and “Defensive tactics” incorrectly we viewed those facts from GAO., respectively. Weapons: Taser Use Bryan’s perspective example the sole —but Selected, Tasers Law Enforcement judicial offers of our supposed astigma- Agencies, 2005), at (May http://www. 7-10 tism, our acceptance of the district court’s gao.gov/new.items/d05464.pdf. In other factual determination that “there was no words, agencies these six classified tasers clear indication” that heard or un- (Once as intermediate levels of force. derstood, “categorically unreviewable on (“Lethal”) situation has reached the fifth interlocutory appeal.” Eng Cooley, level, permitted deadly officers are to use Cir.2009); see also 8.) force in response. Id. at McPherson, 2008 WL (S.D.Cal. 2008) (“While Apr.3, *3 Plaintiff II. was apparently ignoring McPherson’s in- Because Officer MacPherson raised structions, there was no clear indication he interlocutory appeal to the district court’s heard understood instruc- denial of summary judgment on the basis ”). tions .... of qualified immunity, we were bound procedural posture to view the facts in light most non-moving favorable to the III. (here party Bryan), and then to ask holding We based our that use of an X26 “whether the officers’ ‘objec- actions are taser or similar not, device in dart mode— tively reasonable’ in of the facts and Judge as Tallman misleadingly suggests, circumstances confronting them.” the use of “all tasers” —constitutes an in- Graham, 608 F.3d at (quoting 490 U.S. termediate use of force on uncontested and 1865). so, In doing descriptions uncontroversial in the record “cognizant remained Supreme and in case law describing how tasers are Court’s command to evaluate an officer’s designed operate, to rather than solely on actions perspective ‘from the of a reason- injury the that himself suffered scene, able officer on the rather than with ” when pavement he fell to the and smashed the hindsight.’ vision of Id. at 627- 20/20 See, his face and teeth. e.g., Bryan, 608 Graham, 28(quoting 396, 490 U.S. at 109 F.3d at 620 (citing Lewis v. 1865). Downey, 581 that, S.Ct. We concluded even 467, (7th F.3d Cir.2009); 475 Draper viewing v. the facts from Officer MacPher- Reynolds, 1270, (11th 369 F.3d 1273 n. 3 perspective, son’s the “intermediate level Cir.2004); Reeder, Hickey of v. 12 employed by force Officer MacPherson (8th Cir.1993)). Indeed, 757 against Bryan was excessive” in one of the light of facts that sources of our complied had information on how the X26 Officer MacPherson’s taser pull instructions to functions was the manufacturer it- over based on a infraction, Int’l, minor seatbelt self. See Taser Faqs, http:// General flee, attempted never clearly un- www.taser.com/research/Pages/

813 not the least intrusive might Taser International use means FAQGeneraLaspx. justified. use a level of force that cannot be explains that its Judge only Tallman’s concern with the ni- compressed utilize TASER devices applied we our cite to our standard is nine- up probes small trogen project two Rutherford, in v. year-old decision Deorle speed ... at a of over ranges various Cir.2001). (9th 272 F.3d 1272 Deorle in are per probes second. These 160 feet law, good part fact remains in because the to the TASER device insu- connected Supreme Court denied certiorari.2 We cit- signal An electrical lated wires. Deorle, along opinions, ed with other for through the wires to where transmitted principle that the use of force obvious body probes make contact with justified by by law enforcement must be in an clothing, resulting immediate appropriate government Judge interest. con- person’s of the neuromuscular loss specifically objects Tallman to the fact that ability perform coordinat- and the trol now-withdrawn versions of our impulse. of the action for the duration ed opinion quoted language from Deorle and IV. Drummond with which he disagrees, but opinion longer upon the amended no relies concluding that Officer MacPherson objects. language to which he It is used excessive when tased least, puzzling, say Judge that Tail- recognized and explicitly applied both against Bryan man to rail continues principle the “settled officers something not opinion say. does the ‘leаst intrusive’ de- employ need force,” at 627 gree Bryan, 608 F.3d n. of V. Maui, (citing County v. 523 Gregory Cir.2008)), and the There an obvious and critical distinc- (as concluding study “the tion equally presence clear rule that between did one dissent) alternatives is a to include cited tasers cause feasible factor (rather also, “fatal”) 627; analysis.” than e.g., Id. at see “mild” “serious” or our Hemet, injuries on one suggesting v. hand Smith (9th Cir.2005) (en banc); injuries cause no on the Headwaters For- that tasers other. Humboldt, See, al., supra, at County e.g., est Bozeman et tbl.5 Def. (9th Cir.2000), injuries (finding characterized as vacated re- time). roughly grounds quarter sub nom. Coun- “mild” occur manded other injuries ty Def, Forest “mild” described Humboldt Headwaters Most study puncture “were superficial 151 L.Ed.2d U.S. S.Ct. (2001). darts, no conflict the wounds” from the taser fact We see between through wounds skin puncture that an need not use the least are rule officer suspect “superficial” as rather than as apprehending means classified intrusive “life-threatening” that there are “serious” or does not concept and the nonetheless insignificant. who mean that such wounds are circumstances which officer does filed, rehearing upon a judge of decision that relied 2. At the time Deorle was our sought rehearing but failed to secure en language, court Drummond rel. Drum- Deorle’s ex Deorle, Anaheim, See 272 F.3d at 1274-75. The banc. 1052 mond Supreme States Court then denied United Cir.2003), Supreme again Court de- Deputy Greg County Sheriff Ruther- Butte City Anaheim v. Drum- nied certiorari. petition for certiorari. ford’s 918, Drummond, Rutherford ex rel. 542 U.S. mond Deorle, 536 U.S. (2004). L.Ed.2d 775 S.Ct. (2002). again L.Ed.2d Our court voted fact, In “superficial” inju- such dart VI. barbed potential signifi- ries have the to be quite Judge Tallman claims that we have mis- See, GAO, 6-7(“If e.g., supra cant. faсts, characterized the Judge it is skin, penetrate impossible barbs it is to Tallman who has mischaracterized the evi- predict they deeply how will embed.... dence in the an record in to mini- attempt The manufacturer estimated that quantum mize the represented by of force generally penetrate barbs will skin bare no use of an X26 or taser similar device in inch.”); more than half an National Insti- example, dart For Judge mode. Tallman Justice, Study tute of Following Deaths says “during training, all nearly Coro- Disruption: Electro Muscular Interim nado Department Police officers are tased Report, at http://www.ncjrs.gov/pdffiles fact, themselves.” demon- record (June 2008) (“[Djarts l/nij/222981.pdf may clearly strates require- “[fit’s not a cause puncture wounds or burns. Punc- ment” for Coronado officers be tased eye by ture wounds to an a barbed dart being before though certified —even could to a lead loss in vision in the affected majority department vast in reported- eye. injuries Head or resulting fractures ly voluntarily were, albeit highly- under incapacitation from falls due to muscle controlled circumstances. occur.”). may case, In this Bryan required emergency surgery to have dart re- point The is irrelevant in event. Moreover, moved. the sudden electrical only The record shows po- Coronado charge that immobilizes an individual can lice officers could volunteer by to be tased significant injury, cause if especially deployed taser in drive stun mode while individual, Bryan, tasered like lands on a they being upright were held two other hard injuries may surface.3 These even because, officers. This is in the words of fatal, prove as Taser International’s own the Coronado Dеpartment trainer, Police training materials warn: “The TASER “we don’t want them to fall down and hurt energy conducted weapons cause tempo- training themselves session.” This rary incapacitation and inability opportunity to to stungunning submit obvi- catch yourself you incapaci- as fall. This ously nothing question has to do resulting tation and the danger- fall can be whether X26 taser dart mode ous and even specific under circum- fatal constitutes intermediate level force. stances. For hit example, someone the Moreover, absolutely there is no evidence high X26 in a place could seriously in the record that Officer MacPherson injured fall....” v. MacPher- himself was ever tased stun dart son, (S.D.Cal. No. 06-CV-01487 Mar. and, mode; were, if there it would demon- 2008) (Dkt 3) 83^4, added). (emphasis strate that he was well aware of the sub- injuries, Such perhaps while “mild” in an stantial level of used on as abstract, sense, relative clearly are he would have been familiar with the loss (and insubstantial. Use of a device which can inability control standing remain injuries cause such in the mine run of rather than ground) crash to the accompa- surely cases rises of signifi- level nying an electrical current running- cant, intermediate force. through body. steps. similar use of the taser Cavanaugh, on Ms. Cava- 662. "As a naugh, fall, “whose feet were on steps the front Cavanaugh result of this Ms. suffered a home,” go rigid, her her spin caused injury.” (emphasis traumatic hrain add- around, ed). and strike her head on the concrete have also misrepresents personnel, and law enforcement similarly

