Mattos v. Agarano

commonly Although public’s un- right is access to as that word scandalous in produced litigation long documents derstood. given great established and has been word, usage of the the common Under weight equity from the time of the courts sexually priest that a has allegations England, given in courts have likewise ser- assuredly “scan- are most abused children privacy consideration to interests of ious onto they bring discredit dalous” because involved. those light In alleged perpetrators. sum, affirm bankruptcy we 107(b), § the bank- mandatory language of discovery ruling court’s the release in Fathers granting court erred ruptcy disclosing Father name un- documents M’s punitive M and D’s motion strike 26(c), the public’s der Rule because serious memorandum and its damage estimation if safety concerns cannot be addressed Fa- attachments. ther M’s name is redacted. But because the record does not reflect the existence of C significant public similar interest that 26(c) M D also invoke Rule Fathers requires the disclosure of Father iden- D’s 107(b) requesting § redaction of information, tifying hold Father in the identifying information contained identifying D’s information must be re- transcripts and exhibits.11 Our deposition any discovery dacted from documents equally deposi- to the ruling applies here Finally, are released. because of the man- so that Fathers M and D’s transcripts, tion datory duty keep scandalous material redacted identifying information should be request party confidential at the of a under depositions filed with the bank- 107(b), § we reverse the court’s decision to court, identifying and Father D’s ruptcy punitive damages release the memoran- (but M’s) not Father should be information and attached documents.12 dum that were depositions redacted from the part AFFIRMED and REVERSED not so filed. part. IV 26(c) 107(b), §

Rule as we have them, to use

interpreted require courts determining documents con-

care when affecting information taining sensitive Troy MATTOS; Jayzel Mattos, interests can made person’s privacy be Plaintiffs-Appellees, objections. A public person’s over that implement procedure court must more

making such a determination even Ryan AGARANO; Aikala; Darren carefully objecting to the person Kunioka; Halayudha Stuart MacK proceed- party disclosure was not night, Defendants-Appellants, (and, thus, ing and had limited notice little privacy ability negotiate or no issues information). County, Maui Defendant. challenge damaging Although party 12. shall bear its own costs on Appellee Claimants contend that Each priests argument, we have waived this appeal. explained may for the reasons reach this issue above, supra note 6. Brooks, Plaintiff-Appellee,

Malaika Seattle, Defendant,

City of Daman, capacity an L. in his as

Steven Depart- Police

officer of Seattle

ment; Jones, M. in his individ- Donald capacity an

ual as officer of the Se- Department; M.

attle Police Juan

Ornelas, capacity in his individual De- officer of Seattle Police

partment, Defendants-Appellants. 08-15567,

Nos. 08-35526. of Appeals,

United States Court

Ninth Circuit.

Argued and Dec. Submitted 2010.

Filed Oct. Moto, Counsel, Corporation T.

Brian Martin, Lutey, L. Moana Laureen M. Rost, Cheryl Tipton, Depu- Richard B. Counsel, Wailuku, HI, Corporation ties for defendants-appellants Agarano, Darren Aikala, Kunioka, Ryan Halayu- Stuart MacRnight. dha Cobb, L. Ted Buck and Karen Stafford Seattle, WA, for Frey Cooper, defendants- Daman, Ornelas, appellants Steven Juan Donald Jones. Honolulu, HI, Seitz, plain- Eric A. for Troy Jayzel tiffs-appellees Mattos Mattos. PC, Seattle, WA, Zubel,

Eric Eric Zubel Malaika R. Brooks. plaintiff-appellee for Burton, of John John The Law Offices Pasadena, CA, Burton, curi- amicus ae. Hawaii, Gluck,

Daniel Marc ACLU of HI, Honolulu, for the amicus curiae. Talner, Nancy Lynn Washing- ACLU Shaeffer, Foundation, R. Mac- Joseph ton Seattle, WA, Bayless, Hoague Donald & for the amicus curiae. case,

munity. Jayzel Troy Mattos’s questions the district court ruled regarding fact existed whether the use of a Jayzel constitutionally taser and, therefore, reasonable denied the offi- summary judgment cers’ motion for on the KOZINSKI, ALEX Chief Before: qualified immunity. basis of Two different SCHROEDER, BARRY Judge, MARY M. panels of our court reversed the district SILVERMAN, GRABER, P. G. SUSAN courts and held that the enti- officers were McKEOWN, M. MARGARET immunity. granted to qualified tled en FISHER, A. C. RICHARD RAYMOND that, although banc review. We now hold RAWLINSON, PAEZ, B. JOHNNIE in alleged Plaintiffs both cases have consti- CLIFTON, R. and CARLOS RICHARD violations, tutional the officer Defendants BEA, Judges.* T. Circuit qualified immunity are entitled to on Plain- § tiffs’ 1983 claims because the law was PAEZ; Opinion by Judge Concurrence clearly not established at the time of the SCHROEDER; by Judge Partial incidents. We therefore reverse the dis- Partial Concurrence and Dissent Chief qualified immunity trict courts’ denial of KOZINSKI; Partial Judge Concurrence Brooks, however, on these In claims. by Judge and Partial Dissent affirm quali- the district court’s denial of SILVERMAN. immunity fied on her state law assault and battery claims the defendant offi- OPINION cers. PAEZ, Judge: Circuit Background I. Brooks present questions

These cases about whether the use of a taser to a subdue 23, 2004, morning On the of November suspect resulted the excessive use of Plaintiff-Appellee Malaika Brooks was force and whether the officers are entitled driving 11-year-old her son to school qualified immunity.1 Brooks v. Seattle, Washington. years Brooks was 33 Seattle, Plaintiff Malaika Brooks was old and seven pregnant months tased; in Agarano, Jay- Mattos v. Plaintiff time. The street on which Brooks was zel Mattos was tased. Both women were driving a 35-mile-per-hour posted had tased during police encounter offi- speed limit until the school zone began, They subsequently cers. filed suit under point which limit speed became 20 § seeking damages U.S.C. for the per miles hour. When Brooks entered the alleged violation of their Fourth Amend- zone, school she driving per 32 miles rights. case, ment In Brooks’s the district zone, hour. Once the school a Seattle court alleged ruled violation of police parked officer street meas- her Fourth right Amendment to be free speed gun, ured Brooks’s with a radar from the police excessive use of force when found that driving she was faster than 20 hour, officers tased her and that per those miles and motioned for her to pull were not entitled to im- over. * Judge Rymer togeth- Pamela A. was drawn as a mem- 1. Our en banc court heard these cases er, ber of the en banc court for these cases. dispo- and we have consolidated them for death, Following her recent we determined sition. necessary replace- it was not draw judge. ment running at this Brooks’s car was still over, Police was. Seattle pulled Brooks Once point. her car. approached Ornelas Juan Office she was Brooks how fast asked

Ornelas preg- Brooks was learning that After her driver’s her for and then asked driving nant, display continued to the taser Jones license Ornelas her gave Brooks license. pro- how to talked to Ornelas about the car “well, out of then told her son where do of them asked ceed. One school, across the which was it?” Brooks heard the you walk to want to do “well, it in pulled had don’t do her respond Ornelas other from where street stomach; thigh.” During left, min- do it returning five car over. Ornelas standing next to interchange, Jones was li- Brooks her driver’s give later to utes window, driver’s side Ornelas Brooks’s that he was inform her back and cense left, and Daman was standing to Jones’ violation. speeding her for going to cite them both. standing behind that she had not been insisted sign that she would speeding and discussed After Jones and Ornelas this, again. left At Ornelas citation. Brooks, opened Ornelas the where to tase door and twisted Brooks’s driver’s side ap- after, Donald Jones Officer Soon behind her back. Brooks stiffened up arm car asked her Brooks in her and proached steering the wheel body her and clutched cita- sign speeding to going if she efforts to remove to frustrate officers’ sign the again refused to tion. Brooks the car. Ornelas held her her from While accept it but said that she would citation taser, arm, cycled showing his Jones it. Jones told Brooks signing without point At after Brooks what it did. some an not constitute signing the citation would grabbed Brooks’s arm but before Ornelas signature would guilt; her admission Brooks, to applied the taser Ornelas Jones the cita- that she received simply confirm keys to from Brooks’s was able remove lying, told Jones that he was tion. Brooks keys dropped to the floor ignition; car words, and exchanged heated the two of the car. sign if Brooks did not said that Jones cy- after Twenty-seven seconds Jones sergeant call his and she citation he would taser, holding with Ornelas still cled his jail. go would to back, applied her Jones her arm behind later, thigh to left drive- the taser Brooks’s Sergeant A minutes Steven few cry and he, too, began mode. Brooks to stun at the scene and Daman arrived Thirty-six honking her car horn. started cita- sign if would asked Brooks she later, applied Jones the taser to seconds no, told Brooks said Daman tion. When later, arm. seconds Brooks’s left Six to “book her.” Ornelas Ornelas and Jones to Brooks’s neck as applied Jones the taser car, telling get to out of the told Brooks cry her car continued to out honk she jail” failing “going to her that she was tase, fell After third Brooks horn. why. asked Brooks reply when Brooks dragged in her car and the officers over At this out of the car. refused to out, on the street laying her face down her asked pulled out taser and point, Jones hands behind her handcuffing if it was. Brooks Brooks she knew what back. what the did not know indicated officers, “I have to and told the Brooks to the

taser was The officers took bathroom, pregnant, department I am I’m fire station where go precinct day, my baby.” examined her. The same days having paramedics than less at the Harborview was examined pregnant Brooks Brooks then asked how Jones by qualified immunity. a doctor who confirmed were not entitled to Medical Center pregnancy expressed some con- The district court also denied the defen- rapid heartbeat. Af- cern about Brooks’s motion dants’ Brooks’s state law examination, Brooks was taken to ter this battery against assault and claims the offi- King County Jail. cers, concluding that these claims present- questions jury ed for a and that the offi- 6, 2004, On December of Seattle cers were not qualified entitled to state complaint filed a misdemeanor criminal immunity on these claims. The district Brooks, against charging her with refusal granted summary court the defendants’ sign acknowledgment of a traffic judgment § motion as to Brooks’s citation, in violation of Seattle Municipal negligence claims Chief Kerli- 11.59.090, arrest, resisting Code kowske and the of Seattle. Thereaf- Municipal violation of Seattle Code ter, interlocutory ap- the officers filed this by jury 12A.16.050. Brooks was tried peal. only issue raised on appeal May 4, 2005, beginning on and after a two- the officers is whether the district court day jury trial the of failing convicted her rejected erred when it their claim for fed- sign the speeding jury ticket. The qualified immunity eral and state could not reach a verdict on resisting immunity. arrest charge, and it was dismissed. gave birth to her daughter Background II. Mattos

