Dejuan Hopson v. Jacob Alexander ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEJUAN MARKEISS HOPSON, No. 21-16706
Plaintiff-Appellee, D.C. No.
2:20-cv-00128-
v. SMB-DMF
JACOB ALEXANDER; BRANDON
GRISSOM, OPINION
Defendants-Appellants,
Appeal from the United States District Court
for the District of Arizona
Susan M. Brnovich, District Judge, Presiding
Argued and Submitted August 10, 2022
San Francisco, California
Filed June 16, 2023
Before: Johnnie B. Rawlinson, Bridget S. Bade, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Bress;
Dissent by Judge Rawlinson
2 HOPSON V. ALEXANDER
SUMMARY*
Civil Rights / Qualified Immunity
The panel reversed the district court’s denial of qualified
immunity to police detectives Jacob Alexander and Brandon
Grissom in an action brought pursuant to 42 U.S.C. § 1983alleging defendants used excessive force when they pointed
a gun at plaintiff and forcefully extracted him from a car,
without identifying themselves as law enforcement officers.
Believing that two men were about to engage in the
armed robbery of a gas station, defendants approached the
suspects’ vehicle with guns pointed, forcibly removed the
driver, plaintiff DeJuan Hopson, and handcuffed him.
In holding that the officers were entitled to qualified
immunity, the panel first determined that it was not clearly
established that the officers lacked an objectively reasonable
belief that criminal activity was about to occur. Under the
qualified immunity framework and given the suspicious
Terry-like conduct observed here, no clearly established law
gave the panel cause to second-guess Detective Alexander’s
on-the-ground suspicion that an armed robbery was about to
occur. And an armed robbery necessarily involves the use
of weapons. Clearly established law therefore did not
prevent the officers from suspecting plaintiff might be
armed—which, in fact, he was.
The panel held that defendants did not violate clearly
established law when they pointed their guns at plaintiff.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HOPSON V. ALEXANDER 3
Noting that this Circuit’s law makes clear that pointing a gun
at a suspect is not categorically out of bounds, the panel
could find no authority that placed the unconstitutionality of
the detectives’ conduct beyond debate in the circumstances
they confronted.
The panel next rejected plaintiff’s contention that
defendants violated clearly established law by using
excessive force when removing him from the car and
arresting him. No clearly established law prevented the
detectives from acting quickly and with moderate force to
ensure that plaintiff was detained without incident. Thus, no
controlling authority clearly established beyond debate that
the amount of force used during plaintiff’s arrest was
objectively unreasonable.
Finally, the panel rejected plaintiff’s argument that the
detectives violated clearly established law in failing to
identify themselves as law enforcement officers. Under the
circumstances of this case, precedent did not clearly
establish that the detectives’ alleged failure to identify
themselves as police officers made their use of force
excessive.
Dissenting, Judge Rawlinson stated that under the facts
of this case, viewed in the light most favorable to plaintiff,
the officers violated clearly established law when they
forcefully yanked plaintiff from his vehicle at gunpoint
without warning and forcefully handcuffed him, when he
was merely conversing with a passenger in the vehicle and
posed no immediate threat to the officers or to the
public. Because the officers who used this gratuitous and
violent excessive force against plaintiff were not entitled to
qualified immunity, Judge Rawlinson would affirm the
district court’s judgment.
4 HOPSON V. ALEXANDER
COUNSEL
Alexander J. Lindvall (argued), Deputy City Attorney, City
of Mesa Attorney’s Office, Mesa, Arizona, for Defendants-
Appellants.
Margarita Botero (argued) and Mary V. Sooter, Wilmer
Cutler Pickering Hale and Dorr LLP, Denver, Colorado;
Sophie B. Cooper, Wilmer Cutler Pickering Hale and Dorr
LLP, San Francisco, California; Thomas Lampert,
WilmerHale, Boston, Massachusetts; Oren Nimni, Rights
Behind Bars, Washington, D.C.; for Plaintiff-Appellee.
HOPSON V. ALEXANDER 5
OPINION
BRESS, Circuit Judge:
Believing that two men were about to engage in the
armed robbery of a gas station, Detectives Jason Alexander
and Brandon Grissom approached the suspects’ vehicle with
guns pointed, forcibly removed the driver, and handcuffed
him. The officers found a firearm in the vehicle. The driver
of the car had a felony conviction and could not legally
possess the gun. We consider here not the lawfulness of the
driver’s conduct (at least not directly), but that of the
officers. In this case, the driver, DeJuan Hopson, has sued
the detectives under 42 U.S.C. § 1983, alleging that they
used excessive force when pointing a gun at him and
forcefully extracting him from the car, all without
identifying themselves as law enforcement officers.
We hold that the officers are entitled to qualified
immunity. All we decide is whether the officers violated
clearly established constitutional law in the circumstances
they confronted. They did not. We reverse the district
court’s denial of qualified immunity and remand for
proceedings consistent with this opinion.
I
On January 25, 2018, Detective Jacob Alexander pulled
his unmarked police vehicle into a Gilbert, Arizona gas
station to purchase a drink. He watched as another driver,
later identified as Tommy Jones, backed into a parking spot,
“cran[ed] his neck,” and “nervously” looked around. Jones
repeated this behavior several times, each time backing into
a new parking spot and “turn[ing] his body 180 degrees in
the vehicle to get a good look at his surroundings.”
6 HOPSON V. ALEXANDER
Jones remained in his vehicle throughout, leading
Alexander to conclude that Jones “had no intention of
making a purchase at the gas station.” It appeared to
Alexander that Jones was scouting around for police
officers, video cameras, or other means by which he could
be detected, and that Jones was trying to find a parking spot
that would allow a hasty exit. Based on Jones’s “abnormally
nervous” behavior and Alexander’s training and decade-plus
of law enforcement experience, Alexander believed Jones
was “casing” the gas station and that “an armed robbery was
about to occur.”
After watching this activity go on for approximately
fifteen minutes, Alexander observed plaintiff DeJuan
Hopson drive into the parking lot and park alongside Jones.
Jones then exited his own vehicle and got into Hopson’s.
Alexander watched them converse and exchange items. At
one point, Jones retrieved something from his own car and
returned to Hopson’s vehicle. Believing that Jones and
Hopson were about to embark on criminal activity and
knowing that traffic stops can be dangerous, Alexander
called for backup. Detective Brandon Grissom arrived a few
minutes later, apparently accompanied by four other
officers. Grissom parked his police car (which we assume
was also unmarked) behind Hopson’s vehicle.
Although what happened next is disputed, we recite
Hopson’s version of the story. Detective Alexander
approached Hopson’s driver’s side door with his gun pointed
out. Alexander opened the door and “forcefully removed”
Hopson from the vehicle. In doing so, he yanked Hopson’s
left arm with “enough force to put [him] in a state of shock
and make [him] think that [he] was being robbed,” and then
“forcefully” handcuffed him while “verbally dar[ing]”
Hopson to make a move. Alexander never announced that
HOPSON V. ALEXANDER 7
he was a police officer. Detective Grissom stood nearby
throughout the encounter and kept his gun pointed at
Hopson. Another officer pulled Jones out of the passenger
side of the vehicle, and three more officers also stood by, all
with guns drawn. Although Hopson alleges no physical
injury, he claims that Alexander and Grissom’s actions
caused him to experience “depression, anxiety, loss of sleep,
nervous[ness], and a fear of retaliation.”
The detectives questioned Hopson about the smell of
marijuana emanating from the car and checked Hopson’s
driver’s license status and criminal history. This turned up
Hopson’s prior felony convictions for aggravated assault and
several weapons-related offenses, that he was on probation
for another crime, and that his license was suspended. Both
because he was a convicted felon and because he was on
probation, Hopson was not permitted to possess a firearm.
Based on the marijuana odor coming from the car and
Hopson’s inability to demonstrate he could use marijuana for
medical purposes (as well as the fact of Hopson driving with
a suspended license), the detectives undertook a search of
the car. They first found marijuana but then discovered a
Glock handgun with an extended magazine between the
driver’s seat and the center console.
Alexander placed Hopson under arrest. Hopson was
later charged in Maricopa County Superior Court with
possession of marijuana and unlawful possession of a
firearm. Hopson filed a motion to suppress the evidence
found in his car, arguing that there was insufficient
justification for an investigatory stop. Finding that there was
not reasonable suspicion to support the stop, the state trial
court granted Hopson’s motion and dismissed all charges
without prejudice.
8 HOPSON V. ALEXANDER
On April 23, 2020, Hopson filed a pro se complaint
against Alexander and Grissom (Hopson now has counsel on
appeal).1 Hopson brought claims under § 1983, alleging that
the detectives violated the Fourth and Fourteenth
Amendments when they (1) stopped him without reasonable
suspicion and (2) used excessive force when arresting him.
The detectives moved for summary judgment, and
Hopson did not respond to their motion. The district court
compared the facts of this case to Terry v. Ohio, 392 U.S. 1(1968), which it viewed as “very similar.” Finding that “a
reasonable officer easily could have believed that he had
reasonable suspicion to stop” Hopson and Jones, the court
granted summary judgment to the detectives on Hopson’s
unlawful stop claim. On the excessive force claim, however,
the district court found that it could not resolve “the key
factual dispute in this case—whether Defendants used any
force at all against Plaintiff, let alone unreasonable force.”
The district court therefore denied the detectives’ motion for
summary judgment on the excessive force claim.
Alexander and Grissom timely appeal.