Judge Tallman and po- recognized: the the X26 taser similar de- regarding in the record evidence mode, vices, injury for the X26 or similar de- whеn used in dart constitute tential to represents “intermediate, mode used in dart significant vices an level of example, For harpooned and tased. justified governmental those that the must be Certifi- to Taser’s own Instructor he cites at Bryan, interest involved.” 2004, which Plan from Lesson cation that unsupported assertion makes the denial of re- I concur with respectfully injury a rate for the watt is “0% there hearing en banc. TASER,” principle for

ADVANCED entirely are safe and these that devices TALLMAN, Judge, Circuit with whom however, Notably, this same innocuous. Judges and N.R. SMITH CALLAHAN warning ta- with a that begins document join, dissenting from the denial weapons treated as serious sers “should be rehearing en banc: in situations only deployed and should to use would be oth- alternative where to officers are allowed act rea- Police carry which similar or er force measures Yet, in Bryan v. sonable self-defense. important- risk.” More degrees of higher MacPherson, we unconstitutional the deem warning includes an observation this ly, just a officer who did that. actions of “injury” exactly what constitutes about Brian Coronado Police Officer MacPherson the useful- upon casts doubt serious alone he standing was street when injury figure: rate” of the “0% ness by mostly man was confronted naked evidence,” the docu- “extensive medical rage being who with irrational to reacted reads, the TA- “strongly supports ment stop simple car for a seat- directed to his TASER M26 X26 ADVANCED SER He “fuck” over and belt violation. shouted lasting cause aftereffects M18 will not over, steering his repeatedly punched words, in a fatality....” In other or wheel, commands to ignored officer’s 1000 volunteers were study which car, gibberish, pum- remain in his shouted by tasers drive-stun tased —whether thighs, and did not retreat meled his own or in mode is not clear—none mode dart yelled at him back get when the officer injured. Fair permanently killed or in his car. it surely possible is enough—but poten- recognize Rather than serious injury, even weapon cause or serious safety posed tial threat lone officer’s causing perma- injury, without death bizarrely, acting panel someone injury. nent officer was unreason- determines VII. in any danger. able to think Further, sweeping panel’s language explicitly “recognize[d] impor- We use of taser —an deems the officer’s electric devices like the tant role controlled ensuring compliance means of effective play Taser X26 can law enforcement” likely injury cause to offi- that is less officers, bystanders, “help protect police cers, suspects, bystanders innocent suspects alike.” officer’s nearly than other tool however, recognition, which 622. This disposal force as matter Tallman, entirely by Judge con- shared —excessive decision endan- panel’s law. Because eminently prin- with the reasonable sistent alike, I dissent gers officers citizens majority judges on of active ciple en banc. court, rehearing many judges other denial along with our I “fuck, fuck, fuck.” continuing to While shout, pound steering Bryan the wheel and Sunday Officer MacPherson’s California pulled his car in stopped ahead the City to a was off bad start. The of Coro- blocking intersection crosswalk several was police assigned nado officer the te- feet from the curb. enforcing dious task seatbelt violations early Sunday morning July on in 2005. Bryan Although compliant was with the task, carry To оut his Officer MacPherson Coronado officer’s instructions to this patrol stood outside his car in full uniform point, Officer MacPherson was concerned stop near a sign the intersection of about the odd seeing: behavior was the Pomona Avenue and Glorietta Boulevard acting irrational, violent, driver was in an to look for violators. angry, aggressive manner. Because Officer watching While MacPherson was the Bryan might officer considered be traffic, Toyota a tan Camry driven Carl high on or drug, might PCP another Bryan time, approached. At Bryan the unstable, mentally backup. he radioed for undershorts, wearing only was boxer ten- Help did not arrive in time. shoes, nis and socks. sixteen- Bryan’s next nothing actions did to dis- year-old brother Alexander was seated in pel Bryan Officer MacPherson’s concerns. passenger the seat. Officer MacPherson began open the driver’s side door. Offi- noticed that the wearing driver was not MacPherson, cer who was fifteen twenty seatbelt, put so he out his to signal hand away, began yelling him, feet “Stay the car to stop. Bryan stopped at the stop car, stay car, car,” the stay the in the sign in the lane of traffic. Officer Mac- and removed his X26 taser from its hol- approached Pherson passenger the window Although ster. a jogger forty away feet to speak car, with him. Looking into the and the tennis player heard the officer Officer MacPherson noticed driver yelling him stay car, Bryan wearing a shirt. The radio was to open continued door get out. up. Bryan turned sat the driver’s seat Officer MacPherson ordering continued staring straight ahead with both hands Bryan car, to get Bryan back in the clutching the steering wheel. When the did nоt do so.1 officer asked to turn the radio

down, he turned it off. car, Officer MacPher- Once yell- out started son then asked to pull him ing gibberish the car over to and pounding his with thighs In response, curb. Bryan began both fists. He was open between the door punching steering car, wheel both fists and the still within arm’s reach and started “fuck” shouting over and passenger compartment. over. Fearing for his loudly He yelling enough safety, that a man Officer MacPherson deployed his playing taser, tennis fifty at a club seventy- hitting Bryan single with a dart in away five feet could hear him screaming the left arm. fell to ground, Summers, conducting Officers stop traffic can Michigan order situation.” v. 702-03, occupants get 2587, Maryland out of the car. U.S. 101 S.Ct. 69 L.Ed.2d Wilson, 408, 414-15, (1981). 519 U.S. S.Ct. It follows that can officers re- (1997); quire L.Ed.2d 41 occupants Ruvalcaba v. to remain in the car as Angeles, well; indeed,, Los depending 1326-27 Cir. circum- 1995). authority stances, This may stems from the conclu- it well be safer for them to do See, Mimms, sion that e.g., "[t]he risk of harm to both the Pennsylvania so. occupants and the is minimized if officers U.S. 119 & n. routinely unquestioned J., (1977) (Stevens, exercise dissenting). command of L.Ed.2d 331 an aggres- cer’s of a to control and bruis- use taser cutting teeth and breaking four noncompliant subject violated the sive and his ing face. subject’s rights Fourth Amendment II established, clearly not thus holds that and qualified is entitled to Officer MacPherson force to of excessive An use officer’s immunity. Having that conclu- reached person’s a violation of a arrest is effect an sion, have panel’s should been the work free right to be from Amendment Fourth Instead, on to panel goes done. the exam- and Gra- searches seizures. unreasonable ine of the taser constitutes whether use Connоr, 395, 386, 490 U.S. ham v. excessive force. con- unconstitutional (1989). 1865, A 104 L.Ed.2d 443 S.Ct. does, Bryan panel that it the mis- cluding that a law enforcement offi- citizen’s claim facts, law, on bad charaeterizes the relies analyzed force is under cer used excessive facts use- and uses contested to set future standard. “objective reasonableness” law offi- policy of-force for all enforcement 399, Determin- at 109 S.Ct. 1865. Id. cers in the Ninth Circuit. used is reasonable ing the force whether nature and requires balancing “the A individual’s the intrusion the

quality of Amendment interests Fourth is The first error in its panel’s at countervailing ‍​‌​​‌‌​​​‌‌‌‌​‌‌‌​​‌‌‌​‌​​‌​​​‌‌‌​‌​​‌‌​‌‌​‌‌‌‌‌‍governmental interests rendition of the facts. As motion (internal at 109 S.Ct. 1865 stake.” Id. summary judgment, for a court consider- omitted). marks citations quotation immunity ing must qualified an officer’s Further, of reasonableness the “standard facts in the most take the favorable Id. The reason- applies.” at moment Saucier, nonmoving party. 533 U.S. judged the use of from ableness of In assessing S.Ct. of a reasonable officer on perspective qualified an officer is entitled to whether perspective the scene—not from however, immunity, the court must view reviewing a court person seized objective perspective facts from the those hindsight. with situation 20/20 on the scene. reasonable officer Gra- ham, 396, 109 The 490 U.S. at S.Ct. 1865. law officer uses