January 2005. The pre- district court was 23, 2006, August On Jayzel sented with evidence that Mattos and daugh- Brooks’s her Troy husband had a dispute. ter was domestic healthy, born and Brooks’s counsel p.m., Jayzel C.M., Around 11 asked her argument confirmed at oral before 14-year-old daughter, police, court that to call the daughter healthy remains later, which C.M. now. did. Several minutes experienced Brooks herself has not Maui Agarano, Police Officers Darren any lasting injuries Ha- tasing, from the layudha MacKnight, though and Stuart Kunioka carry she does permanent several arrived the Mattoses’ burn scars from the residence. As the incident. approached residence, officers Ornelas, Jones, Daman, Brooks sued Se- Troy saw sitting top on the of the stairs attle Police Department Chief Gil Kerli- outside the front door with a couple of kowske, and the of Seattle for exces- open lying nearby. Troy beer bottles sive violation of the Fourth tall, six feet three inches approximately Amendment; Kerlikowske and the 200 pounds, and he smelled of alcohol Ornelas, Jones, Seattle for negligence; and when the Ryan officers arrived. Officer and Daman for battery. assault and The Aikala arrived himself soon after. case is before interlocutory us on appeal from the district summary court’s judg- approached Kunioka Troy first and in- ruling ment the defendant officers him formed about the call. Troy told Daman, Jones, and Ornelas are not enti- Kunioka that Jayzel argu- he and had an qualified immunity. ment, tled to The district but he stated that nothing physical court denied the defendants’ motion as to had occurred. As Kunioka continued to § Brooks’s question Troy, excessive force claim Troy agitated became against officers, concluding that with rude. Troy Kunioka asked if he could all the evidence construed in speak Jayzel Brooks’s fa- to ensure that she was vor, alleged she a Fourth Amendment okay. Troy ex- went get Jay- inside to zel, cessive force claim and that Agarano stepped inside residence structing government operations, viola- Jayzel Troy returned with him. behind Agarano § when he saw tion of Hawaii Revised Statutes 710- angry became initially Jayzel ultimately was All charges his residence. were inside up in front of Troy, but she ended behind dropped. him speak front door to way the officers and oth- The Mattoses sued Agarano Troy yelled at the officers.

with Fourth, Fifth, of their ers for violations had because he out of the residence rights and Fourteenth Amendment based Agarano Jay- asked to be inside. right no entry into their on the officers’ warrantless outside. speak if could to her zel he home, arrests, and the officers’ use of their outside, go but before Jayzel agreed Jayzel. The district court the taser on Agarano’s request, comply could she summary judgment to the defen- granted and stood Aikala entered the residence except dants on all of the Mattoses’ claims Aika- living room. When the middle Fourth Amendment excessive force their arrest, Troy under la announced that was tasing. for the court claim district standing in front of already was Jayzel ques- concluded that there were material immediately move out of Troy. She did not deciding of fact critical to whether tions in to arrest way. As Aikala moved reasonable, tasing constitutionally was chest, Jayzel’s pushed up against Troy, he pretrial ruling on the precluded which arm to “extended point [her] at which Thereafter, immunity. issue of being smashed stop breasts [her] interlocutory appeal the officers filed this Aikala then asked body.” Aikala’s challenging the denial of their claims to At touching an officer?” Jayzel, you “Are qualified immunity. time, Jayzel speaking the same why Troy being ar- Agarano, asking III. of Review Standard rested, to defuse the situation attempting and Jurisdiction everyone should calm down by saying that outside, concern de novo a district court’s expressing We review go sleep- on summary judgment that the commotion not disturb of the basis denial in the residence. ing immunity. children who were v. qualified of Sacra Blanford (9th 1110, 1114 County, 406 F.3d mento Then, warning, Aikala shot his without Cir.2005). mate disputed issues of Where Jayzel Id. Jayzel dart-mode. taser exist, we assume the version of rial fact burning painful and feel- “felt an incredible by the non- the material facts asserted muscles joints all of ing locking [her] [and] Moore, KRL v. Estate moving party. Agara- hard on the floor.” of f[e]ll and [she] (9th Cir.2008). 1184, 1188-89 512 F.3d We Troy Troy. MacKnight no and handcuffed of all reasonable inferences favor draw custody; Troy Jayzel were taken into and non-moving party. v. El John harassment, in violation charged with was of (9th Cir.2008). Monte, 936, 941 515 F.3d 711-1106, § of Hawaii Revised Statutes jurisdiction court has to review This arrest, in violation of Hawaii resisting and immunity to 28 qualified pursuant of 710-1026, denial Jayzel § Revised Statutes Forsyth, § 1291.2 Mitchell v. and ob- U.S.C. See with harassment charged previously evidentiary sufficiency. We have exists between 2. We note that a distinction appealable an explained the former is denial ability review a district court’s our the latter is not. See Moran v. summary judgment order while qualified immunity of 839, (9th Cir.1998) exist, Washington, 844 147 of material fact where unresolved issues (“Because contesting a de- is ability [defendant] a court’s to review district and our but, evidentiary sufficiency, ground termination of summary judgment on the denial of 440 530, 2806, (2004) 511, J.,

472 105 S.Ct. 86 157 L.Ed.2d (Kennedy, U.S. dis- (1985) senting)). The (holding purpose qualified “that a immu- L.Ed.2d district nity is to strike balance between the a claim of immu- court’s denial of competing “need to hold public officials that it turns on an issue nity, to the extent power accountable when exercise ir- law, appealable is an ‘final decision’ responsibly and the need to shield officials § meaning 28 U.S.C. within harassment, distraction, liability the absence of a final notwithstanding they perform their duties reason- judgment.”). ably.” Id. Discussion IV. In determining whether an officer is en qualified immunity, titled to employ we begin by discussing qualified immu- first, two-step test: we decide whether the nity generally, excessive plaintiffs officer violated a constitutional apply then these doctrines to the facts in right; if the answer to that inquiry is Seattle Mattos v. “yes,” proceed to determine whether Agarano, respectively. the constitutional right “clearly estab Supreme explained The Court has in light lished of the specific context of the qualified immunity pro- doctrine of “[t]he case” at question. the time of the events government tects liability officials ‘from York, 817, Robinson v. damages for civil insofar as their conduct Cir.2009) Katz, (citing Saucier v. 533 U.S. clearly does not violate established statuto- 194, 201, 2151, 121 S.Ct. 150 L.Ed.2d 272 ry or rights constitutional of which a rea- — (2001)), denied, —, cert. U.S. ” person sonable would have known.’ Pear- 1047, (2010). S.Ct. 175 L.Ed.2d 881 Callahan, 223, son v. 555 U.S. 129 S.Ct. Supreme Court has instructed that we (2009) 815, 172 L.Ed.2d 565 (quoting may “exercise sound [our] discretion in 800, 818, Fitzgerald, Harlow v. 457 U.S. deciding which of the two prongs of the (1982)). 102 S.Ct. 73 L.Ed.2d 396 qualified immunity analysis should be ad Qualified immunity shields officer from Pearson, dressed first.” S.Ct. liability even if his or her action resulted Here, we follow the Saucier order as recit “ law, fact, from ‘a mistake of mistake above, ed because “two-step procedure or a mistake based on questions mixed of promotes development of constitutional ” law fact.’ (quoting Id. Groh v. Ra- precedent” in an area where this court’s mirez, 551, 567, 540 U.S. guidance sorely S.Ct. needed.3 Id. rather, appealing purely legal (internal ing party”) quotation issue marks omit- [plaintiff's] right whether or not ted). Seattle, claimed In Brooks v. the officers of speak clearly established at the time of significantly dispute do not Brooks's version termination, [plaintiff’s] we conclude ... that They simply of the argue material facts. possess appellate jurisdiction do indeed they qualified are entitled immunity as a appeal pursuant over [defendant’s] to 28 Agarano, matter of law. In Mattos v. al- 1291”) (internal § quotation U.S.C. marks though the district court found that there omitted); and brackets see also Scott v. Har- fact, were unresolved material issues of ris, 372, 376, 8, 550 U.S. 381 n. 127 S.Ct. argue appeal in this are 1769, (2007) (explaining 167 L.Ed.2d 686 qualified immunity entitled to as a matter of a district immunity court’s denial of assuming law even the Mattoses' version of summary judgment on motion because drawing the facts and all reasonable infer- "there are material issues of fact on which the ences their favor. turns,” qualified immunity issue of is reviewa- "pure question

ble as a of law” once the court MacPherson, 805, Bryan 3. See v. 630 F.3d has "determined the relevant set of facts and Cir.2010) (holding although 832-33 drawn all inferences in favor of the nonmov-