II
Although we generally do not have jurisdiction to review
denials of summary judgment, which are interlocutory in
nature, a summary judgment order denying qualified
immunity is immediately appealable. Wilkinson v. Torres,
610 F.3d 546, 549–50 (9th Cir. 2010) (citing Scott v. Harris,
550 U.S. 372, 376 n.2 (2007)). In such an appeal, we decide
de novo whether the facts, “considered in the light most
1
The district court separately dismissed Hopson’s claims against the
other four officers. Those other officers are not part of this appeal.
HOPSON V. ALEXANDER 9
favorable to the plaintiff,” show that qualified immunity is
warranted. Ames v. King County, 846 F.3d 340, 347 (9th
Cir. 2017). Although we “assum[e] that the version of the
material facts asserted by the [plaintiff] is correct,” Jeffers v.
Gomez, 267 F.3d 895, 903 (9th Cir. 2001), we may consider
facts offered by the defendant that are “uncontradicted by
any evidence in the record,” Wilkinson, 610 F.3d at 551.
Here, we do not resolve any factual disputes, nor does
the factual dispute that the district court identified—
concerning the degree of force the detectives used— detain
us. We assume that Hopson’s version of the facts, which we
recited above, is the correct one. And we analyze the
qualified immunity question under that set of facts. See
Ames, 846 F.3d at 347.
A
Under the doctrine of qualified immunity, police officers
are not liable under § 1983 “unless (1) they violated a federal
statutory or constitutional right, and (2) the unlawfulness of
their conduct was ‘clearly established at the time.’” District
of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting
Reichle v. Howards, 566 U.S. 658, 664 (2012)). This
familiar conjunctive test allows us to approach the qualified
immunity question using either prong as our starting point.
Pearson v. Callahan, 555 U.S. 223, 236 (2009). We may
thus “exercise our discretion to resolve a case only on the
second ground when no clearly established law shows that
the officers’ conduct was unconstitutional.” O’Doan v.
Sanford, 991 F.3d 1027, 1036 (9th Cir. 2021).
Under the second prong of the inquiry, a constitutional
violation is clearly established only if existing law “placed
the constitutionality of the officer’s conduct ‘beyond
debate,’” such that “every ‘reasonable official would
10 HOPSON V. ALEXANDER
understand that what he is doing’ is unlawful.” Wesby, 138
S. Ct. at 589 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011)). “This demanding standard protects ‘all but the
plainly incompetent or those who knowingly violate the
law.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)). Although “a case directly on point” is not
necessarily required, a rule is only clearly established if it
has been “settled” by “controlling authority” or “a robust
consensus of cases of persuasive authority” that “clearly
prohibit[s] the officer’s conduct in the particular
circumstances,” with “a high degree of specificity.” Id. at
589–90 (quotations omitted). Importantly, we may not
“define clearly established law at a high level of generality,
since doing so avoids the crucial question whether the
official acted reasonably in the particular circumstances that
he or she faced.” Id. at 590 (quoting Plumhoff v. Rickard,
572 U.S. 765, 779 (2014)).
These guideposts, which the Supreme Court has
insistently fixed in many cases, have special relevance in the
Fourth Amendment context. See Mullenix v. Luna, 577 U.S.
7, 12 (2015) (per curiam). Fourth Amendment violations
generally, and excessive force claims more specifically, can
involve situations “in which the result[s] depend[] very
much on the facts of each case.” Plumhoff, 572 U.S. at 779(quoting Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per
curiam)). The often fact-dependent nature of judicial
decision-making in this area can make it difficult for officers
to know in advance whether their actions will be found
unlawful. See Mullenix, 577 U.S. at 12. Plaintiffs asserting
excessive force claims must thus point to an existing rule that
“squarely governs” the facts at issue and that moves the
officer’s actions outside the “hazy border between excessive
and acceptable force.” Brosseau, 543 U.S. at 201 (quotation
HOPSON V. ALEXANDER 11
omitted); see also Rivas-Villegas v. Cortesluna, 142 S. Ct. 4,
8 (2021) (per curiam) (burden is on the plaintiff to identify
precedent “that put [the defendant] on notice that his specific
conduct was unlawful”).
To determine whether an officer used excessive force in
violation of the Fourth Amendment, we balance “the nature
and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing
governmental interests at stake.” Felarca v. Birgeneau, 891
F.3d 809, 816 (9th Cir. 2018) (quoting Graham v. Connor,
490 U.S. 386, 396 (1989)). This requires us to take into
account the totality of the circumstances, including the “type
and amount of force inflicted,” “the severity of injuries,”
“the severity of the crime at issue,” “whether the suspect
poses an immediate threat to the safety of the officers or
others,” and “whether he is actively resisting arrest or
attempting to evade arrest by flight.” Id. at 817 (quotations
omitted). We may also consider “the availability of less
intrusive alternatives to the force employed and whether
warnings were given.” Id. Whether the suspect poses a
threat is “the most important single element.” Smith v. City
of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc)
(quotation omitted). We do not, however, consider these
factors with clinical detachment. We must evaluate them
appreciating 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.” Graham, 490 U.S.
at 396–97.
B
In this case, the general legal standards we have just set
forth do not on their own provide a basis for denying the
12 HOPSON V. ALEXANDER
detectives qualified immunity on Hopson’s excessive force
claim. The starting point for this analysis is determining
whether, under the existing case law, the officers could have
reasonably suspected that Hopson was engaged in criminal
activity and that he was armed and dangerous. We will then
proceed to determine whether it was clearly established that
the amount of force the officers used was excessive in light
of the perceived safety risk.
To begin, it was not clearly established that the officers
lacked an objectively reasonable belief that criminal activity
was about to occur. See Illinois v. Wardlow, 528 U.S. 119,
123 (2000) (“[A]n officer may, consistent with the Fourth
Amendment, conduct a brief, investigatory stop when the
officer has a reasonable, articulable suspicion that criminal
activity is afoot.”). Indeed, as the district court noted, the
events at issue here bear notable resemblance to those in the
Supreme Court’s seminal Terry decision.
There, an officer watched two men repeatedly pace in
front of a store window, peer around, and confer amongst
themselves for several minutes. 392 U.S. at 6. A third man
approached and briefly conversed with the other two before
walking away. Id. Shortly after, the two men also walked
off in the same direction. Id. The officer’s training and
experience led him to believe that the three men were casing
the store for a robbery, and he stopped and frisked all three
of them. Id. at 6, 28. The Supreme Court held that the
officer had reasonable suspicion that the men were armed
and dangerous, permitting the officer to frisk them for
weapons. Id. at 28. The suspects’ actions “were consistent
with [the officer’s] hypothesis that these men were
contemplating a daylight robbery—which, it is reasonable to
assume, would be likely to involve the use of weapons.” Id.HOPSON V. ALEXANDER 13
In light of Terry, it is at the very least not clearly
established that a reasonable officer was required to
conclude that Jones and Hopson were not contemplating
criminal activity. True, the state trial court dismissed the
criminal charges against Hopson after finding that the initial
investigatory stop was unjustified. But we are now dealing
with a civil suit under § 1983, in which the doctrine of
qualified immunity comes into play. Hopson in this case
initially challenged the lawfulness of the detectives’
investigatory stop, but the district court granted qualified
immunity to the detectives on that claim. As the district
court properly concluded, “[b]ecause the facts of this case
are so similar to Terry, a reasonable officer easily could have
believed that he had reasonable suspicion to stop the Plaintiff
and his associate.”
Terry confirms that the detectives’ suspicion of a
planned armed robbery was not unreasonable. Terry was not
an excessive force case, and the police officer there did not
point a gun. We do not suggest that Terry answers the
excessive force question. But Terry shows, at the outset of
our analysis, the type of “casing” conduct that an officer may
reasonably view as suggestive of an armed robbery. Terry
furthermore tells us that when officers suspect a person of
“casing” a store for an armed robbery, they may reasonably
believe that person to be armed and dangerous.
Under the qualified immunity framework, and given the
suspicious Terry-like conduct observed here, no clearly
established law gives us cause to second-guess Detective
Alexander’s on-the-ground suspicion that an armed robbery
was about to occur. And an armed robbery necessarily
involves the use of weapons. See Terry, 392 U.S. at 28.
Clearly established law therefore did not prevent the officers
14 HOPSON V. ALEXANDER
from suspecting Hopson might be armed—which, in fact, he
was.
Our fine dissenting colleague sees things differently.
But in our respectful view, the dissent rests on a
misapprehension of the record. The dissent repeatedly
intones that there was “no indication” of a threatened crime
involving the use of force, and that Hopson thus posed “no
threat to the safety of the officers or to the safety of the
public.” Dissent 41, 45. But the dissent is grounded on its
determination that Hopson and Jones “were merely
conversing in a vehicle.” Dissent 43. As the dissent
describes the situation, officers pointed guns at Hopson and
yanked him from a vehicle “when he was merely conversing
with Jones and posed no immediate threat to the officers or
to the public.” Dissent 50.
Although we are obligated to construe the facts in favor
of the plaintiff at summary judgment, the record does not
support the dissent’s portrayal of the key events. This is not
a case of officers pouncing on mere conversationalists. The
dissent asserts that the officers “never conducted any
investigation” before removing Hopson from the vehicle.
Dissent 49. But Detective Alexander had in fact studied
Jones for fifteen minutes as Jones suspiciously reparked his
vehicle, craned his necked, scanned the parking lot, and
nervously looked around—conduct that Detective
Alexander perceived, based on his training and experience,
as pre-planning for an armed robbery. When Hopson arrived
and Jones entered Hopson’s car, Detective Alexander
watched the two exchange items, with Jones then going back
to his car to get something and returning to Hopson’s
vehicle.
HOPSON V. ALEXANDER 15
The dissent claims the latter points are disputed because
Hopson alleged in his complaint that the incident took place
“during a private conversation” between Hopson and Jones.