Even if a enforcement from this panel fails view facts force in violation of a citizen’s excessive instead, all it of the perspective; relates rights, officer will Fourth Amendment Bryan’s from This is perspective. facts immunity qualified un- be entitled to still error. law provides that clearly less established violates Fourth Amend- conduct instance, explains that panel For personal from ment. An officer is shielded Bryan didn’t hear the officer’s commands liability reasonably when he believes get car stay in or back into the in the situation is lawful. Saucier conduct steering yelled hit his wheel 194, 201-02, Katz, 121 S.Ct. 533 U.S. mad himself obscenities because was (2001), L.Ed.2d 272 receded by police twice in the being stopped for Callahan, by Pearson v. grounds on other may be morning. true— same While 817-21, 555 U.S. summary judgment we purposes (2009) (holding “rigid that the L.Ed.2d 565 the point. assume it is—it beside inquiry mandated Sau- order of battle” Bryan’s didn’t know Officer MacPherson longer required). cier is no MacPherson motivations. All Officer comply not correctly was that did opinion de- knew panel’s revised truly exhibiting lawful commands that the law on whether offi-

termines behavior. It is pect poses bizarre what Officer Mac- an immediate threat to the knew, innocent, post- safety others, Pherson of the officers or and wheth- filing explanation the by panel, favored er actively resisting he is or arrest at- assessing that must be considered ob- tempting by flight,” to evade arrest among jective reasonableness. Graham, other factors. U.S. right S.Ct. 1865. The to make an ar- panel relays

Because the facts the rest right employ carries with it the Bryan’s perspective, rather than the offi- some of A level force to effect it. court Id. cer’s, easy it was no doubt to conclude that may must the consider officer did pose not threat to the offi- dynamic a reacting evolving situa- cer. Looked at a from reasonable officer’s tion, requiring split- the officer to make perspective, however—as Graham re- 396-97, second decisions. quires Bryan’s volatile, behavior was ir- — rational, 1865. Accordingly, an need alarming. officer not Any reasonable perfect have judgment, nor officer would be concerned must resort safety. for his only to least of necessary the amount force B to accomplish legitimate law enforcement objectives. Bryan panel by The also applying errs wrong the for measuring standard the ap- Rather, a range may of force be reason- propriateness of the force used. In its See, able under the e.g., circumstances. opinions, first it two determined that all Graham, 490 U.S. at 109 S.Ct. 1865 use of tasers “constitute[s] intermedi- (“Not every push shove, it may even if ate, significant level force that must be unnecessary later seem peace the of a justified by strong government a interest chambers, judge’s violates the Fourth compels the employment [that] such (quotation Amendment.” and cita- marks Bryan MacPherson, force.” 608 F.3d omitted)); tion see City also Forrester v. (9th Cir.2010) 614, 622 (quoting Drum- (9th San Diego, 807-08 Cir. mond ex rel. Drummond v. Ana- 1994) (“Police officers, however, are not heim, (9th Cir.2003), 343 F.3d required degree to use the least intrusive Rutherford, and Deorle v. possible. force inquiry Rather ... (first Cir.2001)) alteration added is whether the force that was used to omitted); quotation and internal marks see effect particular reasonable, a seizure was McPherson, also viewing perspective the facts from the of a (9th Cir.2009).2 774-75 question But the reasonable officer on the scene. Whether not whether governmental interests officers hypothetically could have used less compel force; the employment of such it is painful, injurious, less or more effective the governmental whether per- interests force in executing simply an arrest is employment mit the of such force. (citatiоns omitted)). the issue.” The Su- In evaluating governmental interests preme Court reiterated this standard of at stake and the reasonableness of the Saucier, analysis 204-07,121 533 U.S. at force in light interests, used of those a S.Ct. 2151. reviewing court must totality examine the circumstances, of “including clear, consistent, the severi- Despite this and con- issue, ty of the crime at whether the trolling Supreme precedent, sus- a single Court previous opinions 2. The ing two in this case are en banc and dissent. The minor superseded being by opinion, panel's third filed opin- modification made in the third simultaneously denying order rehear- ion is discussed herein. interest by governmental in- court, by justified joined only a senior judge of our sitting desig- Maj. Op. panel’s at 826. The circuit volved.” judge of different path enough. in 2001. With- far nation, go a new amendment does not charted case, court in Deorle citing single single of a reference to out mere deletion degree it; go “[T]he rewrote standard: must Deorle does not overrule we en permis- enforcement] is Moreover, used panel’s [law re- to do so. banc governmental strong only when sible throughout citations Deorle peated of such compels employment interest it opinion suggest consid- rest justify To at 272 1280. force.” present preferable to a more ers Deorle conclusion, quotes Gra- panel Deorle the Supreme the the Court standard than one the Specifically, out context. ham Indeed, its by amending opin- has chosen. the wrote that Graham majority Deorle accurately the correct ion to more reflect by to a means which simply “are factors it, actually the applying without standard amount of forcе objectively 'the determine to fact it attempts disguise the that panel situa- necessary particular in a that is applied yet again. doing, Deorle In so has ” Graham, at 490 U.S. (quoting tion.’ of the judgment it has ensured that 1865). full 396-97, The sentence street, on the who is not afforded officer calcu- actually reads: “The from Graham time, always luxury nearly will be allow- embody must lus of reasonableness ponderous supplanted by judg- the more are officers police the fact ance for ment of this Court. judg- split-second make often forced to tense, that are circumstances ments —in C uncertain, evolving rapidly and —about in a necessary of force that is amount Bryan panel’s The third mistake is to Graham, situation.” U.S. particular to sweeping use a contested record make It is 396-97, 109 clear S.Ct. harms that findings about tasers standard, ap- a flexible envisions Graham they may assuming cause. facts While “reasonableness”; Deorle to propriate is most favorable to in the only to use requires police nonetheless summary judg- standard for appropriate necessary. That is the minimum force ment, appropriate platform it not the for Court has articulated Supreme the law the severely limiting the use tasers law applicable officers as the standard throughout the Ninth officers enforcement they time-pressured these as make Circuit. Saucier, 533 U.S. decisions. See difficult (“If rea- an officer S.Ct. A record demonstrates review sonably, mistakenly, believed generally are safe. rec- that tasers back, in- likely to fight suspect MacPherson’s ord—which included Officer stance, justified in the officer would be own testimony experience about his than in fаct was need- more force using tasers, testimony from the Coronado Po- ed.”). Department’s expert, materials lice taser manufacturer, and taser’s a re- from the recognition of fact apparent

In from the Association port International faulty, the has panel standard is Deorle Law Enforce- of Police National Chiefs sen- opinion single its again amended —a unequivocally estab- Policy ment opinion time delete of its tence Center — —this of a taser to an application lished that the in- language and state above-quoted medically unlikely safe and individual is “constitute intermedi- that tasers stead ate, injury. cause of force that must significant level instance, during training nearly