441 case, in a appropriate particular official whether step For the first —-whether ” right begin Bryan or not listed in Graham.’ v. Mac a constitutional violated —we (9th Cir.2010) guid- Pherson, 805, looking Supreme to the Court’s by 630 F.3d force in Foxworth, use of Gra- ance on the excessive (quoting Franklin v. 31 F.3d Connor, 386, (9th Cir.1994)). 490 U.S. 109 S.Ct. ham v. 873, 876 (1989). Graham, 1865, In 104 L.Ed.2d 443 Scott, example, Supreme “[determining instructed that the Court a police considered whether officer Court a particu- force used to effect whether the constitutionally excessive force when used under the Fourth lar is reasonable seizure fleeing he ran a motorist off the road to balancing a careful of requires Amendment public-endan- ... “stop motorist’s] [the quality of the intrusion the nature by ramming gering flight the motorist’s Fourth Amendment inter- the individual’s 374, at car from behind.” 550 U.S. countervailing governmen- against the ests In assessing governmen- S.Ct. 1769. 396, at tal interests at stake.” U.S. stake, asked, at tal interests the Court (internal marks quotation 109 S.Ct. go weighing does a court about “[H]ow omitted). recently, the Court has More probability injuring lesser perhaps per are no se rules that there emphasized killing bystanders against or numerous Amendment excessive force in the Fourth larger probability injuring perhaps context; rather, courts “must still slosh 384, single person?” at killing Id. through the factbound morass way [their] “it thought 127 S.Ct. 1769. Court or not [a of ‘reasonableness.’ Whether process take appropriate into application actions constituted defendant’s] only at account not the number of lives force,’ ‘deadly all that matters is wheth- risk, culpability.” but also their relative actions were reason- defendant’s] er [the Thus, in assessing governmental Id. Harris, 372, 383, v. 550 U.S. able.” Scott Graham, interests at stake under we are (2007). 1769, L.Ed.2d 686 127 S.Ct. free to consider issues outside the three by first consid apply We Graham enumerated above when additional facts alleged quality the nature and ering necessary totality are to account for the intrusion; govern consider the we then given in a case. of circumstances (1) by looking at stake mental interests “ ” Ultimately, important’ the ‘most Gra- (2) is, wheth how severe the crime issue suspect posed whether the ham factor is posed an immediate threat suspect er the “ safety ‘immediate threat to the others, the officers or ” v. Hem- officers or others.’ Smith (3) suspect actively resist whether the (9th Cir.2005) (en et, 394 F.3d attempting to evade arrest ing arrest or banc) Gates, (quoting Chew v. 27 F.3d Rutherford, flight. Deorle (9th Cir.1994)). (9th Cir.2001). explained 1279-80 As we that when we consider whether factors, Deorle how previously explained, “[t]hese threat, Rather, “simple an immediate ever, there was we exam are not exclusive. by an officer that he fears for and statement totality ine the of the circumstances may safety or the of others is specific ‘whatever factors be his consider violation, Rialto, 1069, (9th 621 F.3d 1071 Cir. alleged plaintiff the constitutional 2010) (same) granted, - U.S. -, cert. 132 qualified immu was entitled to the defendant 70, (2011); v. clearly 180 L.Ed.2d 939 Stoot nity was not estab S.Ct. because the law Everett, 910, conduct); 582 F.3d 921-22 Costanich lished at the time denied, U.S. -, Servs., Cir.2009) (same), cert. - Dep't Soc. & Health v. 2343, (2010). (same); 1101, (9th Cir.2010) L.Ed.2d 577 Delia v. 130 S.Ct. 176 1110 442 objective careful, however,

enough; apply there must be factors We are “clearly a concern.” 272 F.3d at 1281. justify way such established” rule in such a “ faithfully guards that protect ‘the need to step qualified in the For the second required officials who are to exercise their immunity analysis the constitu —whether discretion and public the related interest clearly right tional established encouraging vigorous exercise of conduct—we ask whether its time of the ” Harlow, authority.’ official “ 457 U.S. at ‘sufficiently clear’ that contours were ev 807, (quoting 102 S.Ct. 2727 v. Butz Econo- ery official would have under ‘reasonable mou, 478, 506, 2894, 438 U.S. 98 S.Ct. 57 doing that is that stood what he violates (1978)). ” L.Ed.2d 895 We must also allow — al-Kidd, —, right.’ U.S. Ashcroft “for fact that officers are often 2074, 2083, 131 179 1149 S.Ct. L.Ed.2d split-second judgments forced make —in (2011) (quoting v. Creighton, Anderson 483 tense, uncertain, circumstances that are 635, 640, 3034, U.S. 97 S.Ct. L.Ed.2d rapidly evolving amount —about (1987)). require do not “[w]e While necessary particular in a situ- directly case ... point, existing prece Graham, 396-97, ation.” 490 U.S. at placed statutory dent must have S.Ct. 1865. question beyond constitutional debate.” Id. Finally, general Graham’s excessive Supreme

The Court has alone, made “clear force standard cannot always, pro that officials can still be on notice that every vide fair notice to reasonable law their conduct violates established law even enforcement officer his or her conduct in novel factual circumstances.” Hope v. is unconstitutional. See Brosseau v. Hau Pelzer, 730, 741, 2508, 194, gen, 198-99, 596, U.S. S.Ct. 543 U.S. 125 S.Ct. (2002). (2004) curiam) (ex 153 L.Ed.2d 666 particu- We are (per 160 L.Ed.2d 583 larly principle mindful of this plaining the con- that Graham and Tennessee v. cases, Garner, 1, text of Fourth Amendment where 471 U.S. 105 S.Ct. (1985), constitutional standard —reasonable- L.Ed.2d 1 high “are cast at a level always very fact-specific ness—is inqui- generality” cannot, every case, ry. decision”). If immunity provided a “offer a basis for Supreme The circumstances, shield all novel factual stated, however, Court has “in ever, rarely, case, officials would if be held ac- obvious these ‘clearly standards can countable for their answer, unreasonable violations establish’ the body even without a Deorle, of the Fourth Amendment. See of relevant case law.” Id. at 125 S.Ct. (“Otherwise, F.3d at 1286 (citing Hope, officers 596 536 U.S. at 122 S.Ct. 2508). would escape responsibility for the most Although this “obvious ease” ex egregious forms of simply law, conduct because ception good remains Supreme there was no case on all prohibiting fours recently Court clarified that the bar for particular manifestation of finding unconstitu- such quite high. obviousness is conduct.”). al-Kidd, tional That result would not emphasized Court that it has properly balance the competing goals “repeatedly told courts not to define clear public “hold ly officials accountable when established law at a high gener level of power exercise irresponsibly ality. general and the proposition, for exam harassment, need to shield ple, officials from that an unreasonable search or seizure distraction, liability they per- violates Fourth Amendment is of little Pearson, form reasonably.” their duties help in determining whether the violative S.Ct. 815. particular nature of clearly conduct is es- (citations Bryan, In painful.” we held tasers 131 S.Ct. at tablished.” mind, omitted). in an in used dart-mode “constitute interme- principles these With diate, significant level of force.” Id. at the cases before us. we turn to 826. City of A. Brooks v. Seattle Here, the record is not sufficient for us Excessive 1. Officers Defendant Used what of force is to determine level used Against Force Brooks a taser in deployed drive-stun follow Supreme mode. We the Court’s nature begin by considering the We Scott, however, in guidance and need not against of the force used quality in this issue order to assess decide a taser in mode. We Brooks: drive-stun tasing. of the See 550 reasonableness U.S. in the force previously described (“Whether 383, 127 S.Ct. 1769 or not [a in deployed a taser is dart- volved when application actions constituted defendant’s] In Bryan, 630 F.3d 805. mode. See force,’ all ‘deadly that matters is wheth Bryan, explained that in dart-mode we defendant’s] actions were reason [the er taser able.”). Instead, we proceed determine a nitrogen propel compressed uses against Jones’s use of the taser whether tipped darts pair “probes” —aluminum reasonable, keep in this case Brooks connected to with stainless steel barbs in ing magnitude mind the of the electric by insulated wires—toward [taser] pain shock at issue and the extreme per at a rate over 160 feet target experienced. Brooks Brown v. See Upon person, striking second. 491, Valley, 574 F.3d Cir. Golden volt, ampere a 1200 delivers low [taser] 2009) that a (noting who was woman tased ... im- charge The electrical electrical mode experienced drive-stun “extreme instantly the victim’s pulse overrides and “felt a pain” sharp pain where the system, paralyzing the central nervous arm, pain radiating Taser met her with the throughout body, rendering muscles upper causing arm her mus target limp helpless. clench”). cles to (footnote omitted). Id. at 824 mode, opera- evaluating taser is used drivestun In the reasonableness of action, pushes governmen- tor dart cartridge removes the Jones’s consider (1) begin two contacts located on the front tal interests at stake and electrode (2) was, directly against the victim. severe the crime at issue the taser how mode, suspect posed the taser an electric whether the an immediate delivers victim, but cause or oth- shock to the it does not threat of the officers (3) ers, suspect nervous whether the was ac- override victim’s central system tively resisting attempting it Each of does dart-mode. arrest Deorle, by flight.4 the three times that Jones tased Brooks evade arrest mode, “extremely at 1279-80. drive-stun shock was prob- argues that the lacked the answer does not affect because Brooks's Amendment cause to arrest and therefore Fourth excessive force claim. able Moore, Virginia not use amount of force See 553 U.S. could (2008) ("We The district addressed this S.Ct. 170 L.Ed.2d 559 con- her. court concluding wrong argument, as a clude that warrantless arrests for crimes com- that "she is presence arresting whether in the of an officer of law.” need not decide mitted matter Constitution, probable had to effect are reasonable under the the officers cause Washington regulate pursuant law that while States are free to such arrest custodial 444 by

