Carl Bryan v. B. McPherson ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARL BRYAN, 
Plaintiff-Appellee,
No. 08-55622
v.
D.C. No.
BRIAN MCPHERSON; CORONADO  3:06-CV-01487-
POLICE DEPARTMENT; CITY OF LAB-CAB
CORONADO, a municipal
OPINION
corporation,
Defendants-Appellants.

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
October 9, 2009—Pasadena, California
Filed December 28, 2009
Before: Harry Pregerson, Stephen Reinhardt and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw
16731
BRYAN v. MCPHERSON 16735
COUNSEL
Steven E. Boemer, David Stotland, Carrie L. Mitchell of
McDougal, Love, Eckis, Smith, Boehmer & Foley, El Cajon,
California, for the appellant.
Eugene G. Iredale, Julia Yoo of Law Offices of Eugene G.
Iredale, San Diego, California, for the appellee.
OPINION
WARDLAW, Circuit Judge:
Early one morning in the summer of 2005, Officer Brian
McPherson deployed his taser against Carl Bryan during a
traffic stop for a seatbelt infraction. Bryan filed this action
under 42 U.S.C. § 1983, asserting excessive force in violation
of the Fourth Amendment. Officer McPherson appeals the
denial of his motion for summary judgment based on quali-
fied immunity. We affirm the district court because, viewing
the circumstances in the light most favorable to Bryan, Offi-
cer McPherson’s use of the taser was unconstitutionally
excessive and a violation of Bryan’s clearly established rights.
I. FACTUAL AND PROCEDURAL BACKGROUND
Carl Bryan’s California Sunday was off to a bad start. The
twenty-one year old, having stayed the night with his younger
brother and some cousins in Camarillo, which is in Ventura
16736 BRYAN v. MCPHERSON
County, planned to drive his brother back to his parents’
home in Coronado, which is in San Diego County. However,
Bryan’s cousin’s girlfriend had accidently taken Bryan’s keys
to Los Angeles the previous day. Wearing the t-shirt and
boxer shorts in which he had slept, Bryan rose early, traveled
east with his cousins to Los Angeles, picked up his keys and
returned to Camarillo to get his car and brother. He then
began driving south towards his parents’ home. While travel-
ing on the 405 highway, Bryan and his brother were stopped
by a California Highway Patrolman who issued Bryan a
speeding ticket. This upset him greatly. He began crying and
moping, ultimately removing his t-shirt to wipe his face. Con-
tinuing south without further incident, the two finally crossed
the Coronado Bridge at about seven-thirty in the morning.
At that point, an already bad morning for Bryan took a turn
for the worse. Bryan was stopped at an intersection when
Officer McPherson, who was stationed there to enforce seat-
belt regulations, stepped in front of his car and signaled to
Bryan that he was not to proceed. Bryan immediately realized
that he had mistakenly failed to buckle his seatbelt after his
earlier encounter with the police. Officer McPherson
approached the passenger window and asked Bryan whether
he knew why he had been stopped. Bryan, knowing full well
why and becoming increasingly angry at himself, simply
stared straight ahead. Officer McPherson requested that Bryan
turn down his radio and pull over to the curb. Bryan complied
with both requests, but as he pulled his car to the curb, angry
with himself over the prospects of another citation, he hit his
steering wheel and yelled expletives to himself. Having pulled
his car over and placed it in park, Bryan stepped out of his
car.
There is no dispute that Bryan was agitated, standing out-
side his car, yelling gibberish and hitting his thighs, clad only
in his boxer shorts and tennis shoes. It is also undisputed that
Bryan did not verbally threaten Officer McPherson and,
according to Officer McPherson, was standing twenty to
BRYAN v. MCPHERSON 16737
twenty-five feet away and not attempting to flee. Officer
McPherson testified that he told Bryan to remain in the car,
while Bryan testified that he did not hear Officer McPherson
tell him to do so. The one material dispute concerns whether
Bryan made any movement toward the officer. Officer
McPherson testified that Bryan took “one step” toward him,
but Bryan says he did not take any step, and the physical evi-
dence indicates that Bryan was actually facing away from
Officer McPherson. Without giving any warning, Officer
McPherson shot Bryan with his taser gun. One of the taser
probes embedded in the side of Bryan’s upper left arm. The
electrical current immobilized him whereupon he fell face
first into the ground, fracturing four teeth and suffering facial
contusions. Bryan’s morning ended with his arrest1 and yet
another drive—this time by ambulance and to a hospital for
treatment.
Bryan sued Officer McPherson and the Coronado Police
Department, its police chief, and the City of Coronado for
excessive force in violation of 42 U.S.C. § 1983, assault and
battery, intentional infliction of emotional distress, a violation
of California Civil Code § 52.1, as well as failure to train and
related causes of action. On summary judgment, the district
court granted relief to the City of Coronado and Coronado
Police Department, but determined that Officer McPherson
was not entitled to qualified immunity at this stage of the pro-
ceedings. The court concluded that a reasonable jury could
find that Bryan “presented no immediate danger to [Officer
McPherson] and no use of force was necessary.” In particular,
it found that a reasonable jury could find that Bryan was
located between fifteen to twenty-five feet from Officer
McPherson and was not facing him or advancing toward him.