For all (quoting Dovmey, Lewis v. 475(7th Department Cir.2009)). Coronado Police are officers tased themselves. The same cannot be In the contemporane- concurrence filed said for of the compliance some other tech- ously with opinion the amended and order niques at law disposal, enforcement’s such banc, denying rehearing Judge en Ward- as bang” firearms “flash devices used argument law bolsters her misrepre- Further, disorient suspects. barricaded senting two of our cases scheduled to be the evidence in the record showed that en reheard banc: Mattos Agarano, human volunteer studies confirmed a zero (9th Cir.2010), reh’g en banc percent injury rate for the taser simi- granted by Oct.4, 625 F.3d 1132 Cir. larly injury low rates of in field studies. 2010), Seattle, Brooks fact, the record showed that rela- “the (9th Cir.2010), reh’g F.3d 1018 en banc injury tive rate to both officers sub- (9th Cir.2010).4 granted by 623 F.3d 911 jects very low” and “much than lower opinion Our analyze Brooks did not impact for techniques” blunt like batons Quite use of tasers in dart mode. to the flashlights. result, and steel As a most contrary, distinguished we the use of a police agencies rate taser involving the as in taser stun mode from the of a use taser equivalent or even less force than pepper in dart mode and stated using that a taser spray it in because results “fewer injuries in stun mode “was more on par pain to both suspects, officers and no afteref- compliance techniques, which this court fects, discomfort!,] period [a] shorter of has found a significant’ involve ‘less intru- target and it specific.”3 upon sion an personal individual’s security simply finding Rather than Officer Mac- than most claims of force.” 599 F.3d at qualified Pherson entitled to immunity, the 1027-28. Because the in officers Brooks panel proceeds highly on a contested factu- mode, used the quantum taser in stun the al record and finds all that tasers consti- of force used “less than the intermedi- tute significant a amount of It force. ate,” id. at and the discussion of reaches this injury conclusion based on the Bryan and other precedent circuit fell, alleged he suffered when he as necessary therefore not to the resolution circuits, well as limited cases from other case. the including the Seventh speculation Circuit’s Likewise, that need “one not have personally en- is a there fundamental differ- jolt dured a taser pain to know the that ence between our statement in Mattos that accompany Maj. must it.” Op. at 824 a using taser a “was serious intrusion into 3. More recent Injury research corroborates Conducted Weap- Electrical Profile of instance, studies cited in the record. For ons Used Against Law Enforcement Officеrs comprehensive study was conducted at Wake Suspects, Criminal Emergency Annals of Medicine, University Forest School ex- (2009). Medicine amined all uses of tasers criminal suspects six agencies in law enforcement Any meaning- reliance on these decisions months, 1,201 over 36 which involved uses. juncture at prior opin- less because the That study injuries concluded: "Mild or no longer binding ions are no now court 1,198 were observed after [taser] use in sub- voted has to rehear them en banc. It would (99.75%----). jects injuries, mild Of 83% predict be futile to the outcome of the en banc superficial puncture were [ta- wounds from Mattos, proceedings in Brooks and I do probes.... subjects ser] Two died in Rather, attempt my disagree- not to do so. custody; medical examiners did not [ta- find contributory panel's ser] use to causal ment stems from unneces- either Bozeman, William, ah, case.” Safety et sary findings. factual liability conduct risk avoid their protected by interests the core Amendment,” they reacting are uncertain and 590 F.3d at when Fourth circumstances, equates particu- rapidly unfolding taser use to an holding all Any mentally subjects larly involving force. use of unstable level of intermediate may a lone may qualify a serious intrusion on who well attack officer without as force warning. interests. But that Amendment Fourth mean that interme- ipso facto

does issuing Rather than blanket directives It is improp- used. level force was diate case, single facts of a which based we implied and inaccurate to state er in the favorable to were taken most are intermediate level of tasers must well-devel- plaintiff, we adhere to when, fact, merely stated that requires law that us oped Supreme Court pro- intrude Amendment tasers on Fourth analyze individually, looking each case make such factual tections. We did not totality at circumstances Mattos, because of the finding arguably perspective of a reasonable officer on conflicting undeveloped pre- record Graham, street. U.S. Id. appeal. panel to us on The sented Then, we must whether S.Ct. 1865. assess have been take a well-advised would jury could determine that the choice approach Bryan. similar officer made in the heat the moment fits that, within a actions. range if reasonable thing proved, It is one to hold 396-97, panel’s 109 S.Ct. 1865. support jury allegations could applies wrong repeatedly decision It is force. another finding excessive its standards to reach desired result —a entirely appellate court re- thing faith ef- endangers good result that qualified immuni- viewing invocation protect officers to forts law enforcement finding make its own factual ty to —based serve, themselves, community they and must be in on inferences that drawn solely subjects Accordingly, they encounter. injured and material party favor of the rehearing en I dissent from the denial of represent tasers the record —that outside banc. intermediate and substantial use beyond to then pale apply It is force. OPINION prescribe any to judicial fact-finding that anywhere WARDLAW, in the Judge: use a taser officer’s Circuit Ninth Circuit. Early morning in one the summer deployed Brian MacPherson Officer

Ill Bryan a traf- during his taser Carl Bryan stop tell fic for a seatbelt infraction. ill-equipped are to law en- Courts § filed under they respond must this action U.S.C. forcement officers how force in violation of the asserting excessive unpredictable faced with and evolv- when Fourth Officer MacPherson Fisher v. Amendment. ing tactical situations. See Jose, his for sum- appeals the denial of motion San (en Cir.2009) banc) qualified on immuni- mary judgment based telling that (explaining part in ty. We affirm the district court developing with a police confronted because, in the viewing the circumstances and involving an intoxicated situation Bryan, to Mac- favorable Officer armed “what tactics are most heavily tenant the taser was unconstitu- a Pherson’s use of “a reasonable role for permissible” not However, officer”). tionally we reverse excessive. offi- judicial Nor should Bryan’s in the violation of part because required put to life limb cers be rights clearly why stopped. constitutional was not estab- he had been know- lished at the time Officer MacPherson ing why becoming full well increasing- July at Bryan fired his taser himself, ly angry simply straight stared ahead. requested Officer MacPherson I. AND FACTUAL PROCEDURAL Bryan turn down pull his radio and BACKGROUND Bryan over to the curb. complied with Bryan’s Sunday Carl California was off requests, both but as pulled he his car to old, twenty-one year a bad start. The curb, angry with pros- himself over the having stayed night younger with his pects citation, of another hit his steer- Camarillo, brother and some cousins ing yelled wheel and expletives to himself. County, which planned is in Ventura his car Having pulled placed over and it in parents’ drive his back brother to his home park, Bryan stepped out of car. his Coronado, Diego which inis San Coun- dispute Bryan There is no was agi- However, ty. girlfriend cousin’s tated, car, standing yelling outside his gib- accidently Bryan’s keys had taken to Los hitting berish thighs, his only clad Angeles previous day. Wearing t- his boxer shorts and tennis shoes. It is shirt and in which boxеr shorts he had also undisputed Bryan did verbal- slept, Bryan early, rose east traveled ly and, threaten Officer MacPherson ac- picked his Los Angeles, up cousins to his MacPherson, cording to Officer was stand- keys get and returned to Camarillo to his ing twenty twenty-five away feet car began and brother. He then driving not attempting to flee. Officer MacPher- south parents’ towards his home. While son testified that he told traveling Bryan on the remain highway, Bryan car, while stopped by brother were testified that he California did Highway Patrolman not hear him who issued Officer MacPherson tell do speeding him upset ticket. This so. The material greatly. dispute one concerns He began crying and moping, ultimately whether made movement to- removing his t-shirt to wipe his face. Con- ward the officer. Officer MacPherson tes- tinuing incident, south without further the Bryan tified that took step” “one toward finally two crossed the Bridge Coronado him, Bryan says but he did not take seven-thirty about in morning. the step, physical and the evidence indicates that Bryan actually facing away was At that point, already bad morning Officer giving any MacPherson. Without for Bryan a turn took for the worse. warning, Officer shot Bryan MacPherson Bryan stopped was at an intersection when gun. with his taser the One of taser MacPherson, Officer who was stationed probes Bryan’s ‍​‌​​‌‌​​​‌‌‌‌​‌‌‌​​‌‌‌​‌​​‌​​​‌‌‌​‌​​‌‌​‌‌​‌‌‌‌‌‍embedded the side there to regulations, enforce seatbelt upper left arm. The electrical current im- stepped in front of signaled his car and Bryan whereupon mobilized him fell that he was face first proceed. not to Bryan ground, into the immediately fracturing realized that he had four teeth and mistak- enly suffering failed to buckle facial his seatbelt after contusions. morn- his earlier ing yet encounter with the ended police. Officer with arrest1 and another approached MacPherson passenger drive—this time ambulance and to a Bryan window and asked whether he hospital knew for treatment. Bryan violation, charged resisting

1. op- § was with Biyan was tried on this posing performance an officer in the following hung jury, of his the state dismissed the charges. duties in violation of California Penal Code