According alleged to the facts as We next consider whether Brooks “posed an immediate safety threat to the Brooks, pulled officers her over for Deorle, of the officers or others.” speeding and then detained and took her (internal F.3d at quotation marks custody sign into because she refused to omitted). When the began, encounter sign traffic citation. She refused to compliant: pulled Brooks was she over gave citation after she Ornelas her driver’s signaled so, gave to do her driver’s spent license and he five minutes his asked, license Ornelas when and waited license, squad presumably car with the in her car while Ornelas checked her infor- checking the status of her license. We mation. When Ornelas returned in- appreciate danger associated with formed Brooks that he going to cite speeding, and we do not minimize par- violation, speeding her for the she became importance observing ticular school zone upset proceeded increasing- become speed recognize limits. We also the im- ly agitated uncooperative inci- as the portance of having people sign their traffic dent evolved. At no time did Brooks ver- required citations when do so state bally threaten gave the officers. She no However, and, difficulty being law. we have no indication of decid- armed behind the car, wheel of her she physically was not ing failing sign a traffic citation and most, threatening. At may the officers driving 32 miles per hour a 20-mile- uncooperative have found her agi- and her per-hour zone are not serious offenses. tated behavior to be potentially threaten- Indeed, our case law demonstrates that far ing while keys Brooks’s remained in the more serious offenses than Brooks’s do not ignition theory, of her car. In she could constitute severe crimes anal- Graham have attempted away rapidly to drive ysis. City Vegas, See Davis Las recklessly, threatening by- (9th Cir.2007) (noting standers or the officers. But at some trespassing and obstructing officer point after grabbed Ornelas Brooks’s arm crimes); Hemet, were not severe and before applied her, Jones the taser to (concluding F.3d at 702 that suspect Ornelas keys removed the from Brooks’s was not “particularly dangerous” and his car ignition keys dropped and the offense was not “especially egregious” Thus, car’s floor. ap- the time Jones where his wife had report “called plied Brooks, the taser to she longer no that her husband ‘was hitting her and/or posed potential even a threat to the offi- her,’ physical that he had [and] safety, cers’ or others’ much less an “im- hard”). grabbed very Deorle, breast mediate threat.”5 272 F.3d at desire, it, arrests however state "might’ve restrictions up been able to reach start do not protec- alter the Fourth Amendment's away,” car and "might drive and she also addition, tions.”). explained we have spare key.” have had a Kozinski Concur- "establishing probable a lack of cause to rence at 458. There is no evidence in the make an arrest does not establish an excessive attempted record that Brooks to reach claim, and vice-versa.” Beier v. keys after Officer Ornelas removed them from Lewiston, (9th Cir.2004) 354 F.3d ignition. Nor is there evidence in the (citing Arpin Valley v. Santa Transp. Clara record that purse she reached for her Agency, Cir.2001)). 921-22 glove-box, potentially spare key. to look for a Moreover, preg- Brooks was seven months ("Kozinski In his Concurrence and Dissent likely nant and Concurrence”), therefore not able to reach Judge Chief Kozinski claims past steering down keys wheel of her car to the lay when Brooks’s car on the floor car, posed of her she a threat to the floor under her driver's seat in order to re- bystanders and to innocent keys. because viewing trieve the Rather than the evi- “ Finally, totality ‘most we must examine the reiterate that this is the of 1280. We “ ” the circumstances and consider ‘whatever govern- single element’ of the important may in specific appropriate factors be Hemet, interests at stake. mental case, listed particular whether or not Chew, (quoting 27 F.3d 394 F.3d at ” Bryan, (quot- 630 F.3d at 826 Graham.’ 1441). Franklin, 876). ing 31 F.3d at We note factor governmental interest The third Brooks responsibility bears some Brooks was test is whether the Graham incident, which the escalation this influ- resisting attempting arrest to “actively totality ences the of these circumstances. by flight, any other exi- evade arrest however, are, specific There two other fac- that existed at the time gent circumstances in this case find overwhelm- tors that we Deorle, at 1280 arrest.” 272 F.3d First, Jones, ingly salient. Brooks told omitted). (internal her, quotation marks pregnant he tased that she was before to out of her car when less than 60 days Brooks refused from due date. above, explained And as Jones and requested to do so and stiffened her Ornelas later they paused after learned she was preg- body steering and clutched her wheel they nant and discussed where should tase remove her frustrate the officers’efforts to light Brooks this information. The words, from In other she resisted her car. unambiguously reflects that the record of- Chew, (fleeing at 1442 arrest. See ficers knew about and considered Brooks’s constitutes re- hiding from pregnancy tasing before her. context). in the Graham sisting arrest observe, however, that Brooks’s resistance The overwhelmingly second salient fac- any violent actions towards did not involve here is that Brooks tor Jones tased three addition, In did not the officers. Brooks over the less than times course of one flee, Twenty-seven no other minute. seconds attempt there were after cycled warning, his taser as a Jones he exigent circumstances at the time. Thirty-six the taser applied to Brooks. proceeded facts reflect officers later, he seconds tased Brooks for the thoughtfully, taking deliberately that, time. Six after second seconds Jones aside in the midst of incident to discuss tased Brooks for the third time. Each they where should tase Brooks after time, in pain. Brooks cried out Three no pregnant. she was There is found out tasings rapid provided such succession allegation exigent that an re- circumstance for Brooks no time to recover the attention of one of the three quiring pain experienced, gather extreme she her- else, officers existed somewhere so that the self, reconsider to comply. her refusal resolved encounter with had to be Still, quickly possible. sum, as as Brooks en- Brooks’s alleged offenses were gaged pose in some resistance to arrest. minor. She did not an immediate Brooks, light in the most an immediate threat who had to be neutral- dence favorable flips summary judg by repeated Judge tasings, he does more Chief Kozinski ized than taking ignore proper summary judgment on its the evi stan-

ment standard head light engages speculation, imag- in the most to the defen dard. He in rank dence favorable however, required, ining possibilities spare key We are to take the dants. —like —that alleged. light most to Brooks at have not even Because there facts in the favorable Saucier, sought stage. simply no S.Ct. at evidence that Brooks flee, 2151; proper- Orange, Blankenhorn v. drive off or otherwise we cannot S.Ct. (9th Cir.2007). ly point possibility evidence that to this anyone. Judge posed an immediate Chief Kozinski asserts that Brooks threat threat to the officers or oth- midnight, around people got three out of actively ers. resisted arrest She insofar as the car and immediately started yelling at get officer, she refused to out of her car when the and one passenger took a officer).7 body instructed to do so and stiffened her threatening step towards the steering and clutched her wheel to frus- 2. Defendant Officers Did Not Vio-

trate the officers’ efforts to remove her Clearly late Established Law from her car. Brooks did not evade arrest They Tased Brooks by flight, other exigent and no circum- stances existed at time. She was sev- Having determined that Brooks al en pregnant, months which the officers leged violation, a Fourth Amendment knew, they tased her three times with- next consider whether the officers are minute, in less than inflicting one extreme nonetheless entitled to immunity. pain on Brooks. is, That the time the officers tased Brooks, was the constitutional violation de conclude, A reasonable fact-finder could “ ‘sufficiently scribed above clear’ that ev taking light the evidence in the most favor- ery ‘reasonable official would have under Brooks, able to that the officers’ use of stood that what he doing [was] violate[d] force was unreasonable and therefore con- ” al-Kidd, right[?]’ 131 S.Ct. at 2083 stitutionally Compare excessive.6 Bryan, Anderson, (quoting 483 U.S. at 107 630 (holding F.3d at 832 plaintiff that the 3034). S.Ct. alleged a constitutional violation where he was tased in dart mode though even he begin our inquiry into whether this risk, “was a flight neither a dangerous constitutional violation was clearly estab- felon, threat”), nor an immediate Par- lished looking at analogous the most Gerrish, (1st Cir.2008) ker v. 547 F.3d 1 case law that existed when the officers (upholding jury a verdict for excessive tased Brooks in November 2004. At that force used stopped time, driver there were three relevant opinions speeding who admitted to drinking, ex- from several of our sister circuits. In changed officer, hostile with words an Cincinnati, v. City Russo 953 F.2d initially tased), (6th resisted being arrest before Cir.1992), 1044-45 the Sixth Circuit Villa, City Cook v. Bella 582 F.3d held that the defendant officers did not (8th Cir.2009) (finding no excessive violate the Fourth they Amendment when where lone officer pas- tased the tased Thomas Bubenhofer. Bubenhofer’s senger of a car pulled after he car family over help called the them re- arriving 6. In al a different approach, conclusion about which contrary would be tasing in Broolcs—and in Mottos—than we firmly analysis. established Graham do, Judge expresses Chief Kozinski vivid dis- approval of Brooks’s behavior. His “cove- Cincinnati, In Russo v. F.2d cooperation'' manners, nant may good be (6th Cir.1992); Hinton v. El but we do not view driving it as the Graham wood, (10th Cir.1993); analysis. Though excessive force failure to (11th Draper Reynolds, 369 F.3d 1270 Cir. cooperate consideration, may be a relevant it 2004), our sister respec circuits held that the primary is not the factor that we are directed tasings tive clearly did not violate established to consider. We must consider all of the IV.A.2., infra, law. As discussed Part surrounding alleged circumstances use of plainly distinguishable facts those cases are adopt excessive force. Were we to Chief Judge approach, just Kozinski's from the facts in about Brooks. We therefore do not breach of the cooperation’’ “covenant of holdings find respect their instructive with would foreclose a Fourth Amendment exces- prong the first of the Saucier test. sive force adopt claim. We decline to such an institute; Elwood, v. City him to a Hinton psychiatric turn Cir.1993), the Tenth Circuit call heard responded who also held the defendant officers did “was police radio Bubenhofer over the not violate the Fourth Amendment when walk-away psychiatric insti- [the plaintiff. tased the The court ex- ‘suicidal, homicidal, and a who tute] ” plained “[u]ndeniably, two first police.’ Id. 1039. When hazard weigh criteria Hin- [Graham ] favor of tried to Bubenhofer defendant officers claim that officers’] ton’s use of force [the apartment, “threat- of his Bubenhofer out constitutionally excessive.” Id. at 781. anyone apart- to kill who entered the ened initially “The crime for which Hinton was the stood opened ment” and then door and by the was the stopped police misdemean- “a doorway, holding in the knife each Furthermore, disturbing peace. the pointed the at the offi- hand with blades to it is difficult maintain that Hinton con- at Bu- Id. 1040. second time cers.” any type stituted of immediate threat to door, opened again displaying the benhofer public.” Only or the Id. the officers, of the the knives toward the one weighed against third Graham factor Hin- Bu- officers tased him several times. Id. ton’s excessive force claim. Id. Hin- After effects overcame the of the taser benhofer request speak ton declined officers’ to officers, rushed still hold- toward him, to “Hinton shoved [an officer] out at 1040. The hostili- ing the knives. Id. way.” Id. An his at 776. officer then Bu- ties continued and officers tased arrest, informed Hinton that he was under again lay time he at the benhofer —this point at “Hinton strug- which continued to stairwell, of a at which “point [he] bottom feet, with gle kicking [the officers] his no immediate threat the officers.” posed arms, flailing biting his the offi- that, at 1045. The Circuit held Id. Sixth cers____” Id. at 777. The Tenth Circuit taser, “plaintiffs the initial of the as to uses that failed held “Hinton has to demon- clearly that have failed show established that [the officers’] strate conduct amount- law at the time of the incident declared a violation law.” ed to Id. at 782. actions unconstitutional.” Id. at such while Again, Hinton is relevant to our subsequent tasings, 1044. As for the inquiry into whether the vio- constitutional held that not court it conclude “[could] clearly lation Brooks suffered was a show excessive constituted established, the facts in that are dis- case at force.” Id. 1045. to the facts in In the similar Brooks. fact-spe- of a Fourth context Amendment Although is relevant to our clear- Russo inquiry, cific reasonableness we see little it involves ly inquiry established because similarity suspect between a determinative taser, of a note that the facts in the use we shoved, kicked, who and bit law enforce- readily distinguishable are from the Russo officers, suspect ment and a who stiffened Brooks, facts in Brooks. unlike Bubenhof- body steering clutched her wheel er, paranoid schizophrenic, at was not id. attempts to frustrate officers’ to remove not homicidal suicidal did make her from car. id. at did not police, threats a knife in hand with the blades hold each Reynolds, Draper 369 F.3d 1270 id., officers, at the and did not pointed Cir.2004), is the third taser that was case being multi- the effects of tased overcome Brooks was In decided before tased. ple approach Draper, p.m., pulled times at 11:30 a lone officer hand, plaintiff, driving at who was a trac- knives still id. 1040-41. over added) (citation omitted). truck, tag light was (emphasis tor trailer “because its Moreover, under Geor- appropriately illuminated the violation was not so obvious ensuing at 1272. gia During Id. law.” can “define clearly we established law in a stop, plaintiff “acted con- traffic at level of high generality,” finding manner, agitated paced frontational alone renders the Graham unconstitution- forth, yelled repeatedly back and ality Brooks’s tasing clearly established. Id. at 1276-77. When the [the officer].” Id. comply failed to with the officer’s plaintiff therefore follow example our documents, request produce fifth certain three-judge panel Bryan court’s v. Mac- tased him. 1273. The the officer Id. at (9th Cir.2010). Pherson, 630 F.3d 805 Eleventh Circuit held that the “use of the Bryan, held that the use of a taser gun taser to effectuate the arrest of [the force, constituted excessive we con- but plaintiff] reasonably proportionate cluded that the defendant was enti- officer difficult, the tense and uncertain situation qualified immunity. tled to in tasing The that defendant faced in this [the officer] place 2005, in Bryan took and we observed stop, traffic and did not exces- constitute year that in Supreme that “there was no presents force.” Id. at Draper sive Court or decision decision of our court Brooks, analogous the most facts to but we addressing” the use of a in taser dart significant still see Unlike differences. the result, mode. Id. 833. As a we con- in plaintiff Draper, Brooks was immobile cluded that “a reasonable officer in Officer in car in daylight and the out- position MacPherson’s could made a have numbered her three to one reasonable mistake of regarding law the her.