The court also found that a reasonable officer would have
1
Bryan was charged with resisting and opposing an officer in the perfor-
mance of his duties in violation of California Penal Code § 148. Bryan
was tried on this violation, but following a hung jury, the state dismissed
the charges.
16738 BRYAN v. MCPHERSON
known that the use of the taser would cause pain and, as
Bryan was standing on asphalt, that a resulting fall could
cause injury. Under the circumstances, the district court con-
cluded it would have been clear to a reasonable officer that
shooting Bryan with the taser was unlawful.
II. STANDARD OF REVIEW
The district court’s denial of qualified immunity is
reviewed de novo. Blanford v. Sacramento County, 406 F.3d
1110, 1114 (9th Cir. 2005). Where disputed issues of material
fact exist, we assume the version of the material facts asserted
by the non-moving party. See KRL v. Estate of Moore, 512
F.3d 1184, 1188-89 (9th Cir. 2008). All reasonable inferences
must be drawn in favor of the non-moving party. John v. City
of El Monte, 515 F.3d 936, 941 (9th Cir. 2008).
III. DISCUSSION
[1] In evaluating the denial of a police officer’s assertion of
qualified immunity, we ask two distinct questions. First, we
must determine whether, taking the facts in the light most
favorable to the non-moving party, the officer’s conduct vio-
lated a constitutional right; and second, if a violation
occurred, whether the right was “clearly established in light
of the specific context of the case.” al-Kidd v. Ashcroft, 580
F.3d 949, 964 (9th Cir. 2009) (citing Saucier v. Katz, 533 U.S.
194, 201 (2001)). We may “exercise [our] sound discretion in
deciding which of the two prongs of the qualified immunity
analysis should be addressed first.” Pearson v. Callahan, 129
S. Ct. 808, 818 (2009). Where we affirm the district court’s
denial of summary judgment, however, we must address both
questions.
A. Did Officer McPherson Employ Constitutionally
Excessive Force?
[2] Allegations of excessive force are examined under the
Fourth Amendment’s prohibition on unreasonable seizures.
BRYAN v. MCPHERSON 16739
Graham v. Connor, 490 U.S. 386, 394 (1989); Deorle v. Ruth-
erford, 272 F.3d 1272, 1279 (9th Cir. 2001). We ask “whether
the officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them.” Graham, 490 U.S.
at 397. We must balance “ ‘the nature and quality of the intru-
sion on the individual’s Fourth Amendment interests’ against
the countervailing governmental interests at stake.” Id. at 396(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)); see also
Scott v. Harris, 550 U.S. 372, 383 (2007). Stated another way,
we must “balance the amount of force applied against the
need for that force.” Meredith v. Erath, 342 F.3d 1057, 1061
(9th Cir. 2003).
1. Nature and Quality of the Intrusion
We begin by analyzing the quantum of force—the type and
amount of force—that Officer McPherson used against Bryan.2
See Deorle, 272 F.3d at 1279; Chew v. Gates, 27 F.3d 1432,
1440 (9th Cir. 1994). Officer McPherson shot Bryan with a
Taser X26 provided by the Coronado Police Department. The
X26 uses compressed nitrogen to propel a pair of “probes”—
aluminum darts tipped with stainless steel barbs connected to
the X26 by insulated wires—toward the target at a rate of
over 160 feet per second. Upon striking a person,3 the X26
delivers a 1200 volt, low ampere electrical charge through the
wires and probes and into his muscles.4 The impact is as pow-
2
Although the taser used by Officer McPherson was the X26 model, our
holding applies to the use of all controlled electric devices that cause simi-
lar physiological effects.
3
According to the manufacturer, the probes do not need to penetrate the
skin of the intended target to result in a successful connection. The probes
are capable of delivering their electrical charge through up to two inches
of clothing. Here, Bryan was shirtless when confronted by Officer
McPherson. As a result, one probe penetrated his skin.
4
Tasers have been described as delivering a 50,000 volt charge. See,
e.g., Brown v. City of Golden Valley, 574 F.3d 491, 495 n.3 (8th Cir.
2009). While technically accurate, this does not entirely describe the elec-
16740 BRYAN v. MCPHERSON
erful as it is swift. The electrical impulse instantly overrides
the victim’s central nervous system, paralyzing the muscles
throughout the body, rendering the target limp and helpless.
See Draper v. Reynolds, 369 F.3d 1270, 1273 n.3 (11th Cir.
2004); Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993).
The tasered person also experiences an excruciating pain that
radiates throughout the body. See Lewis v. Downey, 581 F.3d
467, 475 (7th Cir. 2009) (“[O]ne need not have personally
endured a taser jolt to know the pain that must accompany it
. . . .”); Hickey, 12 F.3d at 757.
[3] Bryan vividly testified to experiencing both paralysis
and intense pain throughout his body when he was tasered. In
addition, Officer McPherson’s use of the X26 physically
injured Bryan. As a result of the taser, Bryan lost muscular
control and fell, uncontrolled, face first into the pavement.