823 III. DISCUSSION Officer MacPherson sued its Department, Police Coronado In evaluating po denial of a chief, Coronado for exces- and the qualified officer’s immuni lice assertion 1988, § 42of force in violation U.S.C. sive questions. First, ty, we ask two distinct infliction battery, intentional assault whether, taking must determine distress, a violation of California emotional light facts in the most favorable to the 52.1, as well as failure § Code Civil non-moving party, the officer’s conduct vi On causes of action. train and related second, right; if olated constitutional court summary judgment, district occurred, whether was right a violation City of to the Coronado granted relief “clearly specific established Department, but deter- Police Coronado Ashcroft, context of case.” al-Kidd v. was not MacPherson mined Officer (9th Cir.2009) (citing 964 stage immunity at this qualified entitled Katz, 194, 201, v. 121 Saucier 533 U.S. concluded proceedings. court (2001)). 2151, 150 272 S.Ct. L.Ed.2d We jury find that could reasonable may “exercise sound discretion [our] danger no immediate Bryan “presented two deciding prongs which of the of the of force and no use MacPherson] [Officer qualified immunity analysis should be ad particular, it found necessary.” Callahan, first.” Pearson v. 555 dressed jury could find that a reasonable U.S. S.Ct. 172 L.Ed.2d was located between fifteen (2009). twenty-five feet from Officer MacPherson to- facing advancing him or and was not A. Did MacPherson Officer also that a him. The court found ward Employ Constitutionally known that officer would have reasonable Force? Excessive and, pain use of taser would cause standing that a asphalt, as Allegations of excessive force are injury. cause Under resulting fall could examined under the Fourth Amendment’s circumstances, the district court con- prohibition on unreasonable seizures. been to a rea- cluded it would have clear Connor, 386, 394, Graham U.S. shooting Bryan sonable officer (1989); S.Ct. L.Ed.2d Deorle the taser was unlawful. Rutherford,

Cir.2001). We ask “whether the officers’ ‘objectively are actions reasonable’ II. OF REVIEW STANDARD confronting facts of the and circumstances quali of The district court’s denial Graham, 397, at 109 them.” 490 U.S. “ is reviewed novo. Blan immunity fied de balance nature S.Ct. 1865. We must ‘the 1110, County, v. 406 F.3d Sacramento on quality of the intrusion the individ ford (9th Cir.2005). is disputed 1114 Where Fourth interests’ ual’s Amendment exist, the of fact we assume sues material countervailing governmental interests the by 396, of the material facts asserted (quot version 109 S.Ct. at stake.” 1865 Gamer, 1, 8, See v. Estate non-moving party. the KRL 471 105 ing Tennessee v. U.S. (9th Moore, 1184, 1694, (1985)); F.3d 1188-89 1 also 512 85 L.Ed.2d see S.Ct. of Cir.2008). Harris, 372, 383, must 127 U.S. All reasonable inferences v. 550 Scott (2007). 1769,167 non-moving party. the L.Ed.2d 686 Stated drawn in favor of S.Ct. Monte, 936, way, must “balance the amount El F.3d another v. 515 John of (9th Cir.2008). the for that applied against need of force 941 824 (7th Cir.2009) (“[0]ne Erath, 1057,

force.” v. F.3d per- Meredith 342 need have (9th Cir.2003). sonally jolt 1061 endured taser know the

pain it....”); accompany that must Hick- Quality 1. the Nature Intrusion ey, 12 F.3d at by vividly begin analyzing quantum We the experiencing testified to type paralysis force—the and amount force—that both pain throughout intense against Bryan.2 body Officer MacPherson used his when was tasered. addi- Deorle, 1279; tion, 272 See F.3d at Chew v. Officer MacPherson’s use of the X26 Gates, (9th Cir.1994). 1432, 27 physically F.3d 1440 injured Bryan. As a result of taser, Officer shot with a Ta- MacPherson lost muscular control and fell, uncontrolled, by ser X26 provided the Coronado Police face pave- first into the Department. compressed The X26 ment. uses This fall shattered four his front nitrogen propel pair “probes”— teeth and caused facial abrasions and aluminum tipped darts with stainless swelling. Additionally, steel a barbed probe by flesh, barbs lodged connected the X26 insulated requiring hospitaliza- his target a rate of tion wires—toward over so that a doctor could remove the per probe 160 feet Upon striking per- scalpel. second. with a A reasonable son,3 volt, the X26 delivers a 1200 low officer with Officer training MaePherson’s ampere charge through electrical on the wires would X26 have foreseen these probes physical and into muscles.4 injuries The when confronting a shirt- impact is as powerful as it swift. The less standing asphalt. individual We electrical impulse instantly overrides the have held that force can be unreasonable system, victim’s central nervous paralyzing physical even injuries. without blows or See, throughout body, muscles e.g., render- Headtuaters v. Forest Coun- Def. ing Humboldt, target limp helpless. ty (9th See 240 F.3d 1199 Draper 1270,1273 Reynolds, Cir.2000), v. n. vacated and remanded on other (11th Cir.2004); Reeder, 3 Hickey grounds U.S. (8th Cir.1993). (2001);5 The States, tasered L.Ed.2d 1 Telelev. United

person experiences Cir.2007). also excruciating pain that radiates throughout body. presence physical injuries of non-minor Downey, See Lewis like by Bryan, however, those suffered 2. Although entirely the laser used Officеr MacPher- does not describe the electrical im- model, holding applies son was the pulse X26 our encountered a taser victim. Accord- 50,000 use of all controlled manufacturer, electric devices that ing to the volt physiological cause similar effects. charge is needed to ensure that the electrical “jump'' current through can the air or vic- manufacturer, 3. According probes clothing, completing tim's thus a circuit. The penetrate do not need to the skin in- maintains, however, manufacturer target tended to result in a successful connec- 50,000 full volts do not enter the victim's probes capable tion. The are delivering of rather, body; represents it that the X26 deliv- charge their through up electrical to two 1,200 peak voltage ers a body. of volts into the Here, clothing. inches of was shirtless when confronted Officer MacPherson. As 5. Supreme On from the remand Court in result, penetrated a probe one his skin. Saucier, opinion of its then-recent the panel 4. Tasers been Headwaters reaffirmed its earlier delivering have described as a exces- 50,000 See, charge. analysis. sive e.g., City volt force See Brown v. Headwaters Forest of 491, Humboldt, (8th County Valley, Golden 574 F.3d 495 n. 3 v. 276 F.3d 1125 Def. of Cir.2009). accurate, (9th Cir.2002). technically While

825 ..., it evaluating pain the as caused certainly degree “intense involun- relevant tary closing reflex, intrusion. the a eyes, gagging the Fourth Amendment of of temporary paralysis larynx.” of the We, along sister cir with our rejected 240 1200. F.3d at We the district cuits, stun guns have held that tasers and pepper of spray’s court’s characterization category into of non-lethal force.6 fall the “merely intrusiveness as the of infliсtion Lewis, 476; See, e.g., 581 at United F.3d significant pain transient without risk of 412, (6th Fore, v. 507 413 States physical injury.” at 1199. Id. We similar- Cir.2007); Hells An San Jose Charter of that, reject ly any contention because Jose, gels Motorcycle City Club San of only taser “temporary” results in the in- (9th Cir.2005).7 n. pain, fliction it a of constitutes nonintru- however, Non-lethal, synonymous not is intense, pain sive level of force. The is is non-excessive; all force—lethal and throughout body, felt and is adminis- justified by the need non-lethal—must by effectively tered commandeering the specific employed. level of force Beyond victim’s muscles nerves. Graham, 1865; 490 U.S. experience pain, of result in tasers “immo- (“Less Deorle, 272 also F.3d at 1285 see bilization, disorientation, balance, loss of force, force, deadly may like deadly than weakness,” even after electrical reason; without not be used sufficient has ended. current Matta-Ballesteros v. rather, subject it the Graham balanc Henman, n. 2 Cir. test.”). a ing Nor is “non-lethal” monolith 1990); City see also Beaver v. Federal force. A blast of of category pepper ic of Way, F.Supp.2d from a baton are not spray and blows (W.D.Wash.2007) (“[A]fter tased, being necessarily equivalent constitutionally lev dazed, disoriented, suspect may be simply both are els of force because classi experience Moreover, vertigo.”). tasering than relying fied as non-lethal. Rather person may injuries result in serious characterizations, we must evaluate broad pain when of intense and loss muscle con- specific employed of the force nature trol cause sudden and uncontrolled fall. Chew, specific in a factual situation. See (stating 27 F.3d at 1441 Graham upon The X26 thus intrudes victim’s in a faсtors “are not be considered physiological physical integ- functions and only relation to the amount vacuum rity way in a non-lethal other uses particular of force used effect a sei not. pepper spray do While causes zure.”). pain upon target’s intense and acts physiology, the are not effects of X26 effects, physiological high levels target’s eyes to the or respiratory limited pain, physical and foreseeable risk system. Unlike the “nonchakus” we injury that the lead us conclude X26 and City evaluated Forrester v. San Die- are a greater similar devices intrusion (9th Cir.1994), go, pain 25 F.3d 804 other than non-lethal methods force we Headwaters, delivered the X26 is far more intense have confronted. held external, localized, gradual, jury pepper that a could conclude that spray was more than “minimal intrusion” within the victim’s control. however, recognize, gener- 7. that like "Lethal force” is force that creates a sub- We force, ally capable non-lethal the taser is bodily injury. death or stantial risk of serious being employed in a manner cause the Hemet, See Smith See, Fiorino, e.g., victim’s death. Oliverv. (9th Cir.2005) (en banc). 705-07 (11th Cir.2009). (9th facts, Cir.1994).