tased constitutionality of in the taser the use sum, when the defendant officers circumstances” confronted. Id. Brooks, tased there were three circuit Thus, that, we conclude although Brooks appeals rejecting courts cases claims claim, alleged has an excessive force the that the use of a taser constituted exces- force; sufficiently law was not clear at the time of sive there were no circuit taser the incident to render finding alleged cases a Fourth violation Amendment viola- Russo, Hinton, clearly tion. established. Draper Accordingly, and are fac- de- tually distinguishable fendant officers are entitled from Brooks. In- to the defense we qualified immunity deed have against concluded that —unlike the Brooks’s § plaintiffs in those cases—Brooks has al- 1983 excessive force claim.8 leged Fourth Amendment violation. We conclude, however, Agaraño v. light

cannot in of these B. Mattos existing precedents, “every ‘reason- 1. Defendant Officers Used Excessive able official would have understood’ ... Against ” Force Mattos beyond debate tasing Determining these circumstances constituted excessive whether the force al-Kidd, force. (quoting against Jayzel S.Ct. at 2083 used Mattos constitu was Anderson, 3034) excessive, 483 U.S. at 107 S.Ct. tionally begin we con- again Brown, 8. Because we jury conclude that a See reasonable Staats 139 Wash.2d find could (2000) ("Nor officers used excessive quali- 627-28 P.2d is state Brooks, tasing force we affirm the district immunity fied available for of assault claims court’s conclusion that the are battery arising out of the use of excessive Washington entitled to state immu- arrest.”). force effectuate an nity battery for Brooks’s assault and claims. Aikala, Troy ing attempt- between quality sidering the nature Here, prevent employed pressing up taser was ed to Aikala used. dart-mode, may held “eonsti- against which we have her breasts. While this intermediate, level of significant momentarily an deterred Aikala’s immediate tute[s] The ta- Bryan, 630 F.3d at 826. force.” it rise Troy, access to did not to the level penetrated Jayzel’s Graham, ser’s aluminum darts Thus, obstruction. under dart-mode delivered the intended skin and crime, severity any, if minimal. was response: impulse instant- “[t]he electrical next, important, and most Graham central nervous ly the victim’s overrides suspect posed factor is whether “the system, paralyzing throughout the muscles threat of the offi- immediate target limp body, rendering Deorle, cers others.” an in- helpless.” Jayzel Id. at 824. “felt omitted) (em- (internal marks quotation burning painful feeling lock- credible added). Here, Jayzel phasis “sus- ing joints muscles [and] all [her] used, pect” whom force so we It is against the floor.” hard on [she] f[e]ll posed consider whether she an immediate backdrop the govern- consider safety. threat the officers’ The officers the ultimate interests at stake and mental response to a 911 came the residence of the officers’ action. reasonableness Jayzel’s request during a call made at in- Considering governmental the first Troy. with Once the offi- dispute domestic factor, at severity of the crime terest the Jayzel, were cers arrived and saw there no issue, we con- are mindful that must we objective reasons to believe that she was light in the most favorable the facts strue armed, verbally did not threaten the she KRL, stage. at 512 F.3d Jayzel to See officers, with only physical and her contact Jayzel appeared in the at 1188-89. When defensively Aikala resulted from her rais- Agarano speak Jayzel to hallway, asked to prevent press- her to him from ing hands outside; could agreed, she but before she against hers he came ing body his after Aikala entered the residence. comply, Jayzel’s main into contact with her. con- Troy Aikala that was announced the of re- tribution to scene consisted arrest, already standing Jayzel was under and entreating the officers her peatedly immediately not Troy. in front of She did go and outside so husband to calm down way. Aikala in out of the As moved move her would be sleeping that children Troy, up against Jay- pushed to arrest he no Jayzel posed threat the awakened. chest, point at which she “extended zel’s officers. being stop arm to breasts from [her] [her] governmental in- The third enumerated body.” Aikala against Aikala’s smashed Jayzel actively terest factor is whether was an Jayzel, you touching then “Are asked resisting attempting arrest evade time, Jayzel At same officer?” the Deorle, by flight. F.3d arrest why Troy was speaking Agarano, asking Jayzel’s rendition of the According to arrested, the attempting to defuse being facts, the that can be is that she most said everyone should saying situation minimally Troy’s resisted arrest. She was outside, and go expressing calm down and Troy standing between Aikala might commotion disturb concern the before in to Troy, Aikala arrest her moved in resi- children who were the sleeping her defensive, with Aikala was physical contact light the evidence the Taking dence. body her own protect intended to Jayzel, resolving all favorable to most said, That being Aikala. favor, contact with in her most that can be conflicts the that, Troy was under Aikala stated that while stand- when said about actions (9th Cir.2007) (internal arrest, immediately move F.3d Jayzel did not omitted). the For way quotation out of to facilitate arrest. marks the factor, how- purposes the of this Graham very seriously danger takeWe ever, between a fail- we draw distinction disputes pose domestic to law enforcement ure to resis- facilitate arrest active officers, and we have no concluding trouble Moreover, the crux of this tance to arrest. that a arriving reasonable officer at the offi- compliance Graham factor is with the reasonably Mattoses’ residence could be Here, comply. cers’ or refusal to requests, safety. concerned about his or her Jayzel attempting comply with concerns, of such light recognized we have Agarano’s request to out- speak exigencies that “the of domestic abuse got physically caught side when present dangers may cases ... over- Troy. Aikala and middle between Accord- of privacy” ride considerations where the ingly, weighs Jayzel’s this factor favor. Fourth Amendment alleged violation was a entry warrantless into a residence Finally, it is important this case that “ purpose intervening in a domestic dis- ‘specific consider additional fac- ” pute, victim, protecting potential totality tors’ relevant to these cir- gaining control over volatile situation Bryan, cumstances. 630 F.3d at 826 Id.; that could endanger the officers. see Franklin, 876). (quoting 31 F.3d at While Martinez, 1165; United States Jayzel pose any herself did not threat Brooks, 1133-34 safety, the officers’ we must also consider Cir.2004). Here, though, alleged that the danger overall situation posed Fourth Amendment violation is the exces- to the officers’ what effect that sive use of potential non- has on the reasonableness the officers’ threatening dispute victim the domestic recounted, As we actions. offi- whom the ostensibly pro- officers came to cers came to the Mattoses’ in residence previous tect. Our reasoning providing response to a 911 dispute domestic call. Fourth leeway some Amendment to offi- When they they Troy, arrived encountered who a cers must enter residence without a sitting by who was himself outside warrant in response disputes to domestic hostile, residence, intoxicated, seemingly not logically does extend to officers who six approximately feet three inches tall and use an level intermediate of force on the pounds. We have observed that “[t]he non-threatening victim of a domestic dis- volatility involving situations domestic pute they whom protect— come to particularly violence” makes them danger- especially when the dispute domestic is Martinez, ous. United States v. seemingly by over the time the officers (9th Cir.2005). 1160, 1164 “When officers begin investigation. their respond a call, to domestic abuse that may lurking distinction, understand violence drawing be guid- this we are Indeed,- and explode with warning. little ed by Supreme Court’s reasoning in more are injured There, killed or do- Scott. Court observed that in mestic violence any calls than on other weighing governmental the Graham inter- (internal type of call.” Id. quotation a ests in situation where is likely someone omitted). marks and citation We have also to a suspect hurt —either fleeing or “recognized that the exigencies bystanders of domestic innocent is in “appropriate —it present dangers that, abuse cases in an process to take into ... account rela- case, appropriate may Scott, override culpability.” consider- tive U.S. Black, ations of privacy.” United States v. 1769. the procedural pos- S.Ct. Given summarize, To Aikala used the interme- we stage proceedings, at this ture in this of a taser in dart-mode on Jayzel culpable was diate force that say cannot Jayzel Jayzel that he officers ar- understand after other situation. way in Aikala unintentionally safety. when Her offense rived to ensure her potential- over a gain control no attempted posed to She threat was minimal most. arresting Troy, by situation ly dangerous minimally resisted to the officers. She “police officers are we appreciate protect Troy’s attempting arrest while judg- split-second to make forced often body comply Agara- and to own amount of force that ments ... about the outside, him speak no’s that she request in situation.” necessary particular a is begged everyone not to wake her and she Graham, 396-97, 109 U.S. at S.Ct. minimal cul- sleeping children. She bears time, we are unable to At the same pability for the escalation of the situation. in the conclu- identify any reasonableness potentially faced with a officers were split-second in a made sion—whether dangerous dispute situation in domestic tasing the deliberation —that after careful Troy they reasonably felt that could which drunk, angry a man large, innocent wife to, if chose but physically harm them he spouse no threat that either there is Troy no indication that intended there was way is a to defuse weapon, prudent has a the officers or that he armed. harm dangerous situa- yet, but not potentially, difficulty slight When Aikala encountered Deorle, (“A F.3d at 1281 tion. See arresting Troy Jayzel in because was be- potentially dan- quickly desire resolve men, with- tween the two Aikala tased her type govern- is situation gerous totality warning. Considering out alone, justi- that, standing mental interest circumstances, we fail to these see may cause serious fies use in the use of a taser reasonableness this unreason- injury.”). We stress against Jayzel. all the dart-mode compounded the officers’ ableness is disputes factual are resolved material pres- children that there were knowledge Jayzel’s favor and the evidence viewed at the time. ent the home her, light most favorable alleged has Fourth conclude gave that Aikala no Finally, the fact is, a That reason- Amendment violation. pushes her warning Jayzel tasing before the able fact could conclude that finder beyond pale. use force far the of Jayzel, use of as against officers’ force previously concluded that an officer’s alleged, constitutionally was excessive warn, plausible it is do failure to of Fourth Amendment. See violation the so, weighs finding in favor of a constitu Brown, (denying qualified 491 F.3d Bryan, See 630 at tional violation. who the immunity passen- officers tased 831; County, 374 F.3d Boyd v. Benton ini- ger-wife of driver who evaded their (9th Cir.2004); Deorle, 773, F.3d attempts him over when the pull tial 1284; Casey City v. Federal see also up hang wife the 911 call she refused to Heights, 509 Cir. pulled husband made after 2007) qualified immunity for the (denying car, car, him out threw the “absence of use of a taser where him); 630 F.3d at Bryan, and handcuffed making that no warning of facts clear —or plaintiff alleged a (holding warning necessary cir —makes where he was tased constitutional violation trou especially of this case cumstances though mode he “was neither dart even bling”). risk, a flight dangerous felon, nor yond debate —that such conduct violates threat”)-9 immediate the Fourth Amendment. Accordingly, we reverse the district courts’ denial sum- 2. Defendant Officers Did Not Vio- mary judgment on qualified immunity Clearly late Established Law grounds on § Plaintiffs’ 1983 excessive They Tased Mattos Brooks, force claims. In however, we af- We next turn to whether the offi firm the district court’s denial of qualified cers are entitled immunity for immunity on Brooks’s state law assault the force they against Jayzel used in Au battery claims. gust Here, above, we must deter No. 08-15567 REVERSED. mine whether the constitutional violation “ No. 08-35526 part REVERSED in ‘sufficiently clear’ that every ‘reason part. AFFIRMED in able official would have understood that ” what doing he[was] right.’ violate[d] al-Kidd, SCHROEDER, 131 S.Ct. at 2083 (quoting Judge, Circuit Anderson, 3034). concurring: U.S. 107 S.Ct. As in v. City Seattle and I agree the absence of cases Bryan MacPherson, v. we conclude that recognizing any specific use weap taser the alleged constitutional violation in Mat- ons force, as excessive the defendants are tos was not clearly established when the entitled to qualified immunity under conduct At time, occurred. “there was Supreme Court’s teaching in Ashcroft