This fall shattered four of his front teeth and caused facial
abrasions and swelling. Additionally, a barbed probe lodged
in his flesh, requiring hospitalization so that a doctor could
remove the probe with a scalpel. A reasonable police officer
with Officer McPherson’s training on the X26 would have
foreseen these physical injuries when confronting a shirtless
individual standing on asphalt. We have held that force can be
unreasonable even without physical blows or injuries. See,
e.g., Headwaters Forest Def. v. County of Humboldt, 240 F.3d
1185, 1199 (9th Cir. 2000), vacated and remanded on other
grounds 534 U.S. 801 (2001);5 Tekle v. United States, 511
trical impulse encountered by a taser victim. According to the manufac-
turer, this 50,000 volt charge is needed to ensure that the electrical current
can “jump” through the air or victim’s clothing, thus completing a circuit.
The manufacturer maintains, however, that the full 50,000 volts do not
enter the victim’s body; rather, it represents that the X26 delivers a peak
voltage of 1,200 volts into the body.
5
On remand from the Supreme Court in light of its then-recent opinion
in Saucier, the Headwaters panel reaffirmed its earlier excessive force
analysis. See Headwaters Forest Def. v. County of Humboldt, 276 F.3d
1125 (9th Cir. 2002).
BRYAN v. MCPHERSON 16741
F.3d 839, 845 (9th Cir. 2007). The presence of non-minor
physical injuries like those suffered by Bryan, however, is
certainly relevant in evaluating the degree of the Fourth
Amendment intrusion.
[4] We, along with our sister circuits, have held that tasers
and stun guns fall into the category of non-lethal force.6 See,
e.g., Lewis, 581 F.3d at 476; United States v. Fore, 507 F.3d
412, 413 (6th Cir. 2007); San Jose Charter of Hells Angels
Motorcycle Club v. City of San Jose, 402 F.3d 962, 969 n.8
(9th Cir. 2005).7 Non-lethal, however, is not synonymous with
non-excessive; all force—lethal and non-lethal—must be jus-
tified by the need for the specific level of force employed.
Graham, 490 U.S. at 395; see also Deorle, 272 F.3d at 1285(“Less than deadly force, like deadly force, may not be used
without sufficient reason; rather, it is subject to the Graham
balancing test.”). Nor is “non-lethal” a monolithic category of
force. A blast of pepper spray and blows from a baton are not
necessarily constitutionally equivalent levels of force simply
because both are classified as non-lethal. Rather than relying
on broad characterizations, we must evaluate the nature of the
specific force employed in a specific factual situation. See
Chew, 27 F.3d at 1441 (stating that the Graham factors “are
not to be considered in a vacuum but only in relation to the
amount of force used to effect a particular seizure.”).
The physiological effects, the high levels of pain, and fore-
seeable risk of physical injury lead us to conclude that the
X26 and similar devices are a greater intrusion than other
non-lethal methods of force we have confronted. In Headwa-
6
“Lethal force” is force that creates a substantial risk of death or serious
bodily injury. See Smith v. City of Hemet, 394 F.3d 689, 705-07 (9th Cir.
2005) (en banc).
7
We recognize, however, that like any generally non-lethal force, the
taser is capable of being employed in a manner to cause the victim’s death.
See, e.g., Oliver v. Fiorino, ___ F.3d ___, 2009 WL 3417869, at *6 (11th
Cir. October 26, 2009).
16742 BRYAN v. MCPHERSON
ters, we held that a jury could conclude that pepper spray was
more than a “minimal intrusion” as it caused “intense pain
. . . , an involuntary closing of the eyes, a gagging reflex, and
temporary paralysis of the larynx.” 240 F.3d at 1200. We
rejected the district court’s characterization of pepper spray’s
intrusiveness as “merely the infliction of transient pain with-
out significant risk of physical injury.” Id. at 1199. We simi-
larly reject any contention that, because the taser results only
in the “temporary” infliction of pain, it constitutes a non-
intrusive level of force. The pain is intense, is felt throughout
the body, and is administered by effectively commandeering
the victim’s muscles and nerves. Beyond the experience of
pain, tasers result in “immobilization, disorientation, loss of
balance, and weakness,” even after the electrical current has
ended. Matta-Ballesteros v. Henman, 896 F.2d 255, 256 n.2
(7th Cir. 1990); see also Beaver v. City of Federal Way, 507
F. Supp. 2d 1137, 1144 (W.D. Wash. 2007) (“[A]fter being
tased, a suspect may be dazed, disoriented, and experience
vertigo.”). Moreover, tasering a person may result in serious
injuries when intense pain and loss of muscle control cause a
sudden and uncontrolled fall.
[5] The X26 thus intrudes upon the victim’s physiological
functions and physical integrity in a way that other non-lethal
uses of force do not. While pepper spray causes an intense
pain and acts upon the target’s physiology, the effects of the
X26 are not limited to the target’s eyes or respiratory system.
Unlike the police “nonchakus” we evaluated in Forrester v.
City of San Diego, 25 F.3d 804 (9th Cir. 1994), the pain deliv-
ered by the X26 is far more intense and is not localized, exter-
nal, gradual, or within the victim’s control. Id at 807, 805 n.5.