n. In light of these agree we This analysis allows us to Eighth the Fourth and Circuit’s character- “determine objectively ‘the amount of force ization “painful taser shot as a necessary in a particular situa- ” Deorle, frightening blow.” Orem v. tion.’ Rephann, 523 272 F.3d at (quoting 448(4th Cir.2008) Graham, 396-97, (quoting 490 U.S. at Hick- 109 S.Ct. 757). 1865). ey, Viewing F.3d at We therefore con- the facts most clude tasers like the favorable to the totality X26 constitute an of the cir- medium, “intermediate or cumstances here not though justify deploy- in- did ment of the significant, quantum force,” Taser X26. Sanders v. Fresno, 551 F.Supp.2d important” The “most factor 1168(E.D.Cal.2008); Beaver, 507 under Graham is whether suspect (“[T]he F.Supp.2d at 1144 Court first finds posed an “immediate threat safety to the

that the use of a Taser signifi- constituted of the officers or others.” Smith v. City of force.”). cant Hemet, Cir.2005) (en banc) Chew, 1441). (quoting 27 F.3d at recognize We important role “A simple by statement an officer that he controlled electric devices like the Taser fears for safety safety or the others is play X26 can in law enforcement. The not enough; there objective must be fac ability to dangerous defuse a situation justify Deorle, tors to such a concern.” from a distance can obviate the need for 272 F.3d at 1281. The district severe, court cor more deadly, or even force and rectly Bryan’s volatile, concluded that er help officers, thus can protect police by ratic conduct could lead an standers, officer to be suspects alike. We hold wary. While behavior only created that the X26 and similar devices when something situation, of an unusual used dart-mode constitute an intermedi not, itself, does by justify ate, the use signifi significant level of force that must be cant force. “A desire to justified quickly resolve by governmental interest in potentially dangerous situation is not the volved.

type of governmental that, interest stand 2. Governmental Interest ‍​‌​​‌‌​​​‌‌‌‌​‌‌‌​​‌‌‌​‌​​‌​​​‌‌‌​‌​​‌‌​‌‌​‌‌‌‌‌‍in the Use of alone, ing justifies the use of force that

Force may injury.” Rather, cause serious objective facts must indicate that the sus Connor, Under Graham v. pect poses an immediate threat to the government’s evaluate the interest officer aor member of public. use of examining three core fac tors, “the sevеrity issue, of the crime at We agree with the district court that suspect whether the poses an immediate pose did not an immediate threat to threat safety to the of the officers or oth Officer bystanders MacPherson or despite ers, and actively whether he is resisting his unusual behavior. It is undisputed arrest or attempting to evade arrest unarmed, and, as flight.” 1865; U.S. at only dressed in tennis shoes and boxer Deorle, see also 272 F.3d at shorts, 1280. These it should have apparent been factors, however, are not exclusive. (“Deorle Rath he was unarmed. id. at 1281 Cf. er, we totality examine the of the circum was wearing shoes, no shirt only a pair stances and consider specific “whatever jeans of cut-off shorts. There was no- may factors appropriate particular in a where for him to secrete weapons.”). case, whether or not listed Graham.” Although Bryan had expletives shouted Foxworth, Franklin v. 876 himself while pulling his ear over and had Bryan facing was not even Officer and more ex- that shouting gibberish, to taken car, when he was shot: One of point his at no did MacPherson pletives, outside probes in the side against lodged the taser or verbal threat physical a level arm, chest, Smith, Bryan’s rather than in his See Officer MacPherson. pavement of the although the the location blood on the (recognizing that at 702-03 away that he fell from the offi- shouting there was indicates expletives, was victim officer). cer, him.9 An rather than towards un- no leveled threat armed, individual, stationary facing advancing, away standing, without Bryan was an officer at a of fifteen to twenty-five away from Offi- from distance feet fifteen to twenty-five feet far from an “immediate between the door cer MacPherson Bryan’s to that reject Mac- threat” officer. Nor the car. We Officer body of erratic, nonviolent, poten- but behavior a Bryan that constitut- contention Pherson’s anyone else, in Officer tial threat as there no by taking step a ed a threat First, pedestrians when ex- indication there were direction. MacPherson’s nearby or traffic on at the step if he a out of the street time plicitly asked “[took] car,” Finally, the incident.10 while “step away out from the confront- car” or a therefore, is, ing Bryan, Officer MacPherson had unhol- “no.” There Bryan testified X26, charged point, placing this one stered and his him a issue fact on genuine immediately must that, position respond we in a procedural posture, on this change in the any favor and conclude circumstances. The resolve the offi- circumstances here show that not advance towards Officer Bryan did most, Second, by, if had taken MacPherson confronted even cer.8 man, MacPherson, upset young not an toward Officer disturbed single step immediately im- threatening have him an one. not rendered this would justifying an intermediate threat mediate heavily on Officer MacPherson relies force, been as he still would have level Draper opinion Eleventh Circuit twenty-four away feet nineteen to roughly (11th Cir.2004), 369 F.3d 1270 Reynolds, MacPherson, by the officer’s Officer from a taser during which addressed the use of own estimate. aggressive, argumentative arrest of an unarmed, not Bryan standing, Although adopt individual. we do only was Not circuit, feet, pres- as the law of this twenty-five Draper of fifteen at a distance clearly distinguishable ent case is physical evidence demonstrates deposi- argued that 10. Officer testified in 8. for Officer MacPherson MacPherson Counsel genuine regarding whether is no issue where he there tion that the intersection tasered step MacPher- towards Officer took early it does not have a lot of traffic on response Bryan's to the on the basis son Sunday mornings did and that he you any your feet in question of "Did move presence any remember the traffic on the answered, way?” Bryan "I don't think so.” morning specific question. Other than however, are, ways one number There brother, younger Bryan, his and Officer Mac- "step.” taking a one's feet without can move Pherson, only that the record indicates taking Bryan specifically denied Because near the were an individual individuals scene asked, genuine expressly find a step when jogger playing nearby tennis and a located to this fact. exists as issue street. declarations indicate across the Their fifty seventy-five they were feet and testimony deposition MacPherson's Officer forty away, respectively. feet He testified only bolsters conclusion. pave- Bryan fell "faced onto forward” Bryan similarly that he while testified ment straight forward. fell erent, argumentative Eleventh Unlike individual who was one before the Circuit. yelling gibberish gave and angrily pacing position. who was within feet his hearing understanding contrast, or Offi- sign MacPherson, no Officer was con- orders, undisput- it cer MacPherson’s was naked, unarmed, with fronted a half sta- Draper and un- Draper ed heard tionary, apparently disturbed individual commands, and not derstood the officer’s gibberish at a shouting approx- distance only comply, engaged failed to imately twenty only similarity feet. The argument. increasingly оfficer in an heated to the factual Draper circumstances Id. at Four asked 1273. times the officer Draper Bryan were stopped both and Draper paperwork to retrieve cab violation, loud, for a traffic were and were four heard Draper his truck and times police. tasered officer, to turned toward the truck severity Bryan’s pur around, comply, but then turned walked little, ported “provide[] any, offenses if loudly back officer accused toward the and basis [Officer MacPherson’s] use of “disrespect- “harassing” the officer of Smith, physical force.” F.3d at him, 702. ing” growing belliger- a displaying undisputed It ence. not until fifth time initial Id. It was a requested that the “crime” was mere traffic infraction— paperwork officer Draper comply, yelled wear a failing punishable by refused seatbelt — officer, paced agita- toward him generally fine. Traffic violations will not tion that the officer resorted to the taser. support the use of a significant level of Id. The Eleventh Circuit Marcantel, determined Deville force. See (when Draper a verbal (“Deville arrest command Cir.2009) 156, 167 comply had refused to with the first five for a stopped minor traffic violation ... commands) accompanied by attempt to making substantially the need for force physically Draper par- handcuff “in these suspected if lower than she had been of a circumstances, ticular may well have or crime.”). serious Officer MacPherson also likely would have escalated a tense and reasonably claims that he believed physical difficult situation into a serious had committed three misdemeanors —re struggle, in which either or Draper [the offiсer, sisting comply failure to seriously Id. at officer] would be hurt.” order, using with a lawful being or 1278. under the influence any controlled sub 11—and that stance these constitute “seri addressed, argued never let alone dangerous with, activity.” ous'—and left Officer MacPherson once he his —criminal addition, disagree We Officer MacPherson’s as car. whereas remained While stationary at sessment. “the commission of a approximately a distance of feet, twenty single or at most misdemeanor offense is ‘not be taken step took a forward, it lightly,’ finding militates Draper was located close to the pacing agitated officer and fashion force used to effect an arrest reasonable Thus, while with him. arguing suspect the where the was also nonviolent and officer in Draper confronting bellig- ‘posed safety no threat of the offi 2800(a) every § (making (punishing willfully Cal. it a mis- “who Veh.Code individual re- willfully sists, comply fail delays, demeanor to or refuse to any public or obstructs officer officer); peace with an order of Cal. Health discharge ... in the ... of or her office” Safety (making § & Code it unlawful to up up year $1000 to 1 with a fine or in a "use, or be under influence con- county jail). substance"); § trolled Cal.Penal Code ” Headwaters, analysis, mentally ill one for cers others.’ Gross, criminals, have one for we found 1204(quoting Hammer serious Cir.1991)). (9th None of the of emotionally 846 that even “when an disturbed was or of Bryan cited fenses for which ‘acting inviting individual out’ and offi- is inherently is dan suspected him, which he was to subdue deadly cers to use violent, already and as dis gerous or using in governmental interest such force safety cussed, little to no Bryan posed by the fact that is diminished officers Gerrish, F.3d Parker v. 547 threat. mentally a ill are ... with indi- Cf. confronted Cir.2008) (1st (“Though driving while 9 reasoning The same vidual.” Id. at 1283. offense, not a serious it does intoxicated is of A applies intermediate levels force. arresting danger to the present a risk of in mentally ill is need a doc- individual when an officer presented officer that is tor, jail cell, a in the usual not and case— in engaged an offense suspect a confronts where such individual is neither a an assault.”). Therefore, robbery like anyone threat to himself nor to else—the government inter there no substantial deploying government’s interest force to force to effect significant in using est him not as substantial as its detain is these misdemeanor vio Bryan’s arrest for deploying appre- interest that force the State California lations that even Moreover, a dangerous hend criminal. minor.12 Miller v. has are determined Cf. ill mentally a purpose detaining individ- (9th 964 Cir. County, 340 F.3d Clark him, to help ual is not to him. punish 2003) felony “by a to be definition (finding important an government has interest state”). by the a crime deemed serious providing person in need assistance ar MacPherson now Officer care; thus, psychiatric the use of force justified of the taser was gues that use may by that nec- justified that interest may Bryan have been because he believed essarily degree differs in kind both subject to ill thus detention. mentally justi- from the of force that would be use contrary: To if Officer MacPherson who has committed a person fied mentally Bryan was disturbed believed crime or threat to the poses who commu- greater take should have made effort to nity. Thus, whether Officer MacPherson through less intru control of the situation had committed a Bryan believed that vari- hеld, have prob sive As we “[t]he means. ety of misdemeanors or that nonviolent posed thus the tactics to be by, lems ill, mentally this Graham factor unarmed, emotional employed against, support deployment does not ly creating individual who distraught of force. intermediate level resisting arrest are ordi disturbance or “resistance,” Turning Bryan’s note narily those in law different from involved complied every in fact to subdue an armed enforcement efforts by Officer MacPherson command issued recently who dangerous criminal has Deorle, except asserts he did not the one he offense.” committed a serious hear —to in the car. Even if Although re remain 1282-83. we have failed to with the command to re- comply fused tracks of excessive to create two addition, Cir.2008). previously we have circuits have likewise concluded Our sister 12. involving relatively suggested not violence that felonies are minor misdemeanors provide support signifi- the use support deployment generally will limited Meredith, See, See significant e.g., Fogarty cant force under Graham. v. Galle- force. Chew, 1063; (10th Cir.2008); F.3d at 1442-43 & n. F.3d at gos, Herbert, Reese v. vehicle, force, main in noncompliance such but the level of force an individual’s sup- does not constitute “active resistance” resistance will support dependent on the porting a substantial use of force. Follow- factual underlying circumstances that re- ing Supreme Court’s instruction in sistance. Graham, we have drawn a distinction be- conduct, Reviewing Bryan’s we conclude passive tween and active resistance. See if even we were to consider his degree