no Supreme Court decision — decision of al-Kidd, —, U.S. 131 S.Ct. our addressing” court the use of a taser in 2084, (2011). 179 L.Ed.2d 1149 I also dart mode. Bryan, 630 F.3d at 833. In agree wholeheartedly with the majority addition, as explained above, we none of opinion by Judge Paez that the use of such the three existing federal court appeals the cases before us was excessive. cases dealing with tasers found a constitu- I write separately only to emphasize the tional violation. Even though the facts in non-threatening nature plaintiffs’ readily Mattos are distinguishable from conduct. women, Both were with children Russo, Hinton, facts in and Draper, nearby, who were tased after engaging in the violation was not so obvious no threatening conduct. Mattos, In a do- can rely on the Graham factors and define mestic violence victim wanted the officers the contours of clearly established law at a outside home so they would not awak- high level of generality. al-Kidd, See en her Brooks, children. S.Ct. at 2084. Accordingly, we conclude stopped pregnant plaintiff for speeding that the officers here are entitled to quali- in front of her child’s school—when she fied immunity tasing Jayzel. refused to sign the traffic ticket and exit vehicle, the police the tased her.

V. Her Conclusion may behavior be understand, difficult to For the reasons, foregoing we conclude but it certainly posed no immediate threat that Brooks and the Mattoses have alleged to the officers. constitutional violations, but that every not reasonable officer the time of the re- It is the threatening nature of plain- the spective incidents would have known—be- justified tiffs’ conduct that the use of the Russo, Again, Hinton, Draper are so find not them useful for prong the first factually dissimilar from Mattos that we do Saucier test.

453 Act, Against Women Kozinski could Violence Judge the eases taser in codified et 3796gg, seq. §§ 13925 369 F.3d 42 U.S.C. Draper Reynolds, v. rely upon. Cir.2004); (11th City v. Hinton 1270 of argue painful, that the of could use One (10th Cir.1993); Elwood, 774 997 F.2d weaponry on non- scarring permanently 953 F.2d City v. Russo Cincinnati of individuals, try- who were not threatening Cir.1992). (6th evaluating use the have known to escape, to should been ing force, is al- consideration any prime of a police informed officer be excessive imme- ways suspect posed whether long standards of under the established of officers. threat diate has re- The Eleventh Circuit Graham. 396, Connor, 490 U.S. v. See Graham using cently police held (1989); 104 L.Ed.2d 109 S.Ct. immu- not entitled to taser were Hemet, 689, City F.3d Smith v. of threat, escape, was immi- nity where no Cir.2005) banc). (9th (en Aventura, nent. Fils v. (11th Cir.2011). 1272, 1289, cases uphold- of circuit The relevant out Never- tasing theless, in tasings Supreme opinion all involved ing Court’s al- Draper was threatening appears described us to hold that require men. Kidd Hinton “belligerent” truck driver. was no established case law as a because there dog in “angry” town resident whose simi- recognizing was an taser use excessive circumstances, immunity required. who then threat- impounded, had been lar (“We al-Kidd, officer and kicked ened the animal control at 2084 re- 131 S.Ct. arresting actually bit officers. courts—and the Ninth Cir- peatedly told in barricaded himself deranged, particular clearly in define Russo cuit —not psychiatric leaving generali- after at a level of apartment high his established law (internal omitted). police came after the I facility, ty.”) and then citation there- sug- Judge opinion. knives. This is in good with butcher concur Paez’s fore but only threatening, can be gest that men KOZINSKI, joined by Judge Chief women were not. these BEA, part Judge concurring Moreover, con- Judge partial Kozinski’s dissenting part: serious misunder-