In light of these facts, we agree with the Fourth and Eighth
Circuit’s characterization of a taser shot as a “painful and
frightening blow.” Orem v. Rephann, 523 F.3d 442, 448 (4th
Cir. 2008) (quoting Hickey, 12 F.3d at 757). We therefore
conclude that tasers like the X26 constitute an “intermediate
or medium, though not insignificant, quantum of force,”
Sanders v. City of Fresno, 551 F. Supp. 2d 1149, 1168 (E.D.
BRYAN v. MCPHERSON 16743
Cal. 2008); Beaver, 507 F. Supp. 2d at 1144 (“[T]he Court
first finds that the use of a Taser constituted significant
force.”).
[6] We recognize the important role controlled electric
devices like the Taser X26 can play in law enforcement. The
ability to defuse a dangerous situation from a distance can
obviate the need for more severe, or even deadly, force and
thus can help protect police officers, bystanders, and suspects
alike. We hold only that the X26 and similar devices consti-
tute an intermediate, significant level of force that must be
justified by “ ‘a strong government interest [that] compels the
employment of such force.’ ” Drummond ex rel. Drummond
v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir. 2003)
(quoting Deorle, 272 F.3d at 1280 (9th Cir. 2001)).
2. Governmental Interest in the Use of Force
[7] Under Graham v. Connor, we evaluate the govern-
ment’s interest in the use of force by examining three core
factors, “the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or oth-
ers, and whether he is actively resisting arrest or attempting
to evade arrest by flight.” 490 U.S. at 396; see also Deorle,
272 F.3d at 1280. These factors, however, are not exclusive.
Rather, we examine the totality of the circumstances and con-
sider “whatever specific factors may be appropriate in a par-
ticular case, whether or not listed in Graham.” Franklin v.
Foxworth, 31 F.3d 873, 876 (9th Cir. 1994). This analysis
allows us to “determine objectively ‘the amount of force that
is necessary in a particular situation.’ ” Deorle, 272 F.3d at
1280 (quoting Graham, 490 U.S. at 396-97). Viewing the
facts in the light most favorable to Bryan, the totality of the
circumstances here did not justify the deployment of the Taser
X26.
[8] The “most important” factor under Graham is whether
the suspect posed an “immediate threat to the safety of the
16744 BRYAN v. MCPHERSON
officers or others.” Smith v. City of Hemet, 394 F.3d 689, 702
(9th Cir. 2005) (en banc) (quoting Chew, 27 F.3d at 1441). “A
simple statement by an officer that he fears for his safety or
the safety of others is not enough; there must be objective fac-
tors to justify such a concern.” Deorle, 272 F.3d at 1281. The
district court correctly concluded that Bryan’s volatile, erratic
conduct could lead an officer to be wary. While Bryan’s
behavior created something of an unusual situation, this does
not, by itself, justify the use of significant force. “A desire to
resolve quickly a potentially dangerous situation is not the
type of governmental interest that, standing alone, justifies the
use of force that may cause serious injury.” Id. Rather, the
objective facts must indicate that the suspect poses an imme-
diate threat to the officer or a member of the public.
[9] We agree with the district court that Bryan did not pose
an immediate threat to Officer McPherson or bystanders
despite his unusual behavior. It is undisputed that Bryan was
unarmed, and, as Bryan was only dressed in tennis shoes and
boxer shorts, it should have been apparent that he was
unarmed. Cf. id. at 1281 (“Deorle was wearing no shirt or
shoes, only a pair of cut-off jeans shorts. There was nowhere
for him to secrete any weapons.”). Although Bryan had
shouted expletives to himself while pulling his car over and
had taken to shouting gibberish, and more expletives, outside
his car, at no point did he level a physical or verbal threat
against Officer McPherson. See Smith, 394 F.3d at 702-03(recognizing that although the victim was shouting expletives,
there was no threat leveled against the officer). Bryan was
standing, without advancing, fifteen to twenty-five feet away
from Officer McPherson between the door and body of the
car. We reject Officer McPherson’s contention that Bryan
constituted a threat by taking a step in Officer McPherson’s
direction. First, when explicitly asked if he “[took] a step out
of the car” or a “step out away from the car,” Bryan testified
“no.” There is, therefore, a genuine issue of fact on this point,
one that, on this procedural posture, we must resolve in
Bryan’s favor and conclude that Bryan did not advance
BRYAN v. MCPHERSON 16745
towards the officer.8 Second, even if Bryan had taken a single
step toward Officer McPherson, this would not have rendered
him an immediate threat justifying an intermediate level of
force, as he still would have been roughly nineteen to twenty-
four feet away from Officer McPherson, by the officer’s own
estimate.