Forrester, (finding 25 F.3d at 805 of compliance solely from the officer’s sub- seated, protestor’s “remaining refusing to view, jectivе point of this case would be move, and refusing weight” despite to bear passive closer resistance we con- police orders to the contrary constituted in fronted Forrester and Headwaters or resistance”); “passive see also Headwa- Smith, the minor resistance than it ters, 276 F.3d at (finding 1130-31 that truly would tobe active resistance. The protestors, together who were chained only resistance Officer MacPherson testi- with devices and building refused to exit a fied to was a failure to resisted). comply with his ordered, passively when order that remain his car. By shouting gibberish hitting Shouting gibberish hitting qua- one’s himself in the quadriceps, Bryan may not driceps behavior, is certainly bizarre perfectly passive. “Resistance,” have been such behavior cry actively is far from however, should not be understood as a struggling with an officer attempting to state, binary with resistance being either restrain and arrest an individual. Com- completely passive Rather, or active. it pare Madison, Abdullahi v. City runs gamut from the purely passive 763‘, (7th Cir.2005) (involving an protestor stand, simply who refuses to swinging arrestee a belt at an officer and the individual who physically assaulting “strenuously resisting]” police as the at- the officer. must ultimately We eschew tempted him); to handcuff McCormick v. unhelpful blanket labels and evaluate the Lauderdale, City Fort 333 F.3d nature of in light resistance of the 1241-42(11th Cir.2003) (involving an arres- actual facts of the case. example, For engaging tee and advancing on officers Hemet, Smith v. City we confronted an stick); with a Jackson v. Bremer- individual who “continually ignored” officer ton, Cir.2001) (in- commands to remove his hands from his volving an interfering individual with an pockets and to not re-enter his home. attempted arrest of an individual en- addition, “physically resisted ... “melee”). gaging the officer in a inAs only a brief time.” 394 F.3d at Al 703. Smith, Bryan’s “resistance” “par- was not though Smith was not perfectly passive in Smith, ticularly bellicose.” 394 F.3d at encounter, we stated that it did not Indeed, 703. when we view the appear “that facts Smith’s partic resistance was ularly most favorable to as bellicose” and thus found that this provided factor stage little must at this support proceedings, for a use significant purely force. Id. Even conduct passive does not constitute resistance at resistance can support the use of some all.13 jury may