The dissent takes this allegation to mean that the two men
“were only engaged in conversation.” Dissent 34 n.1. But
Hopson has not contested that he and Jones exchanged items
or that Jones went back to his vehicle to retrieve something.
Hopson’s complaint does not create a conflict on these
points, nor did Hopson attest that he and Jones were “only”
conversing—the dissent has added the “only.” In fact, at oral
argument, Hopson’s counsel twice affirmatively noted
Alexander’s recollection that Hopson and Jones exchanged
items, without suggesting there was any dispute of fact on
this point.
Equally unfounded is the dissent’s suggestion that
Detective Alexander’s suspicions somehow waned as the
events wore on. Detective Alexander’s declaration states
that “Jones’s actions led me to suspect that an armed robbery
was about to occur,” and that after Hopson arrived and the
two exchanged items, “it was clear to me that Jones and
Hopson were engaged in criminal activity.” Seizing on the
latter portion of Alexander’s declaration, the dissent states
that “once Mr. Hopson arrived on the scene,” Detective
Alexander’s “suspicion morphed from a potential armed
robbery to the more generic ‘engag[ing] in criminal
activity.’” Dissent 35. The dissent goes so far as to assert
that “by the time Mr. Hopson arrived on the scene,”
Detective Alexander’s “belief” “had shifted to the
observation that the two individuals ‘were engaged in [some
unspecified] criminal activity.’” Dissent 47. But the dissent
has added the words in brackets to the quote of Detective
Alexander’s declaration. In context, it is clear that the
“criminal activity” to which Detective Alexander was
16 HOPSON V. ALEXANDER
referring was the only criminal activity he had previously
mentioned in his declaration: the planning of an armed
robbery.2 Nothing in Detective Alexander’s declaration
indicates that he no longer believed an armed robbery was in
the works or that his suspicions had abated. The dissent’s
determination that there was no threat to the public does not
rest on a permissible view of the facts.3
To the extent the dissent disagrees with how Detective
Alexander perceived the situation, its position fares no
better. In performing the qualified immunity analysis, we do
not “second-guess officers’ real-time decisions from the
standpoint of perfect hindsight.” O’Doan, 991 F.3d at 1036.
Nor has the dissent provided a basis to deem unreasonable
the inferences Detective Alexander drew, based on his
training and experience. When evaluating officers’
reasonable suspicions, “the facts must be filtered through the
lens of the agents’ training and experience.” United States
v. Valdes-Vega, 738 F.3d 1074, 1079 (9th Cir. 2013) (en
banc). Especially in light of Terry, no clearly established
law prevented Detective Alexander from reasonably
believing that based on the suspicious conduct he observed,
Hopson and Jones were planning an armed robbery of the
gas station.
2
The dissent suggests that Detective Alexander’s reference to “criminal
activity” could have merely been to suspected marijuana use, Dissent 37,
but Detective Alexander did not notice the odor of marijuana until he
confronted Hopson.
3
Contrary to suggestions in the dissent, the issue here is simply whether
the degree of force used in connection with the stop was excessive (and
violated clearly established law). This case does not involve a claim of
wrongful arrest for lack of probable cause.
HOPSON V. ALEXANDER 17
C
The question then becomes whether it was clearly
established that the degree of force the detectives used in
response to the perceived threat was excessive under the
Fourth Amendment. The general standards for excessive
force tell us that the proper uses of force can include the very
types of force used here: pointing a gun at a suspect and
handcuffing him. See Alexander v. County of Los Angeles,
64 F.3d 1315, 1320 (9th Cir. 1995) (emphasis added).
Indeed, we have expressly held that “[i]t is well settled that
when an officer reasonably believes force is necessary to
protect his own safety or the safety of the public, measures
used to restrain individuals, such as stopping them at
gunpoint and handcuffing them, are reasonable.” Id.(emphasis added). The detectives thus argue that when
officers not unreasonably perceive the type of dangerous
threat suspected here, under Graham it is permissible to
point a gun at a suspect to secure the situation and ensure the
safety of those in the area, including that of the officers
themselves.
For our purposes, however, it is sufficient that the
general standards set forth in Graham and its progeny do not
clearly establish that the detectives’ use of force was
unlawful. The Supreme Court has been very clear: given the
often fact-bound features of excessive force claims, “police
officers are entitled to qualified immunity unless existing
precedent ‘squarely governs’ the specific facts at issue.”
Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam)
(quoting Mullenix, 577 U.S. at 13); see also, e.g., Brosseau,
543 U.S. at 201; Ventura v. Rutledge, 978 F.3d 1088, 1091
(9th Cir. 2020). The Graham standards for the most part
supply general rules of conduct; they are not typically a
prescription for what may be permissible in a specific case.
18 HOPSON V. ALEXANDER
The Supreme Court has thus clarified that the Graham
excessive force test does not “create clearly established law
outside an ‘obvious case.’” White v. Pauly, 137 S. Ct. 548,
552 (2017) (per curiam) (quoting Brosseau, 543 U.S. at
199).
There is no dispute here that what Detective Alexander
observed was sufficient to arouse suspicion. Even Hopson’s
counsel agreed at oral argument that “nobody is saying that
the officers could not have intervened.” The dissent, too,
agrees that some amount of intervention was warranted. But
when it comes to what that intervention could look like, as a
matter of clearly established law Graham did not, standing
alone, confine Detective Alexander to a menu of options less
forceful than the actions he took (which ultimately resulted
in no claimed physical injury to Hopson). Nor does Graham
clearly establish that Detective Alexander was prevented
from using the element of surprise, which has obvious
tactical advantages.
In brief, when Detective Alexander was observing
conduct that, in his training and experience, was indicative
of a potential imminent armed robbery, see Terry, 392 U.S.
at 28, the general legal standards we recited above did not
make what Alexander chose to do next “beyond debate”
under the Fourth Amendment. Wesby, 138 S. Ct. at 589(quoting al-Kidd, 563 U.S. at 741). Qualified immunity may
of course be denied if the constitutional violation was
“obvious.” See id. at 590 (quoting Brosseau, 543 U.S. at
199). But there is no suggestion this is such a case. See id.(noting that instances in which a violation of constitutional
HOPSON V. ALEXANDER 19
law are “obvious” without more specific case law are
“rare”).4
To overcome the detectives’ qualified immunity, then,
Hopson needs more specific case law that demonstrates the
unlawfulness of the detectives’ conduct under the “particular
circumstances” they confronted. Wesby, 138 S. Ct. at 589–
90 (quotations omitted). Hopson maintains that he has such
precedent. It is to a consideration of that case law that we
now turn.
III
Hopson focuses on three aspects of the detectives’
conduct that, in his view, were clearly prohibited under
existing precedent: (1) pointing a weapon at him; (2)
“forcefully” removing him from his vehicle and handcuffing
him; and (3) failing to announce that they were police
officers. But the cases Hopson cites are materially different
from this one. Hopson thus identifies no clearly established
law that would cause “every reasonable official” to
understand that any of these actions violate the Fourth
4
Hopson claims that the detectives did not actually believe he posed a
threat, relying primarily on the district court’s statement that the
detectives “have not pointed to any evidence in the record that
demonstrates that they believed, reasonably or otherwise, that Plaintiff
had a weapon or that he otherwise posed a threat to the safety of others
when Defendant Alexander approached Plaintiff’s vehicle.” But the
record contains an uncontradicted declaration from Detective Alexander
explaining that he did have such a belief. And as we noted, the district
court itself analogized this case to Terry, in which a detective reasonably
believed that individuals were casing a store in preparation for an armed
robbery. Regardless, the reasonableness of the detectives’ actions is a
“pure question of law” on which we do not give deference to the district
court. Scott, 550 U.S. at 381 n.8.
20 HOPSON V. ALEXANDER
Amendment in the circumstances of this case. Wesby, 138
S. Ct. at 590.
A
Hopson first claims that case law clearly establishes that
the detectives violated the Fourth Amendment when they
pointed their weapons at him. Hopson primarily relies on
three cases: Washington v. Lambert, 98 F.3d 1181 (9th Cir.
1996), Espinosa v. City of San Francisco, 598 F.3d 528 (9th
Cir. 2010), and Robinson v. Solano County, 278 F.3d 1007(9th Cir. 2002) (en banc). None of these cases, however, is
factually analogous enough to clearly establish that the
detectives’ specific conduct was unlawful.
We begin with Washington. In that case, police stopped
two Black men at gunpoint on the asserted belief that they
were suspects in a string of armed robberies. Washington,
98 F.3d at 1183. None of the robberies had taken place in
the area in which the suspects were located, and the most
recent robbery had occurred almost a week earlier. Id.Neither suspect fit the physical descriptions of the wanted
men, nor were they driving the type of vehicle that the
robbers had reportedly used. Id. at 1183–84. Officers
nonetheless followed the men from a fast-food restaurant to
a hotel, and, with a force seven officers strong, pointed their
guns at the men and handcuffed them. Id. at 1184. Police
released the men only once they realized these were not the
suspects for whom they were looking. Id. The men, a
magazine editor and a banking analyst, turned out to be
visitors to the Los Angeles area who were in town for a
Dodgers game. Id. at 1183.
Hopson argues that Washington put the detectives on
notice that it would be unlawful to exercise force without
first finding, based on specific information, that Hopson was
HOPSON V. ALEXANDER 21
resisting arrest or attempting to flee, that he was armed and
dangerous, that a violent crime had recently been committed
in the area, or that Hopson was about to commit a dangerous
crime. But Washington does not impose such a rigid
calculus, nor does it speak so clearly to the facts at hand.