[10] Not only was Bryan standing, unarmed, at a distance
of fifteen to twenty-five feet, but the physical evidence dem-
onstrates that Bryan was not even facing Officer McPherson
when he was shot: One of the taser probes lodged in the side
of Bryan’s arm, rather than in his chest, and the location of
the blood on the pavement indicates that he fell away from the
officer, rather than towards him.9 An unarmed, stationary
individual, facing away from an officer at a distance of fifteen
to twenty-five feet is far from an “immediate threat” to that
officer. Nor was Bryan’s erratic, but nonviolent, behavior a
potential threat to anyone else, as there is no indication that
there were pedestrians nearby or traffic on the street at the
time of the incident.10 Finally, while confronting Bryan, Offi-
cer McPherson had unholstered and charged his X26, placing
8
Counsel for Officer McPherson argued that there is no genuine issue
regarding whether Bryan took a step towards Officer McPherson on the
basis of Bryan’s response to the question of “Did you move your feet in
any way?” Bryan answered, “I don’t think so.” There are, however, any
number of ways one can move one’s feet without taking a “step.” Because
Bryan specifically denied taking a step when expressly asked, we find a
genuine issue exists as to this fact.
9
Officer McPherson’s deposition testimony only bolsters this conclu-
sion. He testified that Bryan fell “faced forward” onto the pavement while
Bryan similarly testified that he fell straight forward.
10
Officer McPherson testified in his deposition that the intersection
where he tasered Bryan does not have a lot of traffic on it early on Sunday
mornings and that he did not remember the presence of any traffic on the
specific morning in question. Other than Bryan, his younger brother, and
Officer McPherson, the record indicates that the only individuals near the
scene were an individual playing tennis nearby and a jogger located across
the street. Their declarations indicate that they were fifty to seventy-five
feet and forty feet away, respectively.
16746 BRYAN v. MCPHERSON
him in a position to respond immediately to any change in the
circumstances. The circumstances here show that Officer
McPherson was confronted by, at most, a disturbed and upset
young man, not an immediately threatening one.
Officer McPherson relies heavily on the Eleventh Circuit
opinion in Draper v. Reynolds, 369 F.3d 1270 (11th Cir.
2004), which addressed the use of a taser during the arrest of
an aggressive, argumentative individual. Although we do not
adopt Draper as the law of this circuit, the present case is
clearly distinguishable from the one before the Eleventh Cir-
cuit. Unlike Bryan, who was yelling gibberish and gave no
sign of hearing or understanding Officer McPherson’s orders,
it was undisputed in Draper that Draper heard and understood
the officer’s commands, and not only failed to comply, but
engaged the officer in an increasingly heated argument. Id. at
1273. Four times the officer asked Draper to retrieve paper-
work from the cab of his truck and four times Draper heard
the officer, turned toward the truck to comply, but then turned
around, walked back toward the officer and loudly accused
the officer of “harassing” and “disrespecting” him, displaying
a growing belligerence. Id. It was not until the fifth time that
the officer requested the paperwork and Draper refused to
comply, yelled at the officer, and paced toward him in agita-
tion that the officer resorted to the taser. Id. The Eleventh Cir-
cuit determined that a verbal arrest command (when Draper
had refused to comply with the first five commands) accom-
panied by an attempt to physically handcuff Draper “in these
particular circumstances, may well have or would likely have
escalated a tense and difficult situation into a serious physical
struggle, in which either Draper or [the officer] would be seri-
ously hurt.” Id. at 1278.
Bryan never addressed, let alone argued with, Officer
McPherson once he left his car. In addition, whereas Bryan
remained stationary at a distance of approximately twenty
feet, or at most took a single step forward, Draper was located
close to the officer and pacing in an agitated fashion while
BRYAN v. MCPHERSON 16747
arguing with him. Id. Thus, the officer in Draper was con-
fronting a belligerent, argumentative individual who was
angrily pacing within feet of his position. Officer McPherson,
by contrast, was confronted with a half naked, unarmed, sta-
tionary, apparently disturbed individual shouting gibberish at
a distance of approximately twenty feet. The only similarity
to the factual circumstances in Draper is that both Draper and
Bryan were stopped for a traffic violation, were loud, and
were tasered by the police.
[11] The severity of Bryan’s purported offenses “provide[ ]
little, if any, basis for [Officer McPherson’s] use of physical
force.” Smith, 394 F.3d at 702. It is undisputed that Bryan’s
initial “crime” was a mere traffic infraction—failing to wear
a seatbelt—punishable by a fine. Traffic violations generally
will not support the use of a significant level of force. See
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)
(“Deville was stopped for a minor traffic violation . . . making
the need for force substantially lower than if she had been
suspected of a serious crime.”). Officer McPherson also
claims that he reasonably believed Bryan had committed three
misdemeanors—resisting a police officer, failure to comply
with a lawful order, and using or being under the influence of
any controlled substance11 — and that these constitute
“serious—and dangerous—criminal activity.” We disagree
with Officer McPherson’s assessment. While “the commis-
sion of a misdemeanor offense is ‘not to be taken lightly,’ it
militates against finding the force used to effect an arrest rea-
sonable where the suspect was also nonviolent and ‘posed no
threat to the safety of the officers or others.’ ” Headwaters,
240 F.3d at 1204 (quoting Hammer v. Gross, 932 F.2d 842,
11
Cal. Veh. Code § 2800(a) (making it a misdemeanor to willfully fail
or refuse to comply with an order of a peace officer); Cal. Health & Safety
Code § 11550 (making it unlawful to “use, or be under the influence of
any controlled substance”); Cal. Penal Code § 148 (punishing every indi-
vidual “who willfully resists, delays, or obstructs any public officer . . .
in the discharge . . . of his or her office” with a fine up to $1000 or up
to 1 year in a county jail).