currence reflects some us, protect By asking police to serve of each woman’s situation. While standing agree comply with their citizens Kozinski focuses on fact Judge their cooperate in- baby healthy, focus instructions was born Brooks’ Unfortunately, vestigations. not all us had on whether the officers should be As a up bargain. end of the the risk of hold our properly taken into account result, ever-present officers face an risk the taser. See using harm to the child suddenly Madera, work will be- police that routine Torres decade, Cir.2011) (“[A] last more might dangerous. come jury ques- choosing half a million were assaulted to send than tion the reasonableness 160,000 1,200 duty. line of More than were electricity through person volts vast ma- injured, and 536 were killed—the per- is for that alleged when the concern omitted). (footnote routine law Judge jority performing while en- safety.”) son’s conducting traffic tasks like underlying assumption in Mot- forcement Kozinski’s distur- tos, responding and to domestic stops and con- gender-blind, that violence is Info. Servs. calls. Criminal Justice safety thus “chauvinis- bance cerns for women’s Div., Investigation, Law tic,” to Fed. Bureau of struggle overlooks the worldwide Assaulted, See, Killed & e.g., against women. combat violence Officers Enforcement (Oct.2010), http://www2.fbi.gov/ucr/ arresting deployed a and Taser (tables to were able defuse the situation without killed/2009/aboutleoka.html 70). anyone getting seriously hurt. can’t be sure the results would have as been breached the cove- Brooks and Mattos good police had the used other methods. by refusing comply to nant of cooperation that, police orders. citizens do proscribes only The Fourth Amendment bring the situation under con- police must unreasonable searches and Po- seizures. trol, a of number tools force, necessary lice need not use the least tools, such as disposal. their Traditional v. Hagemann, see Luchtel 623 F.3d holds, arm locks and other hand-to- choke (9th Cir.2010), but the officers did here in- techniques, permanent can cause hand Nevertheless, just that. majority finds jury, The ba- even death. standard issue unconstitutional, thereby their actions deadly weapon ton “is a that can cause safe, a employing deters officers from ef- deep bruising capa- as as well blood clots technique subduing uncoopera- fective deadly Young of precipitating ble strokes.” subjects. tive will police This cause to Cnty. Los Angeles, of resort to more dangerous methods in the (9th Cir.2011); see also id. at 1161-62 future. me Count out. either). fun (pepper spray is no These officers, methods are also to distasteful Brooks v. of Seattle deploy close-range who can such tactics Pulled over for in a speeding school only by way. in harm’s stepping zone, Brooks found herself in a situation The is a Taser safe alternative: It’s year, familiar Every to motorists. millions to range thirty-five effective at of fifteen people get of traffic tickets. No one likes feet, so officers can use it without engag- it, aside, but sign we set our resentment personal by ing study combat. And our citations and move on. Not Brooks. university departments emergency six of gave Officer Ornelas her a ticket in the percent medicine found that 99.7 of those course, normal but speed- Brooks denied by injuries or, Tased police suffer no ing sign. and refused to Ornelas assured most, mild ones. P. Bozeman et William Brooks that she guilt by wouldn’t admit al., Safety Injury Conducted of Profile signing, but she still Offi- refused. When Weapons Electrical Law Used Enforce- assist, stopped cer Jones he told Brooks Against Suspects, ment Criminal An- she was law required by sign and reiter- (2009). nals Emergency Med. guilt by doing ated she wouldn’t admit of Department research division the so. pointed writing Jones at the deployment Justice concluded that Taser ticket, bottom of the which read: “Without “has a margin great greater admitting having committed each of the alternatives,” than “sig- most and carries a offenses, by signing above I this document nificantly injury physical lower risk of than acknowledge receipt of this notice in- Laub, Director, force.” John H. Nat’l promise fraction to respond as direct- Inst, Justice, Study Following Deaths ed this notice.” Brooks called Jones (2011). Disruption Electro Muscular 30-31 liar and again speeding. denied Jones point: Cases Malaika reading gun, showed her the on the radar Jayzel actively Mattos. Brooks resisted but Brooks claimed it had car clocked the arrest; Mattos out refused to in front her. She remained defiant even way large, tried arrest her after Jones told her she’d be arrested if drunk, angry case, husband. In each she continued refuse. Tased, that, situation at the time Brooks was attempt to resolve the

In an arrest, Sergeant getting no longer a random motorist of an Jones called was short later, ticket; As Daman, five minutes traffic she was under arrest. who arrived himself Supreme recognized, Brooks and introduced has mak- approached the Court then, supervisor. By “necessarily other officers’ an arrest carries with it ing as the “irrational, screaming out right degree physical to Brooks the use some control,” another gave Daman her but or threat thereof to it.” coercion effect going Connor, ticket instead of sign chance to the 490 U.S. Graham jail. (1989). to S.Ct. L.Ed.2d When arrest, relationship their police effect an refused, Daman or- Brooks still way: in a changes with the citizen material to Ornelas and Jones arrest her. dered subject The citizen now to the officers’ car, to out of her get Ornelas told Brooks duty control and has a lawful to submit to to refused. In further effort avoid but she authority; their failure to do so is a crime. force, told Brooks he’d Tase using Jones conduct, her By own willful Brooks deliv- if leave the car. He her she wouldn’t power ered herself to the of the officers Taser, his told the darts from removed necessary force for them to com- pain cause if he Brooks the device would plete the arrest. it, cycled to it so required use were electric current. she could see and hear its my colleagues explain why Nor do out, didn’t so the officers tried pregnancy Brooks’s renders officers’ her, “wrapped her to but she arm extract actions less reasonable. Should the ... steering column around fingers officers have slammed Brooks’s body into the driver’s seat.” wedged her go her baton to make let of the steering Forcibly ripped column? her supposed do were officers to What seat, smashing from the her abdo- driver’s point? Brooks had shown herself steering men wheel? Doused reason, against physical to and moderate deaf pepper spray her with or some other nox- only had led to further entrench- chemical, ious which would be absorbed just ment. The officers couldn’t walk straight and go into her bloodstream More- away was under arrest. —Brooks options all seri- the fetus? Those involved over, erratically, and behaving Brooks was risk of harm to both Brooks and her ous The had keys her were the car. daughter. unborn Had officers tried somehow, physically control her lest she them, here, only still be Brooks would we’d engine and run up start manage to stronger have a case. long over. How was this stale- someone go Brooks was supposed mate on? Having already warned Brooks that he’d officers, up sergeant line tying two comply, if Tase her she wouldn’t Jones diverted three vehicles—resources lightest possible application tried the community deal from other functions—to device, pressing it her clothed lousy traffic ticket. with one thigh five continued seconds. Brooks resist, applied so Jones the Taser majority aspersions The casts what here, neck. condemning exposed their skin of arm and the officers did Tasing stopped as Brooks out as soon to Tase Brooks as unconstitution- decision car, But, obstinate to the hindsight but Brooks was al. even with the benefit end, it, being handcuffed my “resist[ing] of time to think about bitter plenty tense.” The officers keeping course of arms colleagues offer no alternative the situation without ignore significant fact nevertheless defused They action. being suffered causing by serious harm: Brooks called liars and otherwise abused scars, only daughter They minor her was born Brooks. praise, deserve our not the healthy opprobrium being Brooks’s counsel confirmed declared constitution- the child remains al argument oral violators. The of Seattle should healthy. grace award them commendations for un- fire. der results, utterly positive

Faced with these course, I agree, of with despite put majority Brooks’s stubborn effort to the officers are entitled to daughter herself and her unborn harm’s immu nity from majority Brooks’s excessive way, counting is reduced force claim. But, because I between believe the Tasings, finding the seconds officers’ actions reasonable, entirely “rapid provided were succession no time for I dissent from my colleagues’ deny Brooks to recover ... and decision to them im reconsider munity from comply.” Majority op. refusal to at 445. Brooks’s state law assault battery pucky! Although McKinney Bull claims. See claims v. Tukwila, 391, and “in shock” after ini 103 Wash.App. “scared” 13 P.3d 631, (2000) Tasing, began (“Having tial she also admits that she found ... yelling honking reasonable, the officers’ help for her car’s use of force was horn. into the of a we find that Stepping shoes reason are entitled to state law scene, must, qualified immunity able officer at the for the as see assault and bat claims.”). Graham, 396-97, tery 490 U.S. 109 S.Ct. 1865; Luchtel, 980, 623 F.3d at Brooks’s Agarano Mattos

actions weren’t those of someone dazed befuddled, unable to think about what I considerably but, find Mattos closer do They bespoke next. a deliberate for the reasons panel stated opinion, single decision to continue her defiance. A Agarano, Mattos v. 590 F.3d 1082 application having drive-stun already Cir.2010), I believe the that case proved insufficient inducement to Brooks’s constitutionally acted They well. en- compliance, objec the double dose was an tered the Mattoses’ home in response to a tively step reasonable next and was there domestic by Jayzel violence call initiated entirely fore constitutional. See Scott v. By arrived, herself. the time the officers Harris, 550 U.S. 381-82 & n. 127 Jayzel regretted seems to getting (2007). S.Ct. 167 L.Ed.2d However, police involved. police are just trained not to par- leave because the According majority, “Brooks ties to a dispute domestic ask them do bears responsibility some for the escala- They so. have to assess the situation and Majority tion this incident.” op. at 445 is, fact, everyone make sure OK. This added). (emphasis This suggests that the usually involves talking parties to both rest the blame is with the officers. separately, determining party whether the Wrong, wrong, wrong. Brooks is com- who entering called under duress pletely, wholly, 100 percent at fault. Had the home to check of children responsibly, she behaved she’d have driven or others inside. highly This is a intrusive away in a few minutes with no complica- procedure necessary but one made our Instead, tions. Brooks risked harm to litigation-minded culture. herself, daughter her unborn and three got officers because she around, dander It’s a difficult situation all up officers, over a traffic ticket. way the best it through every- is for part, their endlessly patient, were despite cooperate one to the police. Unfortu-