Washington addressed a different question: the proper
framework for determining whether a police interaction
qualifies as a Terry stop or an arrest. Id. at 1185–92. We
held in Washington that the officers had effected an arrest
and that they lack probable cause to do so. Id. at 1192. We
did not decide whether the officers’ actions constituted
excessive force. And even then, and of more relevance here,
we did not create inflexible rules demarcating a stop from an
arrest. Instead, we explained that “whether the police action
constitutes a Terry stop or an arrest” is assessed “by
evaluating not only how intrusive the stop was, but also
whether the methods used were reasonable given the specific
circumstances.” Id. at 1185 (emphasis in original); see also
id. (“The relevant inquiry is always one of reasonableness
under the circumstances.” (quotation omitted)).
Hopson notes that in Washington, we stated that “all
people have a right to be free from the terrifying and
humiliating experience of being pulled from their cars at
gunpoint, handcuffed, or made to lie face down on the
pavement when insufficient reason for such intrusive police
conduct exists,” and that “police may not employ such
tactics every time they have an ‘articulable basis’ for
thinking that someone may be a suspect in a crime.” Id. at
1187. But this statement begs the question of when such
police conduct—including pointing a gun—may be
permissible. We have recognized that “the pointing of a gun
at someone may constitute excessive force, even if it does
not cause physical injury.” Tekle v. United States, 511 F.3d
22 HOPSON V. ALEXANDER
839, 845 (9th Cir. 2007). But Washington presumed what
our case law elsewhere makes clear: that gun-pointing is
permitted “when an officer reasonably believes force is
necessary to protect his own safety or the safety of the
public.” Alexander, 64 F.3d at 1320.
In Washington, the two men who were arrested “did
nothing immediately prior to or during their confrontation
with the police” to justify the officers’ conduct, and the
police, who were operating on an effectively baseless belief
that the men were suspects in a nearly week-old robbery, had
“no reason to believe that [the men] were about to commit
any crime.” 98 F.3d at 1190; see also id. at 1194 (Kozinski,
J., concurring in the judgment) (describing the facts of
Washington as “egregious”). Even if Washington were
transferable to the excessive force context, the facts at issue
in that case were considerably different than what we have
here, where Detective Alexander observed suspicious
conduct that led him to believe there was a threat of an armed
robbery. Washington therefore does not qualify as clearly
established law for purposes of the qualified immunity
inquiry in this case.
Hopson next points to our decision in Espinosa. See 598
F.3d at 537–39. In that case, officers entered a residence
after receiving a tip that it could be a drug house. Id. at 532.
Upon entry, the officers found a bloody shirt and one
resident with a knife. Id. at 532–33. Two officers then went
into the attic with their guns drawn, where they found
another individual, Asa Sullivan. Id. at 533. The officers
told Sullivan to put up his hands. Id. When he failed to do
so, they shot and killed him. Id. Sullivan was unarmed,
although both officers claimed they thought he was holding
something. Id.HOPSON V. ALEXANDER 23
We held that summary judgment was inappropriate on
the question of whether the gun-pointing constituted
excessive force. Id. at 537–38. We reasoned that “pointing
a loaded gun at a suspect, employing the threat of deadly
force, is use of a high level of force.” Id. at 537. That level
of force may not have been justified because Sullivan “had
not been accused of any crime,” he “did not present a danger
to the public,” he “could not escape from the attic,” and there
was overall a “low level of threat.” Id. at 537–38. Sullivan
was also not the reason the officers had forcibly entered the
residence in the first place. Id. at 537.
The facts of Espinosa are too different to clearly
establish that the detectives acted outside the law in pointing
guns at Hopson. Hopson attempts to analogize his situation
by arguing that like Sullivan, he had yet to commit a crime.
But Espinosa did not purport to create a bright-line rule that
officers can only exercise force after they find a weapon or
witness a crime already in progress—a rule of law that would
pose obvious problems for public safety. See George v.
Morris, 736 F.3d 829, 838 (9th Cir. 2013) (“If the person is
armed—or reasonably suspected of being armed—a furtive
movement, harrowing gesture, or serious verbal threat might
create an immediate threat.”). Because the facts of Espinosa
are sufficiently distinguishable from this case, Espinosa
cannot “squarely govern[]” here for qualified immunity
purposes. See Brosseau, 543 U.S. at 201.
Robinson, too, is materially distinct. The officers in that
case were investigating a mere misdemeanor that had
occurred earlier in the day. 278 F.3d at 1010, 1014. At the
time the officers pointed their weapons at the 64-year-old
suspect, he had already peacefully approached them,
introduced himself, and begun cooperating. Id. at 1010.
Here, by contrast, Detective Alexander believed Hopson’s
24 HOPSON V. ALEXANDER
associate was casing the convenience store and saw him
acting nervously and abnormally. These observations not
unreasonably led Alexander to suspect an armed robbery
was about to take place. See Terry, 392 U.S. at 28.
Given these factual distinctions, Robinson does not
“squarely govern” this case. Cf. Thompson v. Rahr, 885 F.3d
582, 588 (9th Cir. 2018) (granting qualified immunity in
gun-pointing case and distinguishing Robinson on the
ground that it did not “feature facts sufficiently similar to the
pattern we address here to put the constitutional
question beyond debate as required to defeat qualified
immunity”). Notably, Robinson itself granted qualified
immunity to the officers because the constitutional right that
had been violated was not clearly established at the time.
278 F.3d at 1015–16.
Hopson cites other “gun pointing” cases finding
excessive force, but they, too, involve materially different
circumstances. E.g., Tekle, 511 F.3d at 845–46 (suspect was
an unarmed, “barefoot, eleven-year-old” child outside his
home who cooperated with the police); Hopkins v.
Bonvicino, 573 F.3d 752, 776–77 (9th Cir. 2009) (officer
was investigating a misdemeanor and knew the suspect “was
not a threat to officer safety”); Thompson, 885 F.3d at 584,
587 (suspect had already been searched for weapons and was
under the officer’s control, but qualified immunity was held
to apply nonetheless).
Our case law makes clear that pointing a gun at a suspect
is not categorically out of bounds. See Alexander, 64 F.3d
at 1320. Other courts are in accord. See, e.g., Williams v.
City of Champaign, 524 F.3d 826, 828 (7th Cir. 2008) (“[I]f
you are a police officer with reason to believe there may be
an armed robber in a van you approach with utmost caution,
HOPSON V. ALEXANDER 25
which may include pointing a gun at the occupants.”);
Courson v. McMillian, 939 F.2d 1479, 1496 (11th Cir. 1991)
(“[I]t is not unusual for a law enforcement officer to have his
weapon drawn[] when approaching individuals suspected of
drug involvement.”). Indeed, in Alexander itself, we held
that officers did not violate clearly established law in
pointing guns at robbery suspects in the course of detaining
them, even though it turned out to be a case of mistaken
identity. 64 F.3d at 1318, 1320.5
Because we can find no authority that places the
unconstitutionality of the detectives’ conduct “beyond
debate” in the circumstances they confronted, we hold that
the detectives did not violate clearly established law when
they pointed their guns at Hopson. See Wesby, 138 S. Ct. at
589.
B
Hopson next argues that the detectives violated clearly
established law by using excessive force when removing him
from the car and arresting him. Specifically, Hopson alleges
that Alexander “forcefully removed” him from his vehicle,
yanked his left arm with “enough force to put [him] in a state
5
The dissent notes that in Alexander, we did deny summary judgment
on one of the plaintiffs’ claims. Dissent 48. But that part of our decision
considered whether it was reasonable for police to refuse to loosen the
handcuffs on a dialysis patient until his hands swelled up and turned blue,
causing injuries that persisted nine months later. 64 F.3d at 1323. That
portion of our decision is not germane to this case. What is relevant here
is Alexander’s holding that “[i]t is well settled that when an officer
reasonably believes force is necessary to protect his own safety or the
safety of the public, measures used to restrain individuals, such as
stopping them at gunpoint and handcuffing them, are reasonable.” Id. at
1320.
26 HOPSON V. ALEXANDER
of shock and make [him] think that [he] was being robbed,”
and “forcefully” handcuffed him. We hold that once again,
the detectives are entitled to qualified immunity.
As the Supreme Court has long recognized, “the right to
make an arrest or investigatory stop necessarily carries with
it the right to use some degree of physical coercion.”
Graham, 490 U.S. at 396. “Not every push or shove, even if
it may later seem unnecessary in the peace of a judge’s
chambers, violates the Fourth Amendment.” Id. at 396(internal quotation omitted); see also Demarest v. City of
Vallejo, 44 F.4th 1209, 1226 (9th Cir. 2022) (holding that an
officer did not violate the Fourth Amendment when she
forcefully removed a suspect from his car and handcuffed
him, even though the plaintiff argued the officer could have
used less force). Nor has Hopson identified factually
analogous authorities that establish “beyond debate” that the
detectives acted unlawfully in pulling him out of the car.
In most cases in which we have found that officers used
excessive force in the course of an arrest, the force used was
gratuitous or violent. See, e.g., Winterrowd v. Nelson, 480
F.3d 1181, 1182–83 (9th Cir. 2007) (officers pulled over a
man for driving with invalid license plates and knew that the
man had a shoulder injury, yet “forc[ed] him onto the hood
of the car,” “grabbed” his arm and “forced it up,” “appl[ying]
greater pressure” even as the suspect “screamed in pain”);
Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003)
(officers “forcibly threw [suspect] to the ground” when
investigating her for income tax violations); Santos v. Gates,
287 F.3d 846, 849–50, 853–54 (9th Cir. 2002) (officers
performed a take-down maneuver on the suspect, resulting
in broken vertebra and temporary paralysis); Palmer v.