16748 BRYAN v. MCPHERSON
846 (9th Cir. 1991)). None of the offenses for which Bryan
was cited or of which he was suspected is inherently danger-
ous or violent, and as already discussed, Bryan posed little to
no safety threat. Cf. Parker v. Gerrish, 547 F.3d 1, 9 (1st Cir.
2008) (“Though driving while intoxicated is a serious offense,
it does not present a risk of danger to the arresting officer that
is presented when an officer confronts a suspect engaged in
an offense like robbery or assault.”). Therefore, there was no
substantial government interest in using significant force to
effect Bryan’s arrest for these misdemeanor violations that
even the State of California has determined are minor.12 Cf.
Miller v. Clark County, 340 F.3d 959, 964 (9th Cir. 2003)
(finding a felony to be “by definition a crime deemed serious
by the state”).
[12] Officer McPherson now argues that use of the taser
was justified because he believed Bryan may have been men-
tally ill and thus subject to detention. To the contrary: if Offi-
cer McPherson believed Bryan was mentally disturbed he
should have made greater effort to take control of the situation
through less intrusive means. As we have held, “[t]he prob-
lems posed by, and thus the tactics to be employed against, an
unarmed, emotionally distraught individual who is creating a
disturbance or resisting arrest are ordinarily different from
those involved in law enforcement efforts to subdue an armed
and dangerous criminal who has recently committed a serious
offense.” Deorle, 272 F.3d at 1282-83. Although we have
refused to create two tracks of excessive force analysis, one
for the mentally ill and one for serious criminals, we have
found that even “when an emotionally disturbed individual is
‘acting out’ and inviting officers to use deadly force to subdue
12
Our sister circuits have likewise concluded that misdemeanors are rel-
atively minor and will generally not support the deployment of significant
force. See, e.g., Fogarty v. Gallegos, 523 F.3d 1147, 1160 (10th Cir.
2008); Reese v. Herbert, 527 F.3d 1253, 1274 (11th Cir. 2008). In addi-
tion, we have previously suggested that felonies not involving violence
provide limited support for the use of significant force under Graham. See
Meredith, 342 F.3d at 1063; Chew, 27 F.3d at 1442-43 & n.9.
BRYAN v. MCPHERSON 16749
him, the governmental interest in using such force is dimin-
ished by the fact that the officers are confronted . . . with a
mentally ill individual.” Id. at 1283. The same reasoning
applies to intermediate levels of force. A mentally ill individ-
ual is in need of a doctor, not a jail cell, and in the usual case
—where such an individual is neither a threat to himself nor
to anyone else—the government’s interest in deploying force
to detain him is not as substantial as its interest in deploying
that force to apprehend a dangerous criminal. Moreover, the
purpose of detaining a mentally ill individual is not to punish
him, but to help him. The government has an important inter-
est in providing assistance to a person in need of psychiatric
care; thus, the use of force that may be justified by that inter-
est necessarily differs both in degree and in kind from the use
of force that would be justified against a person who has com-
mitted a crime or who poses a threat to the community. Thus,
whether Officer McPherson believed that Bryan had commit-
ted a variety of nonviolent misdemeanors or that Bryan was
mentally ill, this Graham factor does not support the deploy-
ment of an intermediate level of force.
Turning to Bryan’s “resistance,” we note that Bryan in fact
complied with every command issued by Officer McPherson
except the one he asserts he did not hear—to remain in the
car. Even if Bryan failed to comply with the command to
remain in his vehicle, such noncompliance does not constitute
“active resistance” supporting a substantial use of force. Fol-
lowing the Supreme Court’s instruction in Graham, we have
drawn a distinction between passive and active resistance. See
Forrester, 25 F.3d at 805 (finding that protestor’s “remaining
seated, refusing to move, and refusing to bear weight” despite
police orders to the contrary constituted “passive resistance”);
see also Headwaters, 276 F.3d at 1130-31 (finding that prote-
stors, who were chained together with devices and refused to
exit a building when ordered, passively resisted).
By shouting gibberish and hitting himself in the quadriceps,
Bryan may not have been perfectly passive. “Resistance,”
16750 BRYAN v. MCPHERSON
however, should not be understood as a binary state, with
resistance being either completely passive or active. Rather,
it runs the gamut from the purely passive protestor who sim-
ply refuses to stand, to the individual who is physically
assaulting the officer. We must eschew ultimately unhelpful
blanket labels and evaluate the nature of any resistance in
light of the actual facts of the case. For example, in Smith v.
City of Hemet, we confronted an individual who “continually
ignored” officer commands to remove his hands from his
pockets and to not re-enter his home. In addition, he “physi-
cally resisted . . . for only a brief time.” 394 F.3d at 703.
Although Smith was not perfectly passive in the encounter,
we stated that it did not appear “that Smith’s resistance was
particularly bellicose” and thus found that this factor provided
little support for a use of significant force. Id. Even purely
passive resistance can support the use of some force, but the
level of force an individual’s resistance will support is depen-
dent on the factual circumstances underlying that resistance.