457 lurking explode may lence be and was combative nately, Jayzel’s husband officers, warning.” v. Jayzel to little United States Mar- came his and with the tinez, (9th Cir.2005) 1160, 1164 letting police of do instead defense (internal omitted). placed quotation marks Officer Aikala their work. When arrest, injured killed in Aikala’s officers are or Jayzel “[M]ore stood Troy under than on insisting and that domestic violence calls other questions way, asking (internal quotation type common of call.” Id. everyone simple outside. It’s go omitted). for that sense, Accounting to marks en- duty, as a civic stand as well risk, the here announce hanced officers’ actions were immediately police when aside objectively reasonable. making Jayzel an arrest. neither they’re nor fulfilled her common sense exhibited covenant of she breached the duty;

civic Judge Schroeder seems to be of view the offi- by interfering with cooperation Tasers, may presum and police use job. do cers’ efforts to their force, ably types only against other Troy, Aikala moved to handcuff subjects present a who threat of violence. way and allow Jayzel did out at 452-53. That has never Concurrence the arrest. In- complete the officer right been law. A citizen has no stead, ground, eventually she stood orders, police to follow reasonable refuse touching hands and Aikala’s raising her endlessly up police to tie resources or to back and asked if stepped chest. Aikala by standing with an arrest in the interfere officer, touching an but she Jayzel was way insisting police leave the Instead, him. she turned to didn’t answer The Supreme scene of the crime. Court him again urged Agarano and Officer right told that “the make arrest us That’s move the confrontation outside. right necessarily ... carries with it the her, Aikala and his fellow Tased physical or degree use some coercion Troy. officers handcuffed Graham, it.” threat thereof to effect 490 396,109 might given Judge U.S. 1865. Schroe hindsight, Aikala at S.Ct. instruction, theory evalu- der’s conflicts with this Jayzel warning, more but when a bit of an and also with Forrester v. San ating reasonableness officer’s use 804, Cir.1994), force, Diego, 25 F.3d for the fact that “‘allow[] upheld jury’s finding po forced to make where we police officers are often lice use force when judgments circumstances didn’t excessive split-second —in uncertain, tense, “forcibly [passive protesters] rapidly moved that are ” Luchtel, around their (quot- tightening [nonchakus] at evolving.’ Graham, 397, wrists,” pain lasting causing at serious 490 U.S. S.Ct. ing 1865). here, When, injuries. Judge Schroeder would also enter some- split have us with the Tenth Circuit’s deci body’s response to a domestic house Frazier, F.3d 1200 call, they sion in Mecham v. targets become fear violence (10th Cir.2007). There, during initial an officer told dis- anger generated her, “at leave her car he’d arrest quarters, the woman to They’re close pute. Displaying adver- but she refused. Id. disadvantage being on [their] ” here, Buie, patience far than 494 U.S. less sary’s Maryland ‘turf.’ policeman simply pepper- L.Ed.2d 276 Meeham 110 S.Ct. (1990). her from the car. sprayed pulled must maintain defensive Officers Id. Tenth held throughout investigation, op- The Circuit their posture Id. at 1205. assumption objectively that “vio- reasonable. erating under the surprised by I’m Judge majority also Schroeder’s claims Brooks couldn’t suggestion key that Brooks reach chauvinistic on the floor and no there’s special Mattos were entitled to treatment evidence had a spare. Majority op. women, were with 444 n. question because children 5. But the relevant “[b]oth isn’t nearby.” key I whether there was a within thought Concurrence Brooks’s reach; long past point special we were the where it’s whether a reasonable officer thought could pleading might of accept- on the basis sex was there be. Gra- ham, 396-97, can, argument. able form U.S. S.Ct. 1865. of Women of Many course, people keep spare keys in just uncooperative be as the car dan- And, for men, emergencies. although gerous I and would be most reluc- Brooks’s pregnancy might have it difficult tant a made for adopt constitutional rule that floor, her to the police reach the couldn’t police people differently must treat be- be sure was grasp. what within her The cause of sex. As the them for children precautions officers were entitled to take being nearby, an appeal that’s to the for safety their own and that of others. heartstrings that misses mark in the both Had they vigilant, been less might Brooks cases. Brooks’s son had left the car and well have driven off and run over one school; trundled off proximity his had in the children the school zone. The offi- nothing at all to do with Brooks’s bizarre entirely right cers were refusing in to take nothing behavior. And there is in the that risk. If the City awards a them record suggesting that Mattos’s children commendation, suggest should, as I it I way; were in I harm’s don’t see how their hope it carries a substantial cash bonus for presence any in the house bearing has on safeguarding the lives and of inno- the case. cent children. event, I disagree Judge with premise Schroeder’s that these were non- majority concurrence threatening In the situations. Mattoses’ wrong, law consequences with dire po- case, danger quite was obvious: It lice against officers and those whom came Troy Jayzel’s out-of-control, — they’re required My to use force. col- drunken husband. He needed to be sub- leagues cast doubt on an effective alterna- once, dued at lunge before he could at the tive to dangerous more police techniques, officers, grab weapon away. a or run By resulting and the uncertainty will lead to interfering, Jayzel wasted precious time— more, injuries. worse This mistake will be time Troy use could to attack the officers paid for in the blood police and lives of Jayzel herself. public. members of the Brooks sitting steel, a ton inside Today’s decision, though nominally a vic- angry, screaming and refusing obey po- tory officers, step for the is a backward lice orders. acting She was irrationally, terms of police public safety. One can and there no telling only what she’d do hope Supreme will a Court take next. The officers’ efforts to immobilize more enlightened view.

the car removing key were unsuc- SILVERMAN, Judge, Circuit cessful, key so remained the floor. CLIFTON, whom Judge, joins, Circuit might’ve Brooks it, been able to reach concurring part dissenting part: up start away. the car and drive For all knew, the officers might she Kozinski, also have Like Judge had Chief I concur in spare a key. judgment agree in Brooks. I with him settled danger, it was well poses pect was shown. violation no constitutional in this events the time August had conceded propor be ease, use force must that the car from the to remove right the threat. See gravity voluntarily. tional step out refused repeatedly Hemet, 394 F.3d per- Smith many ways only so are There (en Cir.2005) banc); v. Ruther Deorle (9th vehicle from a can extracted be son Cir.2001). 1272, 1279-80 ford, pretty. will, of them and none “it held that Indeed, Tenth has Circuit holds, gas, dogs, tear batons, Fists, choke Taser control to use a excessive own is carry their all spray and chemical to be having reason target without alike. and officers suspects to risks a force—or amount of a lesser that lieve on where someone of cases plenty see compli not exact command—could verbal techniques suffers these of end business Heights, Fed. Casey v. injuries ance.” to mention not injuries, of serious Cir.2007). Casey, 1278, 1286 in F.3d engage who officers by police sustained the district reversed Circuit in- Tenth recalcitrant with combat hand-to-hand immunity on of grant hu- case, was a court’s tasing In this dividuals. because officer’s judgment car, summary out her Brooks way to force mane immediately and without Taser “use of a virtually fleeting pain only causing her law as established warning” violated Because whatsoever. harm no other 25, id. 2003. excessive, August See there not employed was force violation. no constitutional was and Aikala’s story is credited If Mattos’s a disbelieved, dropped Aikala Officer Mattos, the district agree I with forAs gun BB would have a bomb of nuclear issues disputed are there that court tasing Aikala’s Officer Was whether, the law as sufficed. under fact on material to disproportionate a use of force 2006, Mattos conduct Mattos’s August it existed justi- conduct, her did behavior or by Mattos’s employed of force degree justified Ezra, district a meticulous Judge it? fy law Clearly established Aikala. Officer the record examined judge, painstakingly from the officers prohibited then extant that, facts because determined to and response using disproportionate did what Mattos dispute about of dis- were The existence provocation. a trivial necessary resolve to do, trial was not con- did Mattos’s whether about facts puted granted Ezra had Judge question. trial. requires is what trivial duct on qual- summary judgment case, in the Brooks with This contrasts respect all with immunity grounds ified facts showed the undisputed which however, claims; other Mattos’s forcibly remove right had the police could claim this one judge determined her car. right. He was by motion. be resolved confron- their version of had one Mattos “not courts instructs v. al-Kidd says She tation, another. Aikala Officer Ashcroft high law at a clearly established her, define pressed into bumped Aikala Officer — —, U.S. merely generality,” level chest, she was and that her (2011); 2084, 2074, 179 L.Ed.2d Aikala, the other S.Ct. her breasts. shielding not be read however, al-Kidd should being Mattos, despite hand, claims that prece our between DNA-match require a as he off, with him fought to back warned us. See id. cases before and the husband. dent away from pull tried 603, 615, 526 U.S. 2083; Layne, v. Wilson use entitled to are Although (1999). L.Ed.2d 119 S.Ct. a sus- reasonably believe force when 460-476 already in August on the books Executive Benefits Insurance

Precedent Agency, Appellant, officers and courts provided enough to know a taser in guidance toy presents dart is not a mode level Arkison, Trustee, solely Peter H. in his on par implements of force with other capacity Chapter 7 Trustee of the aggressive per- “used to subdue violent or Bellingham Agen- estate of Insurance sons.” Russo v. Cincinnati cy, Inc., Appellee. (6th Cir.1992). 1040 n. 1 Be- district correctly cause the court found No. 11-35162. facing that the circumstances Officer Aika- Appeals, United States Court of disputed, judgment la summary are Ninth Circuit. properly denied. I affirm would the dis- and, therefore, respectfully trict court dis- Nov.

sent. Paleveda, Arthur Esquire, Nicholas Law

Offices of Nicholas MBA Paleveda J.D. LL.M, WA, Bellingham, Appellant. Moewes, Jones, Seattle, Denice Wood & WA, for Appellee. 2:10-cv-00929-MJP, D.C. No. Western Washington, District of Seattle. KOZINSKI, Before: ALEX Chief Judge, PAEZ, RICHARD A. Circuit Judge, COLLINS, and RANER C. District Judge.* ORDER supplemental court invites briefs any amicus curiae addressing following — questions: Marshall, Does Stern v. U.S. —, 131 S.Ct. L.Ed.2d (2011), prohibit bankruptcy courts from final, entering a binding judgment on an action to avoid a conveyance? fraudulent so, If may the bankruptcy hear court proceeding and submit a report and rec ommendation to a federal district court in entering lieu of judgment? final In the Matter of BELLINGHAM Any responding briefs to this order shall AGENCY,

INSURANCE be days filed no later than thirty from INC., Debtor. filed date of this order. All briefs shall * Collins, The Honorable Raner ting by C. United designation. States Arizona, Judge District for the District of sit-

Case Details

Case Name: Mattos v. Agarano

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 17, 2011

Citation: 661 F.3d 433

Docket Number: 08-15567, 08-35526

Court Abbreviation: 9th Cir.