Sanderson, 9 F.3d 1433, 1434–36 (9th Cir. 1993) (officers
pushed the suspect—an unarmed 67-year-old man who had
HOPSON V. ALEXANDER 27
recently suffered a stroke—“with such force that [he] fell
over sideways,” “fastened [his] handcuffs so tightly around
his wrist that they caused [him] pain and left bruises that
lasted for several weeks,” and ignored his plea to loosen the
handcuffs).
We have at times found less egregious police conduct
during arrests still to violate the Fourth Amendment. But in
these cases, the government interests at stake have been
correspondingly lower. For example, in Liberal v. Estrada,
632 F.3d 1064 (9th Cir. 2011), we found a police officer’s
use of force violated the Fourth Amendment because it
occurred “after [the plaintiff] had complied with [the
officer’s] requests” and after the officer checked his driver’s
license and license plate number and found “nothing
untoward.” Id. at 1079. The officer in Liberal had observed
the plaintiff “obeying all traffic laws,” had witnessed no
conduct suggesting that the plaintiff had violated or would
violate any law, and the “[p]laintiff did not pose an
immediate threat to anyone’s safety.” Id. at 1068, 1079.
With such minimal government interests at stake, the
officer’s use of force—“grabb[ing] [the plaintiff] by the
wrist, pull[ing] him out of the car, sp[inning] him around,
and . . . shov[ing] [him] against the door with enough force
to rock the car”—was unreasonable. Id. at 1069.
Likewise, in Hansen v. Black, 885 F.2d 642 (9th Cir.
1989), the suspect was taking out her garbage and complying
with the law at the time she was arrested. Id. at 643. Under
her version of the facts, police lacked probable cause to
arrest her. See id. at 644. We thus concluded that the
officers’ “rough and abusive” conduct toward her—which
required her to seek medical treatment for pain and bruises—
might constitute excessive force. Id. at 645.
28 HOPSON V. ALEXANDER
Here, in contrast, Hopson alleges only that he was
“forcefully” removed from his vehicle and “forcefully”
handcuffed. There is no suggestion that the detectives
physically injured Hopson when they extracted him from his
car and arrested him. The government’s interest in
investigating and preventing a potential armed robbery was
also substantially greater than the interests at issue in Liberal
and Hansen.
No clearly established law prevented the officers from
acting quickly and with moderate force to ensure that
Hopson was detained without incident. We cannot conclude
that controlling authority has clearly established beyond
debate that the amount of force used during Hopson’s arrest
was objectively unreasonable.
C
Finally, we reject Hopson’s argument that the detectives
violated clearly established law in failing to identify
themselves as law enforcement officers. Hopson claims that
the use of force was unreasonable because he did not know
whether Alexander and Grissom were officers arresting him
or criminals robbing him. Courts do consider “whether
officers gave a warning before employing the force” as one
factor in the excessive force analysis. Glenn v. Washington
County, 673 F.3d 864, 876 (9th Cir. 2011); see also Nelson
v. City of Davis, 685 F.3d 867, 882–83 (9th Cir. 2012). But
the issue here is not so much Detective Alexander’s failure
to warn as his alleged failure immediately to identify himself
as a police officer. On that score, Hopson has not identified
clearly established law concerning (1) when an officer must
identify himself as such before using the degree of force used
here, (2) what form that identification should take, and (3)
how the lack of verbal identification is to be weighed against
HOPSON V. ALEXANDER 29
other considerations. Even pre-force warnings are only
required “when feasible, if the use of force may result in
serious injury.” Glenn, 673 F.3d at 876 (quotation omitted).
Hopson has identified three unpublished decisions from
this circuit and two cases from other circuits in which
officers’ failure to identify themselves impacted the
excessive force balancing analysis. See Vlasak v. Las Vegas
Metro. Police Dep’t, 213 F. App’x 512, 514 (9th Cir. 2006);
Bryan v. Las Vegas Metro. Police Dep’t, 349 F. App’x 132,
135 (9th Cir. 2009); Willis v. City of Fresno, 520 F. App’x
590, 591 (9th Cir. 2013); Sledd v. Lindsay, 102 F.3d 282,
288 (7th Cir. 1996); Yates v. City of Cleveland, 941 F.2d 444,
447 (6th Cir. 1991).
But even if these cases fully supported Hopson, this
authority by its nature likely does not qualify as “controlling
authority or a robust consensus of cases of persuasive
authority.” Wesby, 138 S. Ct. at 589–90 (quotations
omitted); see also Sorrels v. McKee, 290 F.3d 965, 971 (9th
Cir. 2002) (“[I]t will be a rare instance in which, absent any
published opinions on point or overwhelming obviousness
of illegality, we can conclude that the law was clearly
established on the basis of unpublished decisions only.”);
Rico v. Ducart, 980 F.3d 1292, 1301 (9th Cir. 2020) (holding
that a “single published opinion” with different facts,
“repeated in one unpublished disposition” and “combined
with the other three cases from our sister circuits . . . cannot
form the basis for a robust consensus” (quotation omitted)).
Regardless, the cases that Hopson cites are materially
distinguishable. These cases for the most part involved
suspects who resisted arrest, and so whether a suspect’s
resistance was reasonable—and whether the officers’
ensuing use of force was justified—turned on whether the
30 HOPSON V. ALEXANDER
defendant knew that the people whom they were resisting
were law enforcement officers. Moreover, even though an
officer’s failure to identify himself can be a relevant factor
in the Fourth Amendment “reasonableness” analysis, no one
factor is considered in a vacuum. Other factors, such as the
“type and amount of force inflicted,” are still relevant in
deciding whether the exercise of force was unreasonable.
See Felarca, 891 F.3d at 817 (quotation omitted). And in
the cases that Hopson cites, the type and amount of force
differed materially from that at issue here. See Bryan, 349
F. App’x at 135 (police shot the suspect); Yates, 941 F.2d at
445 (same); Sledd, 102 F.3d at 284 (same); Willis, 520 F.
App’x at 591 (police shot suspect, killing him); Vlasak, 213
F. App’x at 514 (police wrestled the suspect to the ground).
Under the circumstances of this case, precedent does not
clearly establish that the detectives’ alleged failure to
identify themselves as police officers made their use of force
excessive.
D
For its part, the dissent approaches the second prong of
the qualified immunity analysis by evaluating whether the
law clearly establishes a right to be free of excessive force
when Hopson was “merely conversing” with Jones and
“posed no threat to the officers or to members of the public.”
Dissent 47, 50. As we have explained above, that is not a
tenable view of the facts. As a consequence, the dissent’s
analysis under the “clearly established” prong is misdirected.
The dissent focuses our attention on Andrews v. City of
Henderson, 35 F.4th 710, 714 (9th Cir. 2022), and
Blankenhorn v. City of Orange, 485 F.3d 463, 478–80 (9th
Cir. 2007). Dissent at 45–48. It is telling that Hopson’s
learned counsel cited neither of these cases in briefing before
HOPSON V. ALEXANDER 31
us. These cases involve very different facts than this one and
certainly do not clearly establish that the officers here used
excessive force.
In Andrews, detectives watched a suspected robber pass
through a metal detector and an x-ray machine at the door to
a courthouse, so they “knew that he was not armed.” 35
F.4th at 713, 717. This knowledge “mitigated” the “risk of
violence” that the suspect posed, so “the government’s
interest in using substantial force was minimal.” Id. at 716–
17. In addition, the suspect “was not exhibiting any
aggressive behavior, and there were no bystanders within his
close proximity when he exited the courthouse.” Id. at 717.
The officers nonetheless “lunged at” the suspect and
“tackled him to the ground,” “result[ing] in an acetabular
fracture of [the suspect’s] hip, which required two
surgeries.” Id. at 714.
Unlike in Andrews, the officers here did not know that
Hopson was unarmed. And, in fact, he was armed. Andrews
also involved someone suspected of a past crime, whereas
Detective Alexander perceived Hopson as about to commit
one. Nothing about Andrews clearly established whether the
officers acted unlawfully “in the particular circumstances”
they faced in the gas station parking lot. Wesby, 138 S. Ct.
at 590 (quotations omitted).
In Blankenhorn, meanwhile, police officers saw a man
in a crowd at the mall, and the officers recalled that mall
security had previously banned him from the premises. 485
F.3d at 468. Based on this suspicion of “misdemeanor
trespass,” the officers “gang-tackled” the man, punched him
several times, and placed hobble restraints on his ankles. Id.
at 478. We held that a jury could find the officers’ conduct
unreasonable “under th[e] circumstances,” since “the
32 HOPSON V. ALEXANDER
severity of the alleged crime, misdemeanor trespass, was
minimal.” Id. Blankenhorn does not “squarely govern[]”
the case at hand, Brosseau, 543 U.S. at 201, in which the
detectives not unreasonably suspected Hopson of engaging
in a much more serious crime.
The dissent also suggests that clearly established law
prohibited the force used here because there are factual
distinctions between this case and some of the cases we have
cited in our analysis, such as Wesby. Dissent 48–50. But for
the most part, the cases we have relied upon, Wesby
included, pertain to the standards that govern the qualified
immunity analysis or the Terry framework that, in this case,
presages it. The dissent’s mode of analysis is at odds with
our long-stated rule “[i]t is the plaintiff who ‘bears the
burden of showing that the rights allegedly violated were
clearly established.’” Shafer v. County of Santa Barbara,
868 F.3d 1110, 1118 (9th Cir. 2017) (quoting LSO, Ltd. v.
Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000)). There is no
analogous burden on § 1983 defendants to find factually on-
point cases clearly establishing the lawfulness of an officer’s
actions. Nor must § 1983 defendants come forward with
precedent showing that the unlawfulness of their conduct
was not clearly established.