[13] Reviewing Bryan’s conduct, we conclude that even if
we were to consider his degree of compliance solely from the
officer’s subjective point of view, this case would be closer
to the passive resistance we confronted in Forrester and
Headwaters or the minor resistance in Smith, than it would be
to truly active resistance. The only resistance Officer McPher-
son testified to was a failure to comply with his order that
Bryan remain in his car. Shouting gibberish and hitting one’s
quadriceps is certainly bizarre behavior, but such behavior is
a far cry from actively struggling with an officer attempting
to restrain and arrest an individual. Compare Abdullahi v. City
of Madison, 423 F.3d 763, 776 (7th Cir. 2005) (involving an
arrestee swinging a belt at an officer and “strenuously resist[-
ing]” as the police attempted to handcuff him); McCormick v.
City of Fort Lauderdale, 333 F.3d 1234, 1241-42 (11th Cir.
2003) (involving an arrestee engaging and advancing on offi-
cers with a stick); Jackson v. City of Bremerton, 268 F.3d
646, 653 (9th Cir. 2001) (involving an individual interfering
with an attempted arrest of an individual by engaging the offi-
BRYAN v. MCPHERSON 16751
cer in a “melee”). As in Smith, Bryan’s “resistance” was not
“particularly bellicose.” Smith, 394 F.3d at 703. Indeed, when
we view the facts in the light most favorable to Bryan, as we
must at this stage of the proceedings, his conduct does not
constitute resistance at all.13
[14] Two additional considerations militate against finding
Officer McPherson’s use of force reasonable. First, it is undis-
puted that Officer McPherson failed to warn Bryan that he
would be shot with the X26 if he did not comply with the
order to remain in his car.14 We recognized in Deorle that
police officers normally provide such warnings where feasi-
ble, even when the force is less than deadly, and that the fail-
ure to give such a warning is a factor to consider. See 272
F.3d at 1284; see also Jackson, 268 F.3d at 653 (finding that
the officer’s “safety interest” “increased further when the
group was warned by police that a chemical irritant would be
used if they did not move back . . . and the group refused to
comply”). Here, it was feasible to give a warning that the use
of force was imminent if Bryan did not comply. While a
warning to Bryan may or may not have caused him to comply,
there was “ample time to give that order or warning and no
reason whatsoever not to do so.” Deorle, 272 F.3d at 1284.
[15] Second, we have held that police are “required to con-
sider ‘[w]hat other tactics if any were available’ to effect the
arrest.” Headwaters, 240 F.3d at 1204 (quoting Chew, 27 F.3d
13The jury may credit Bryan’s testimony that he did not hear the offi-
cer’s order to remain in the car. The evidence suggests that Bryan thought
the officer would again approach from the passenger side of his car and
that Bryan turned to face that way. That the officer was instead yards away
in the other direction may have prevented Bryan from hearing the com-
mands.
14
Officer McPherson now argues that he did warn Bryan. However,
Officer McPherson’s own testimony belies this claim. Officer McPherson
has consistently testified that he repeatedly ordered Bryan to remain in his
vehicle. This clearly constitutes a command, but it hardly warns him that
if he failed to return to his car he would be shot with a taser.
16752 BRYAN v. MCPHERSON
at 1443).15 Officer McPherson argues that there were no less
intrusive alternatives available to apprehend Bryan. Objec-
tively, however, there were clear, reasonable, and less intru-
sive alternatives. Officer McPherson knew additional officers
were en route to the scene. He was, or should have been,
aware that the arrival of those officers would change the tacti-
cal calculus confronting him, likely opening up additional
ways to resolve the situation without the need for an interme-
diate level of force. Thus, while by no means dispositive, that
Officer McPherson did not provide a warning before deploy-
ing the X26 and apparently did not consider less intrusive
means of effecting Bryan’s arrest factor significantly into our
Graham analysis.
3. Balancing the Competing Interests
[16] Our review of the Graham factors reveals that the gov-
ernment had, at best, a minimal interest in the use of force
against Bryan. This interest is insufficient to justify the use of
an intermediate level of force against an individual. We are
cognizant of the Supreme Court’s command to evaluate an
officer’s actions “from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396. We also recognize the reality that
“police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary
in a particular situation.” Id. at 397. This does not mean, how-
ever, that a Fourth Amendment violation will be found only
in those rare instances where an officer and his attorney are
unable to find a sufficient number of compelling adjectives to
15
We do not challenge the settled principle that police officers need not
employ the “least intrusive” degree of force possible. See Gregory v.
County of Maui, 523 F.3d 1103, 1107 (9th Cir. 2008) (citing Forrester, 25
F.3d at 807-08). We merely recognize the equally settled principle that
officers must consider less intrusive methods of effecting the arrest and
that the presence of feasible alternatives is a factor to include in our analy-
sis.