13. testimony credit that way. turned to face that That the he did not hear the officer’s order to remain yards away officer was instead in the other suggests in the car. The evidence may prevented Bryan direction have thought again approach officer would hearing the commands. passenger from the side of his car and that arrival of those officers militate aware considerations additional Two con- the tactical calculus change use would MacPherson’s finding Officer him, likely opening up additional First, fronting undisputed it is reasonable. without the resolve the situation ways failed to warn MacPherson that Officer of force. the X26 an intermediate level shot with need for would be Bryan that he Thus, dispositive, the order to no means comply with while if he did recognized in provide did not in his car.14 We Officer MacPherson remain normally pro- ap- deploying officers the X26 and warning before Deorle feasible, even where warnings not consider less intrusive such did parently vide deadly, and is less than factor effecting Bryan’s the force arrest whеn means of warning give failure to such analysis. that the into our significantly Graham 1284; 272 F.3d at See factor to consider. Interests Balancing Competing Jackson, 653(finding also

see “in- interest” “safety the officer’s that review of the Graham factors Our was group further when creased best, had, government at a that the reveals irritant a chemical that by police warned in of force against minimal interest the use move back they if did not used would be jus This interest is insufficient to Bryan. comply”). refused to group ... and an intermediate level of tify the use of warning that give Here, feasible it was cogni are against an individual. We Bryan imminent if did was the use of force Supreme Court’s command zant of warning comply. not While per “from the an officer’s actions evaluate him to com- not have caused may may or on the of a reasonable officer spective give time to that “ample there was ply, scene, vision of rather than with 20/20 and no reason whatsoev- warning order or Graham, 490 U.S. at 109 hindsight.” Deorle, at 272 F.3d to do so.” er not recognize reality 1865. We also S.Ct. officers are often forced to “police that Second, are have held judgments circum split-second make other tactics “required ‘[w]hat to consider —in tense, uncertain, rap that are the arrest.” stances to effect if were available’ the amount of force idly evolving Headwaters, (quoting at 1204 —-about 1443).15 necessary particular in a situation.” that is Chew, Mac- Officer 109 1865. This does Id. at S.Ct. no less there were argues Pherson however, mean, that a Fourth Amendment appre- available intrusive alternatives only in those rare however, will be found there violation Objectively, Bryan. hend attorney reasonаble, where an officer and clear, intrusive instances and less were a sufficient number of are unable to find MacPherson knew Officer alternatives. the vic adjectives to describe compelling to the were en route officers additional been, it mean that we tim’s conduct. Nor does was, have or should scene. He principle challenge the settled argues 15. We do not that he now 14. Officer MacPherson employ the "least police officers need not However, Officer MacPher- Bryan. did warn Greg- degree possible. See of force intrusive” testimony this claim. Officer belies son's own Maui, County 1107 ory v. consistently testified that has MacPherson Forrester, Cir.2008) (citing F.3d at in his to remain repeatedly ordered 807-08). recognize equally merely We command, clearly constitutes This vehicle. principle officers must consider settled hardly him that if he failed warns but it effecting the arrest intrusive methods of less would be shot with to his car he return presence of feasible alternatives and that the taser. analysis. to include in our is a factor analysis clearly our on what ask whether can base officers his conduct “violate[d] actually during statutory established felt or believed incident. constitutional Rather, rights if person we must the officers’ which a reasonable would ask con- “ have known.” ‘objectively Fitzgerald, duct is reasonable’ Harlow 800, 818, the facts and circumstances U.S. confronting L.Ed.2d (1982). If them” without for an an officer’s use of regard officer’s sub- force was “premised on a jective intentions. reasonable belief that such lawful,” force was the officer grant- will be We thus that the conclude intermediate suit, ed immunity notwithstanding employed by level of forсe Officer Mac- the fact excessive force deployed. was against Bryan Pherson excessive Deorle, 1285; Saucier, 272 F.3d at see also light of the governmental interests at 533 U.S. at (asserting S.Ct. 2151 attempted stake. never to flee. qualified immunity that the analysis asks clearly He was unarmed and standing, “whether it would clear to a reasonable any direction, advancing without next to officer that his conduct was unlawful his vehicle. Officer MacPherson was confronted”). must, situation he We standing approximately twenty away feet therefore, turn to the state of the law observing Bryan’s stationary, bizarre tant- the time Officer MacPherson tasered rum with his X26 charged. drawn and Bryan to determine whether Officer Mac- Consequently, objective facts reveal a Pherson could reasonably have believed tense, static, situation with Officer his use of the taser was ready respond MacPherson to to de- Saucier, constitutional. See 533 U.S. at velopments awaiting backup. Bryan while 202,121 S.Ct. 2151. risk, flight dangerous was neither a fel- on, Therefore, nor an threat. immediate All of the factors articulated in there simply was “no immediate need to along our applica recent Graham — [Bryan]” subdue Officer before MacPher- tions of Graham in Deorle and Headwa son’s fellow officers arrived or less-invasive placed Officer MacPherson on fair ters — Deorle, means were attempted. 272 F.3d notice that an intermediate level of force 1282; also, see Blankenhom v. unjustified. Fogarty was Gallegos, See (9th 463, Cir.2007) Orange, 485 480 F.3d (10th Cir.2008) 1147, (“Con (“ ‘[I]t is the need for force which is at the sidering Fogarty’s that under version of ” heart of the Graham factors’ (quoting events each of up the Graham fаctors lines Riverside, County Liston v. favor, in his this case is not so close that (9th Cir.1997))). 965, 976 Officer Mac- precedents our fail portend would to quickly Pherson’s desire to and decisively constitutional unreasonableness of defen end unusual and tense situation is un- actions.”); alleged Boyd dants’ v. Benton derstandable. His chosen method for do- (9th Cir.2004) 773, County, 374 F.3d ing so Bryan’s violated right constitutional (asking “a whether reasonable officer be free from excessive force. would have had notice fair that the force unlawful”). employed was Officer Mac B. Did Officer MacPherson Violate Pherson for stopped Bryan the most minor Bryan’s Clearly Established of offenses. There no reasonable ba Rights? sis to conclude that was armed. He Having concluded that twenty away Officer was feet physical did not ly MacPherson’s violated actions confront the officer. The facts suggest rights, Fourth Amendment we next must even facing was not Officer Based on recent statements re- these he was shot. A reason- when MacPherson tasers, dearth garding use of in these circumstances would able officer must conclude that a prior authority, we that it was unreasonable known have reasonable officer Officer MacPherson’s force. intermediate deploy reasonable position made a mis- could have constitutionality of law regarding take closely not need find doWe in the circumstances Offi- of the taser use right to show that a case law analogous July cer MacPherson confronted Baca, Moreno v. clearly established. Accordingly, MacPherson enti- Officer (9th Cir.2005); Hope see also qualified immunity. See Ctr. tled Pelzer, 536 U.S. S.Ct. for Angeles v. Los Coun- Bio-Ethical (2002) (“[Officials can 153 L.Ed.2d 666 Rеform 780, 794 ty Dept., 533 F.3d that their conduct violates Sheriff still on notice Cir.2008). in novel cir law even factual established Oliver, cumstances.”); at 907 CONCLUSION right clearly can be estab

(finding that the officer’s conduct “lies so lished where facts, must, Viewing as we very core obviously at the of what most favorable con- prohibits that the un Fourth Amendment clude, summary purposes judg- readily ap the conduct was lawfulness of ment, that used Officer MacPherson un- officer], notwithstanding the parent to [the However, constitutionally excessive force. law”). However, case fact-specific lack of confronting officer the cir- reasonable there July Supreme as was no cumstances faced Officer MacPherson or decision of our court Court decision 24, 2005, July could have made rea- taser, use addressing whether the of a believing sonable law in mistake of use X26, in such the Taser dart mode con as of the taser reasonable. Accordingly level In stituted an intermediate of force. the district court’s denial REVERSE date, deed, only before that statement ‍​‌​​‌‌​​​‌‌‌‌​‌‌‌​​‌‌‌​‌​​‌​​​‌‌‌​‌​​‌‌​‌‌​‌‌‌‌‌‍summary qual- on the basis of judgment regarding pub in a we had made tasers ified immunity. they among opinion

lished were REVERSED. “variety ‘pain compliance’ non-lethal by police used forces.” San Jose weapons Club, Angels Motorcycle Hells

Charter of And, Eighth at 969 n. 8. as the F.3d noted, “[t]he

Circuit has Taser is a rela force,

tively implement new and case

law is developing.” related to Taser City Valley, Golden Brown v. TAMAS; Tamas; L. Estera Ruth S. Mo- Cir.2009). (8th n. 5 Two other nica, through court-ap- her panels recently, involving have cases pointed guardian purposes of liti- circumstances, that the different concluded gation, Plaintiffs-Appellees, sufficiently is not regarding law tasers denying to warrant offi clearly established immunity. Agara qualified cers Mottos v. DEPARTMENT OF SOCIAL & (9th no, Cir.2010); SERVICES, 1089-90 HEALTH State Of Wash- Seattle, Baker, individually ington; Marschell Brooks Cir.2010). capacity acting and in her official un- 1031 n. 18

Case Details

Case Name: Bryan v. MacPherson

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 18, 2010

Citation: 630 F.3d 805

Docket Number: 08-55622

Court Abbreviation: 9th Cir.