IV
We appreciate that both sides have different perspectives
about the events giving rise to this case. In Hopson’s view,
although he may not have been permitted to possess a gun,
the detectives acted rashly in assuming that he and Jones
were planning an armed robbery and aggressively
confronting them in the way they did. In the detectives’
view, their conduct was not only constitutionally reasonable
but commendable, as they presciently surmised that Hopson
HOPSON V. ALEXANDER 33
was armed. We of course do not know what would have
happened next absent the officers’ intervention.
The parties’ competing perspectives underscore the
competing considerations at stake when law enforcement
officers approach a suspect. Police must be cautious not to
point guns at people in haste when the circumstances do not
warrant it. Such conduct can lead to accidents or violent
escalations that might not otherwise have occurred. It can
also under our precedents produce harm of a constitutional
magnitude, even when no physical injury results. At the
same time, police officers must have some latitude in relying
on their judgment and experience to anticipate criminal
conduct that may be about to occur. Officers are allowed
and expected to be proactive. And when they have a basis
for intervening, they are not inevitably required to use only
the most minimal force and hope for the best.
Though the proper balance between individual rights and
public safety is a worthy topic of public discourse, our role
here was a limited one. The doctrine of qualified immunity
requires that we not hold police officers to standards that fail
to appreciate the real-time nature of their decisions and the
sometimes ill-defined nature of Fourth Amendment law.
Our more circumscribed task in this case—and, indeed, our
only necessary task—was to determine whether any
constitutional violation was clearly established on these
facts. Because it was not, the judgment of the district court
is reversed, and the case is remanded for proceedings
consistent with this opinion. The parties shall bear their own
costs on appeal.
REVERSED AND REMANDED.
34 HOPSON V. ALEXANDER
RAWLINSON, Circuit Judge, dissenting:
I respectfully, but emphatically dissent. Viewing the
facts in the light most favorable to the plaintiff, as we must,
the conclusion is inescapable that DeJuan Hopson was
subjected to excessive force and that the officers involved
were not entitled to qualified immunity for that use of
excessive force. See Ames v. King Cnty., 846 F.3d 340, 347
(9th Cir. 2017).
I start with the facts, taken in the light most favorable to
Mr. Hopson. On January 25, 2018, before Mr. Hopson
arrived on the scene, Detective Alexander observed an
individual named Tommy Jones back into a parking spot,
“crane his neck” and “nervously” look around. Detective
Alexander was in an unmarked vehicle and was not wearing
a uniform. Jones changed parking spots several times, each
time “turn[ing] his body 180 degrees in the vehicle to get a
good look at his surroundings.” Although Jones never exited
his vehicle and no weapon was seen, Detective Alexander
believed that Jones intended to commit armed robbery of the
gas station.
After approximately fifteen minutes Mr. Hopson arrived
at the gas station and parked next to Jones. Jones exited his
vehicle and entered Hopson’s vehicle, where the two began
to converse.1
1
The majority opinion states that Detective Alexander observed Jones
and Mr. Hopson “exchange items,” Majority Opinion, p. 6, but this
observation does not construe the facts in the light most favorable to Mr.
Hopson, who asserted that the two were engaged in a private
conversation. And in view of Mr. Hopson’s assertion that the two were
only engaged in conversation, Detective Alexander’s statement that the
HOPSON V. ALEXANDER 35
According to Detective Alexander, once Mr. Hopson
arrived on the scene, his suspicion morphed from a potential
armed robbery to the more generic “engag[ing] in criminal
activity.” Detective Alexander called for backup and,
construing the facts in the light most favorable to Mr.
Hopson, a total of six officers converged on the scene, with
weapons drawn. According to Mr. Hopson, Detective
Alexander approached him “at gunpoint” and without any
warning, “provocation or resistance” on Mr. Hopson’s part,
his driver’s side door was opened and Detective Alexander
“placed his hand on [Mr. Hopson’s] left arm, grabbing it
with enough force to put [Mr. Hopson] in a state of shock
and make [him] think that [he] was being robbed.” Mr.
Hopson saw Officer Grissom “standing right in front of [Mr.
Hopson’s] vehicle with his gun pointed directly at [Mr.
Hopson].” Officer Grissom “forcefully placed [Mr. Hopson]
in handcuff[s] and verbally dared [Mr. Hopson] to make a
move in resistance to his actions.”
To summarize, taking the facts in the light most
favorable to Mr. Hopson: Mr. Hopson was sitting in his
vehicle conversing with another individual (Jones) when he
was forcefully yanked from his vehicle by his arm, forcefully
handcuffed, and confronted by six police officers, all of
whom had guns pointed at him, and one of whom “dared
[Mr. Hopson] to make a move.” Prior to being forcefully
two “exchange[d] items” is not undisputed. The same is true for the
detective’s statement that Jones retrieved something from his vehicle and
returned to Hopson’s vehicle. At best, this presents a factual dispute that
we may not resolve in this interlocutory appeal. See Cunningham v. City
of Wenatchee, 345 F.3d 802, 806-07 (9th Cir. 2003) (explaining that
“[i]nterlocutory appeals are not available when the appellate court is
required to resolve a fact-related dispute” (citation and internal quotation
marks omitted) (emphasis in the original).
36 HOPSON V. ALEXANDER
yanked from his vehicle by his arm, Mr. Hopson had no
knowledge that police officers were present. The officers
did not identify themselves in any way or provide any kind
of warning to Mr. Hopson. The criminal charges brought
against Mr. Hopson were dismissed for lack of probable
cause.
The majority discusses in some detail Mr. Hopson’s
criminal history and the results of a search of the vehicle
after Mr. Hopson was detained. See Majority Opinion, p. 7.
However, these facts have no place in our qualified
immunity analysis, which focuses on the facts in existence
when the force was used. See Rice v. Morehouse, 989 F.3d
1112, 1121 (9th Cir. 2021) (explaining that “[i]n evaluating
a Fourth Amendment claim of excessive force, we ask
whether the officers’ actions are objectively reasonable in
light of the facts and circumstances confronting them”)
(citation and internal quotation marks omitted) (emphasis
added); see also Shafer v. County of Santa Barbara, 868
F.3d 1110, 1116 (9th Cir. 2017) (same). Because the officers
were not “confronted” by the facts discovered after the use
of force, those facts cannot justify the amount of force used.
See id.The majority also relies on “the detectives’ suspicion of
a planned armed robbery” to support the amount of force
used. Majority Opinion, p. 13. There are two problems with
this theory. The first is that suspicion alone does not justify
the use of excessive force. See Shafer, 868 F.3d at 1116(observing that in excessive force cases, the question of
whether officers’ actions are objectively reasonable is
decided “without regard to their underlying intent or
motivation”) (citation omitted). Suspicion justifies an
investigatory stop, not excessive force. See Terry v. Ohio,
392 U.S. 1, 15 (1968) (approving “legitimate and restrained
HOPSON V. ALEXANDER 37
investigative conduct”) (emphasis added); see also id. at 6-7(noting that the officer “approach[ed] the three men,
identified himself as a police officer and asked for their
names,”). In Terry, it was only after the suspects were
nonresponsive to the officer’s question that he “grabbed . . .
Terry, spun him around . . . and patted down the outside of
[Terry’s] clothing.” Id. at 7. In this case, Detective
Alexander never identified himself as a police officer and
never asked a question before proceeding to the use of a
substantial degree of force, including guns. Terry does not
support these actions. See id. at 6-7.
The second problem with this theory is that after Mr.
Hopson arrived on the scene, Detective Alexander no longer
expressed a suspicion that an armed robbery was about to
occur. Rather, he stated in his declaration that “it was clear”
that “Jones and Hopson were engaged in criminal activity.”
(emphasis added). Detective Alexander made absolutely no
reference to armed robbery at this point. The majority posits
that “[i]n context, it is clear that the ‘criminal activity’ to
which Detective Alexander was referring was the only
criminal activity he had mentioned in his declaration; the
planning of an armed robbery.” Majority Opinion, pp. 15-
16. But that inference is far from clear, especially in view of
the majority’s reference to Detective Alexander’s belief that
Mr. Hopson and Jones “exchange[d] items” and to “the
marijuana odor coming from the car.” Majority Opinion, pp.
6-7. In context, it is equally “clear” that Detective Alexander
suspected a crime involving marijuana. See id. At best, a
question of fact is presented, which cannot be resolved in
this interlocutory appeal. See Cunningham, 345 F.3d at 806-
07. And the record confirms that the crime suspected by
Detective Alexander after Mr. Hopson’s arrival was indeed
38 HOPSON V. ALEXANDER
unspecified. Otherwise, there would be no need to resort to
context and inference.2
The majority also notes that “[n]othing in Detective
Alexander’s declaration indicates that he no longer believed
an armed robbery was in the works or that his suspicions had
abated.” Majority Opinion, p. 16. But the converse is also
true: Nothing in Detective Alexander’s declaration indicates
that he continued to believe an armed robbery was in the
works or that his suspicions regarding a pending armed
robbery continued.
At bottom, Mr. Hopson and Jones posed no “immediate
threat” to the public, when the facts are construed in the light
most favorable to Mr. Hopson. Felarca v. Birgeneau, 891
F.3d 809, 817 (9th Cir. 2018) (citation omitted) (emphasis
added). After all, if the threat were immediate, Detective
Alexander would not have had time to call for backup and
wait for the backup to arrive. And although officers are not
prevented from “using the element of surprise,” Majority
Opinion, p. 18, officers may not use the element of surprise
to employ excessive force. See Ames, 846 F.3d at 348(emphasizing that “[u]nder the Fourth Amendment, officers
may use only such force as is objectively reasonable under
the circumstances”) (citation and internal quotation marks
omitted).