BRYAN v. MCPHERSON 16753
describe the victim’s conduct. Nor does it mean that we can
base our analysis on what officers actually felt or believed
during an incident. Rather, we must ask if the officers’ con-
duct is “ ‘objectively reasonable’ in light of the facts and cir-
cumstances confronting them” without regard for an officer’s
subjective intentions. Id.[17] We thus conclude that the intermediate level of force
employed by Officer McPherson against Bryan was excessive
in light of the governmental interests at stake. Bryan never
attempted to flee. He was clearly unarmed and was standing,
without advancing in any direction, next to his vehicle. Offi-
cer McPherson was standing approximately twenty feet away
observing Bryan’s stationary, bizarre tantrum with his X26
drawn and charged. Consequently, the objective facts reveal
a tense, but static, situation with Officer McPherson ready to
respond to any developments while awaiting back-up. Bryan
was neither a flight risk, a dangerous felon, nor an immediate
threat. Therefore, there was simply “no immediate need to
subdue [Bryan]” before Officer McPherson’s fellow officers
arrived or less-invasive means were attempted. Deorle, 272
F.3d at 1282; see also; Blankenhorn v. City of Orange, 485
F.3d 463, 480 (9th Cir. 2007) (“ ‘[I]t is the need for force
which is at the heart of the Graham factors’ ” (quoting Liston
v. County of Riverside, 120 F.3d 965, 976 (9th Cir. 1997))).
Officer McPherson’s desire to quickly and decisively end an
unusual and tense situation is understandable. His chosen
method for doing so violated Bryan’s constitutional right to
be free from excessive force.
B. Did Officer McPherson Violate Bryan’s Clearly
Established Rights?
[18] Having concluded that Officer McPherson’s actions
violated Bryan’s Fourth Amendment rights, we next must ask
whether his conduct “violate[d] clearly established statutory
or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
16754 BRYAN v. MCPHERSON
(1982). If an officer’s use of force was “premised on a rea-
sonable belief that such force was lawful,” the officer will be
granted immunity from suit, notwithstanding the fact exces-
sive force was deployed. Deorle, 272 F.3d at 1285; see also
Saucier, 533 U.S. at 202 (asserting that the qualified immu-
nity analysis asks “whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he con-
fronted”). We must, therefore, turn to the state of the law at
the time of the current incident to determine if Officer
McPherson could have reasonably believed his use of the
taser against Bryan was constitutional. See Saucier, 533 U.S.
at 202.
[19] All of the factors articulated in Graham—along with
our recent applications of Graham in Deorle and Headwaters
—placed Officer McPherson on fair notice that an intermedi-
ate level of force was unjustified. See Fogarty v. Gallegos,
523 F.3d 1147, 1162 (10th Cir. 2008) (“Considering that
under Fogarty’s version of events each of the Graham factors
lines up in his favor, this case is not so close that our prece-
dents would fail to portend the constitutional unreasonable-
ness of defendants’ alleged actions.”); Boyd v. Benton County,
374 F.3d 773, 781 (9th Cir. 2004) (asking whether “a reason-
able officer would have had fair notice that the force
employed was unlawful”). Officer McPherson stopped Bryan
for the most minor of offenses. There was no reasonable basis
to conclude that Bryan was armed. He was twenty feet away
and did not physically confront the officer. The facts suggest
that Bryan was not even facing Officer McPherson when he
was shot. A reasonable officer in these circumstances would
have known that it was unreasonable to deploy intermediate
force.
[20] That there is no direct legal precedent dealing with this
precise factual scenario is not dispositive. Rather, where an
officer’s conduct so clearly offends an individual’s constitu-
tional rights, we do not need to find closely analogous case
law to show that a right is clearly established. Moreno v.
BRYAN v. MCPHERSON 16755
Baca, 431 F.3d 633, 641 (9th Cir. 2005); see also Hope v.
Pelzer, 536 U.S. 730, 741 (2002) (“[O]fficials can still be on
notice that their conduct violates established law even in
novel factual circumstances.”); Oliver, ___ F.3d at ___, 2009
WL 3417869, at *7 (finding that a right can be clearly estab-
lished where the officer’s conduct “lies so obviously at the
very core of what the Fourth Amendment prohibits that the
unlawfulness of the conduct was readily apparent to [the offi-
cer], notwithstanding the lack of fact-specific case law”). In
the excessive force context, it is clearly established that “force
is least justified against nonviolent misdemeanants who do
not flee or actively resist and pose little or no threat to the
security of the officers or the public.” Brown v. City of Gol-
den Valley, 574 F.3d 491, 499 (8th Cir. 2009); see also Casey
v. City of Federal Heights, 509 F.3d 1278, 1285 (10th Cir.
2007). No reasonable officer confronting a situation where the
need for force is at its lowest—where the target is a nonvio-
lent, stationary misdemeanant twenty feet away—would have
concluded that deploying intermediate force without warning
was justified. We thus hold that Officer McPherson’s use of
significant force in these circumstances does not constitute a
“reasonable mistake” of either fact or law. Deorle, 272 F.3d
at 1286. Officer McPherson is therefore not entitled to quali-
fied immunity for his use of the Taser X26 against Bryan.
CONCLUSION
Viewing the facts, as we must, in the light most favorable
to Bryan, we conclude, for the purposes of summary judg-
ment, that Officer McPherson is not entitled to qualified
immunity. We therefore AFFIRM the district court’s denial
of summary judgment and REMAND this case for further
proceedings.