2
The majority makes the point that Detective Alexander only noticed the
marijuana smell once he confronted Mr. Hopson. See Majority Opinion,
p. 16, n.2. But the “exchange [of] items” and “the marijuana odor” are
part of the “context” on which the majority opinion relies. The
declaration said what it said, and the fact that the majority and the dissent
are using context to fill in the gaps solidifies the existence of a factual
dispute that cannot be resolved at this stage of the proceedings. See
Cunningham, 345 F.3d at 806-07.
HOPSON V. ALEXANDER 39
I readily acknowledge that when reviewing claims of
excessive force, we must remain mindful that police officers
are often presented with situations where split-second
decisions must be made “in circumstances that are tense,
uncertain, and rapidly evolving.” Graham v. Connor, 490
U.S. 386, 397 (1989). However, no split-second
decisionmaking was required under the circumstances of this
case, when Mr. Hopson and Jones were completely unaware
of the presence of the officers. In addition, Detective
Alexander had time to call for backup and wait for their
arrival, a clear indication that no urgency existed.
My esteemed colleagues in the majority accuse me of
misapprehending the record. See Majority Opinion, p. 14.
Not so. As governing precedent dictates, I construe the
record in favor of Mr. Hopson’s version of events rather then
in favor of the officer’s version of events. See Cunningham,
345 F.3d at 807-08. For example, the majority takes issue
with my repeating Mr. Hopson’s statement that he and his
friend were sitting in a car conversing, in view of Detective
Alexander’s statement that they were doing more than
conversing. But Detective Alexander’s statement creates a
factual dispute, which precludes resolution of the qualified
immunity question in this limited interlocutory appeal. See
id. at 806-07.3
3
The existence of a dispute is made even more apparent by the majority’s
statement that “Hopson has not contested that he and Jones exchanged
items or that Jones went back to his vehicle to exchange something.”
Majority Opinion, p. 15. In the qualified immunity inquiry, Hopson has
no burden to “contest” any version of the facts advanced by the officers.
See Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003). Rather,
all facts are construed in his favor. See id. at 1184 (concluding that the
district court “failed to view the evidence in the light most favorable to
40 HOPSON V. ALEXANDER
When analyzing claims of excessive force under
Graham, we consider the following factors:
1. “[T]he severity of the crime at issue”;
2. “[W]hether the suspect poses an immediate threat
to the safety of the officers or others”;
3. “[W]hether [the suspect] is actively resisting
arrest or attempting to evade arrest by flight.”
Felarca, 891 F.3d at 817 (quoting Graham, 490 U.S. at 396)
(emphasis added).
“We may also consider the availability of less intrusive
alternatives to the force employed and whether warnings
were given.” Id. (citation omitted).
Of the factors we are to consider in assessing whether the
force used by the officers was excessive “the most important
[factor] is whether the suspect posed an immediate threat to
the safety of the officers or others.” Id. (citation omitted)
(emphasis added).
Application of these factors to the case before us leads to
the inescapable conclusion that the force used against Mr.
Hopson was excessive. Starting with the most important
factor, and viewing the evidence in the light most favorable
to Mr. Hopson, the record does not contain facts indicating
the existence of an immediate threat to the officers or to
anyone else. See id. Mr. Hopson and Jones were sitting in
a car conversing. No weapons were visible and neither
occupant of the vehicle resisted arrest or attempted to
the plaintiff” when it relied on “uncontradicted” declarations from the
officers to grant qualified immunity) (citation omitted).
HOPSON V. ALEXANDER 41
impede the officers in any way. Under these facts, this “most
important” factor weighs in favor of a finding of excessive
force. Id.; see also Gravelet-Blondin v. Shelton, 728 F.3d
1086, 1091-92 (9th Cir. 2013) (weighing factors and
concluding that excessive force was used after construing the
facts in favor of the plaintiff).
Turning to the other factors viewed in the light most
favorable to Mr. Hopson, the conclusion that the force used
was excessive becomes even clearer. At the time Detective
Alexander forcefully yanked Mr. Hopson from his vehicle,
the detective had articulated that he only suspected Mr.
Hopson and Jones of being “engaged in criminal activity,”4
without any greater specificity. With no indication in the
record that a crime involving a potential use of force was
being committed or threatened, this factor weighs in favor of
a finding that excessive force was used.5 See id.Viewing the evidence in the light most favorable to Mr.
Hopson, it is indisputable that neither Mr. Hopson nor Jones
“actively” resisted arrest or “attempt[ed] to evade arrest by
flight.” Felarca, 891 F.3d at 817 (citation omitted).
According to Mr. Hopson, one of the officers “dared [Mr.
4
Before Mr. Hopson arrived, Detective Alexander articulated his belief
that Jones (not Mr. Hopson) was preparing to commit an armed robbery
of the gas station. However, this belief was not repeated after Mr.
Hopson’s arrival.
5
It is questionable whether Detective Alexander’s unsubstantiated
speculation that Mr. Hopson and his companion were “engaged in
criminal activity” is even a fact for purposes of our analysis. See Illinois
v. Wardlow, 528 U.S. 119, 123-24 (2000) (emphasizing that “[t]he
officer must be able to articulate more than an inchoate and
unparticularized suspicion or hunch of criminal activity”) (quoting
Terry, 392 U.S. at 27) (internal quotation marks omitted).
42 HOPSON V. ALEXANDER
Hopson] to make a move in resistance to [the officer’s]
actions.” This factor weighs strongly in favor of a
determination that excessive force was used. See Gravelet-
Blondin, 728 F.3d at 1091-92.
Finally, we may consider “the availability of less
intrusive alternatives to the force employed and whether
warnings were given.” Felarca, 891 F.3d at 817 (citation
omitted). It is undisputed that no warnings were given, and
the existence of a less intrusive alternative is embodied in
the seminal Terry case, which authorizes officers to conduct
an investigatory stop when there is a reasonable suspicion
that criminal activity is afoot, but no probable cause to
support a conclusion that a specific crime has been or is
about to be committed. See 392 U.S. at 20 (clarifying that
the court was not addressing whether probable cause
existed). The officers do not argue that probable cause
existed to detain Mr. Hopson. But they, unfortunately,
skipped the investigatory stop, which would have been
justified, and proceeded to detention and the use of force,
which were not justified under the facts viewed in the light
most favorable to Mr. Hopson. Because no warnings were
given before Mr. Hopson was forcefully yanked from his
vehicle at gunpoint and because a Terry stop was a less
intrusive alternative available to the officers, this factor
supports the conclusion that the officers used excessive
force. See Andrews v. City of Henderson, 35 F.4th 710, 717-
18 (9th Cir. 2022).
So every factor that we and the Supreme Court have
articulated to assist in our determination of whether
excessive force was used supports the inescapable
conclusion in this case that the force used against Mr.
Hopson was indeed excessive.
HOPSON V. ALEXANDER 43
I am well aware that the factors set forth by our court and
the Supreme Court should not be applied in a mechanical
manner, and I have not done so. Rather, I applied the factors
to the specific facts of this case, construed in the light most
favorable to Mr. Hopson. As mentioned previously, there
was no split-second decisionmaking that would temper our
application of the applicable factors, or any other exigent
circumstances that would ameliorate the use of excessive
force in this case. See e.g., Ames, 846 F.3d at 349(describing “a rapidly escalating situation”).6
I am not persuaded that cases discussing Terry and its
progeny may be substituted for application of the factors set
forth by our court and the Supreme Court to assess whether
the amount of force used in this case was excessive. Even
so, those cases contain facts that are nowhere close to the
facts of this case, where force was used against Mr. Hopson
and Jones when they were merely conversing in a vehicle.
For example, in Wardlow, the Supreme Court addressed
a “stop and frisk” situation, not a circumstance involving a
suspect subjected to force, including the pointing of
weapons. See 528 U.S. at 121 (noting that the officer
“conducted a patdown search for weapons”). Indeed the
Supreme Court cited Terry, rather than excessive force cases
in concluding that “an officer may, consistent with the
Fourth Amendment conduct a brief, investigatory stop when
the officer has a reasonable, articulable suspicion that
criminal activity is afoot.” Id. at 123 (citing Terry, 392 U.S.
at 30) (emphasis added). Nothing in this language supports
the level of force used against Mr. Hopson.
6
Tellingly, the majority never applies these factors to the facts of this
case.
44 HOPSON V. ALEXANDER
Under Wardlow and Terry, Detective Alexander and the
other officers were authorized to conduct an investigation.
But that is not what they did. They skipped past the
investigation and proceeded directly to the use of force
including the pointing of weapons. See Wardlow, 528 U.S.
at 121 (noting that the officer “conducted a protective
patdown search for weapons”).7
Because Detective Alexander and the other officers
proceeded directly to the use of force, we must apply the
analysis set forth by the Supreme Court and applied in this
Circuit to determine if the force used was excessive. See
Graham, 490 U.S. at 396; see also Felarca, 891 F.3d at 817.
Having done so, and with all applicable factors weighing in
favor of a conclusion that excessive force was used, I
proceed to a discussion of whether the right to be free of the
use of excessive force is clearly established when there is no
probable cause to believe a crime has been committed, and
the suspect poses no immediate threat to himself, the
officers, or members of the public. In this circumstance, our
precedent clearly establishes that the use of excessive force
violates the individual’s constitutional rights.
In making the determination of whether a principle of
law is clearly established, we look to cases with similar (not
identical) facts. See District of Columbia v. Wesby, 138 S.
Ct. 577, 590 (2018) (“stress[ing] the need to identify a case
where an officer act[ed] under similar circumstances”)
(citations and internal quotation marks omitted) (emphasis
added). Contrary to the majority’s reading of our precedent,
7
The majority’s continued reliance on Terry to justify a non-Terry
encounter finds no support in excessive force precedent. See e.g.
Felarca, 891 F.3d at 817 (setting forth the factors to be weighed in an
excessive force analysis); see also Graham, 490 U.S. at 396 (same).
HOPSON V. ALEXANDER 45
I view our precedent as clearly establishing use of force as
excessive when officers confront a suspect that presents no
threat to the safety of the officers or to the safety of the
public.
Our recent decision in Andrews affirmed a similar denial
of a motion for summary judgment predicated on qualified
immunity. See 35 F.4th at 713. In that case, detectives had
probable cause to arrest Andrews for armed robberies. See
id. They followed Andrews to the municipal courthouse.
See id. Because Andrews was required to go through a metal
detector before entering the courthouse, detectives were
aware that he was unarmed. See id. When Andrews
reemerged from the courthouse, two detectives slowly
approached him without identifying themselves. See id.
With no provocation or warning, one of the detectives
“lunged and tackled [Andrews] to the ground.” Id. at 714.
The second detective “landed on top” of Andrews and the
first detective, remaining there until Andrews was
handcuffed. Id.
Even though the officers had probable cause to arrest
Andrews for armed robbery, we concluded that “the
government’s interest in using substantial force was
minimal.” Id. at 716. We reasoned that we must consider
“the full context that the officers faced, including that
Andrews was not engaged in any violent or nonviolent
criminal conduct when he was tackled without warning by
the detectives.” Id. at 716-17. We also noted that the
evidence in the record did not indicate that Andrews
“otherwise posed a threat to the officers or members of the
public.” Id. at 717. We noted that Andrews “was not
exhibiting any aggressive behavior, and there were no
bystanders within his close proximity.” Id. “And because
Andrews did not know the detectives’ identities before they
46 HOPSON V. ALEXANDER
tackled him, there is no dispute that he was not resisting
arrest or attempting to flee.” Id. Given these facts, we
concluded that “the nature of Andrews’s suspected crime
[armed robbery] [did] not establish a strong governmental
interest in using significant physical force against him.” Id.
We emphasized that “the serious nature of a suspected crime
does not necessarily give rise to a strong governmental
interest in the use of significant physical force.” Id. (citation
omitted) (emphasis in the original). Rather, “[o]ur precedent
requires that we focus on the immediate threat of harm. That
is, we consider the danger a suspect poses at the time force
is applied.” Id. (citations and internal quotation marks
omitted) (emphases in the original). We reiterated that
“although Andrews was suspected of a serious crime,
viewing the evidence in his favor, . . . any immediate threat
to safety was minimal, [and] the nature of the crime at issue
provide[d] little, if any, basis for the officers’ use of physical
force.” Id. at 717-18 (citation and internal quotation marks
omitted).
We then proceeded to our discussion of whether the
constitutional right asserted was clearly established. See id.
at 718. We cited our prior decision of Blankenhorn v. City
of Orange, 485 F.3d 463 (9th Cir. 2007) and other similar
cases in concluding that the detectives involved in the
“surprise takedown” of Andrews had “ample notice” that
their actions “violated Andrews’s Fourth Amendment
rights.” Id. at 720. We determined that “it was clearly
established before the events of this case [in 2017] that the
Fourth Amendment prohibits multiple officers from
physically tackling a relatively calm suspect without
providing any warning where the suspect is not posing an
immediate danger to anyone, resisting arrest, or trying to flee
HOPSON V. ALEXANDER 47
unless the officers first attempt a less intrusive means of
arrest.” Id. (citation and internal quotation marks omitted).
The similarity between the facts of this appeal and those
in Andrews is undeniable. If anything, the facts in favor of
qualified immunity were stronger in Andrews because
officers had probable cause to arrest Andrews for armed
robbery. See id. at 713. In contrast here, although Detective
Alexander expressed a “belief” that Jones was about to
engage in armed robbery, by the time Mr. Hopson arrived on
the scene, the “belief” had shifted to the observation that the
two individuals “were engaged in [some unspecified]
criminal activity,” and nothing close to probable cause
existed.
As in Andrews, viewed in the light most favorable to Mr.
Hopson, he posed no threat to the officers or to members of
the public. See id. at 717. Mr. Hopson “was not exhibiting
any aggressive behavior,” and “there is no dispute that he
was not resisting arrest or attempting to flee.” Id. Thus, as
in Andrews, at the time the force [was] applied, id., Mr.
Hopson did not pose an “immediate threat of harm.” Id.
(emphases in the original). Mr. Hopson was yanked from
his car forcefully and at gunpoint, and forcefully handcuffed
without any advance warning. As in Andrews, our prior
precedent gave “ample notice” that this “surprise takedown”
violated Mr. Hopson’s right to be free from such significant
force under these circumstances. Id. at 720.
The Blankenhorn case cited in Andrews was deemed
sufficiently similar to the facts in Andrews because “[in]
both cases, the suspects posed no immediate threat to the
officers or public safety when they were arrested.” Id. at 719
(emphasis in the original). And, we noted in Andrews,
“other than the nature of the suspected crime, the facts of this
48 HOPSON V. ALEXANDER
case [Andrews] are either analogous to or more favorable to
Andrews than the facts in Blankenhorn.” Id. In turn, taking
the facts in the light most favorable to Hopson, Hopson’s
case is even more favorable. The officers had no probable
cause to believe Hopson had committed any crime, there was
no immediate threat of violence to the officers or to the
public, and Hopson did not resist in any way, or attempt to
flee. Under these facts, it was clearly established under
Blankenhorn and Andrews that the “Fourth Amendment
prohibits” use of anything other than “non-trivial force”
without warning when “the suspect is not posing an
immediate danger to anyone, resisting arrest, or trying to flee
unless the officers first attempt a less intrusive means of
arrest.” Id. at 719-20.
Our decision in Alexander v. County of Los Angeles, 64
F.3d 1315 (9th Cir. 1995) does not support a grant of
qualified immunity in this case. Indeed, the portion of the
decision addressing excessive force reversed summary
judgment in favor of the officers. See id. at 1323. We
concluded that “it cannot be said as a matter of law that the
officers’ use of force was reasonable” when the suspect “was
slammed against a car, his legs kicked apart, and . . . he was
carried and pushed into the back of the police car.” Id. at
1322-23. Neither does the Supreme Court’s decision in
Wesby support a determination of qualified immunity for the
officers who used excessive force against Hopson. For
starters, Wesby involved a claim of false arrest rather than
one of excessive force. See 138 S. Ct. at 584. Consequently,
the dispositive issue was whether the officers had probable
cause to arrest partygoers who were partying in a house they
had no permission to enter. See id. at 583-84. After
concluding that the officers had “probable cause to believe
the partygoers knew they did not have permission to be in
HOPSON V. ALEXANDER 49
the house,” id. at 588, the Supreme Court reversed the D.C.
Circuit’s denial of qualified immunity. See id. at 593. In
doing so, the Supreme Court emphasized “the circumstances
with which the officers were confronted,” and the “lack of
similar circumstances” in existing cases addressing probable
cause. Id. at 591 (citations and alteration omitted).
The Supreme Court observed that “[t]he officers found a
group of people in a house that the neighbors had identified
as vacant, that appeared to be vacant, and that the partygoers
were treating as vacant. The group scattered, and some hid,
at the sight of law enforcement. Their explanations for being
at the house were full of holes. The source of their claimed
invitation admitted that she had no right to be in that house,
and the owner confirmed that fact.” Id. In light of these
damning facts, the Supreme Court concluded that even if
“the officers lacked actual probable cause to arrest the
partygoers, the officers are entitled to qualified immunity
because they reasonably but mistakenly concluded that
probable cause was present.” Id. (citation, alterations and
internal quotation marks omitted). No similar argument can
be made for the officers who used force against Hopson
because they did not conclude, mistakenly or otherwise, that
probable cause existed to arrest Hopson. And no similar
damning facts informed the decision to use force against
Hopson because, unlike the officers in Wesby, the officers
who used force against Hopson never conducted any
investigation before proceeding to yank him from his vehicle
at gunpoint and forcefully handcuff him. In sum, Wesby
does not present “similar circumstances,” id., and therefore
provides no basis for a grant of qualified immunity to the
officers who used excessive force against Hopson. See id.
There simply are no “similar circumstances” between the
facts and circumstances in the Wesby case and the facts and
50 HOPSON V. ALEXANDER
circumstances leading to the use of excessive force against
Hopson.
The same lack of similar circumstances exists for the
case of Demarest v. City of Vallejo, 44 F.4th 1209, 1213,
1225 (9th Cir. 2022) (addressing whether an officer
“violated the Fourth Amendment by using excessive force in
effectuating [an] arrest” at a sobriety checkpoint after
Demarest “declined an officer’s repeated demands to show
his license.”).
Finally, the majority mentions that our precedent
denying qualified immunity mostly involves cases where the
force used by the officers was “gratuitous or violent.”
Majority Opinion, p. 26. I agree. And under this standard,
the officers who used force against Hobson are not entitled
to qualified immunity because the force used against Hopson
was both gratuitous and violent. See Andrews, 35 F.4th at
720. In sum, under the facts of this case, viewed in the light
most favorable to Hopson, the officers violated clearly
established law when they forcefully yanked Hopson from
his vehicle at gunpoint without warning, and forcefully
handcuffed him, when he was merely conversing with Jones
and posed no immediate threat to the officers or to the public.
See id. Because the officers who used this gratuitous and
violent excessive force against Hopson were not entitled to
qualified immunity, I would affirm the district court’s
judgment denying qualified immunity.