Timothy Nelson v. City of Davis , 685 F.3d 867 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY C. NELSON, 
Plaintiff-Appellee,
v.
CITY OF DAVIS; CALVIN HANDY;
MICHAEL MASON, Sergeant; JAVIER
BARRAGAN, Officer; BRANDON
JONES, Officer; CALVIN CHANG, No. 10-16256
Officer; M. GARCIA, Officer,
individually; DOES, 1-100,  D.C. No.
2:05-cv-01193-
Defendants,
MCE-KJM
and
JAMES HYDE, individually and in
his official capacity as Chief of
Police for the City of Davis; JOHN
WILSON, Sergeant, individually and
in his official capacity as a
Sergeant for the City of Davis,
Defendants-Appellants.

7959
7960 NELSON v. CITY OF DAVIS
TIMOTHY C. NELSON, 
Plaintiff-Appellee,
v.
CITY OF DAVIS; JAMES HYDE,
individually and in his official
capacity as Chief of Police for the
City of Davis; JOHN WILSON,
Sergeant, individually and in his No. 10-16257
official capacity as a Sergeant for
the City of Davis; CALVIN HANDY;  D.C. No.
2:05-cv-01193-
MICHAEL MASON, Sergeant; JAVIER MCE-KJM
BARRAGAN, Officer; BRANDON
JONES, Officer; M. GARCIA,
Officer, individually; DOES, 1-00,
Defendants,
and
CALVIN CHANG, Officer,
Defendant-Appellant.

NELSON v. CITY OF DAVIS 7961
TIMOTHY C. NELSON, 
Plaintiff-Appellee,
v.
CITY OF DAVIS; JAMES HYDE,
individually and in his official
capacity as Chief of Police for the
City of Davis; JOHN WILSON,
Sergeant, individually and in his No. 10-16258
official capacity as a Sergeant for D.C. No.
the City of Davis; MICHAEL  2:05-cv-01193-
MASON, Sergeant; BRANDON JONES, MCE-KJM
Officer; CALVIN CHANG, Officer; OPINION
DOES, 1-100,
Defendants,
and
JAVIER BARRAGAN, Officer; CALVIN
HANDY; M. GARCIA, Officer,
individually,
Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted
October 13, 2011—San Francisco, California
Filed July 11, 2012
Before: Betty B. Fletcher, Stephen Reinhardt, and
A. Wallace Tashima, Circuit Judges.
Opinion by Judge Reinhardt
NELSON v. CITY OF DAVIS 7965
COUNSEL
John A. Whitesides (argued), Sacramento, California, for
defendants-appellants James Hyde and John Wilson.
Don Willenburg (argued), Michael T. Lucey, Mark S. Posard,
San Francisco, California, for defendants-appellants Javier
Barragan, Mary Garcia, and Calvin Handy.
Kelli M. Kennaday, Kim Johnston, Sacramento, California,
for defendant-appellant Calvin Chang.
Adante D. Pointer (argued), John L. Burris, Oakland, Califor-
nia, for the plaintiff-appellee.
OPINION
REINHARDT, Circuit Judge:
Timothy Nelson, a former student of the University of Cali-
fornia at Davis (“U.C. Davis”), suffered permanent injury
when he was shot in the eye by a pepperball projectile fired
from the weapon of a U.C. Davis officer when U.C. Davis
and City of Davis police attempted to clear an apartment com-
plex of partying students. Officers shot pepperball projectiles
in the direction of Nelson and his friends as the students stood
7966 NELSON v. CITY OF DAVIS
in the breezeway of the apartment complex, attempting to
leave the party and awaiting instruction from the officers. The
officers did not provide any audible warning prior to shooting
towards the unarmed and compliant students, and never
informed the young partygoers how to appropriately extricate
themselves from the apartment complex in order to avoid
becoming the target of police force. Formal complaints
regarding the officers’ use of force were filed with both
departments on Nelson’s behalf. After the complaints failed to
result in a satisfactory investigation into police conduct Nel-
son filed suit in district court alleging, among other things,
that his Fourth Amendment rights had been violated.1
The defendants moved for summary judgment. After the
district court’s denial of their motion, U.C. Davis officers
Barragan, Chang and Garcia, as well as Chief Handy from
U.C. Davis and Sgt. Wilson and Chief Hyde from the City of
Davis, appealed the portion of the district court’s order deny-
ing them qualified immunity for their conduct on the night of
the shooting. This appeal requires us to determine whether the
defendants violated Nelson’s constitutional right to be free of
unreasonable seizure and whether the contours of that right
were sufficiently established that a reasonable officer would
have been aware that the conduct was unconstitutional. We
conclude that the defendants’ actions amounted to an uncon-
stitutional seizure of Nelson. Moreover, we hold that the law
at the time of the incident should have placed the defendants
on notice that the shooting of the pepperballs under the cir-
cumstances was an act of excessive force, thus precluding a
judgment of qualified immunity.
1
Because we are reviewing a denial of summary judgment, to the extent
the parties disagree as to relevant facts “we view the evidence in the light
most favorable to [Nelson,] the nonmoving party, and accept the version
of all disputed facts most favorable to him.” Drummond ex rel. Drummond
v. City of Anaheim, 343 F.3d 1052, 1054 n. 1 (9th Cir. 2003).
NELSON v. CITY OF DAVIS 7967
BACKGROUND
On April 16, 2004, approximately 1,000 people congre-
gated at the Sterling Apartment complex in Davis, California
for what was described by one participant as “the biggest
party in history,” for the annual Picnic Day festivities at U.C.
Davis. U.C. Davis student Timothy Nelson was among the
attendees. Due to the size of the party, traffic on Cantrill
Drive, the street on which the apartment complex was located,
became gridlocked and partygoers began to park illegally.
The City of Davis police station is also located on Cantrill
Drive a short distance from the apartment complex. When
officers noticed the traffic violations and congestion on Can-
trill Drive, Sgt. John Wilson instructed them to issue parking
tickets to vehicles illegally parked. Officers eventually moved
into the party to begin citing individual students for underage
drinking. Once officers decided that they wanted a basis upon
which to disperse the crowd, Wilson contacted the owner of
the apartment complex and reported his observations, which,
in addition to the large number of attendees and the underage
drinking, included seeing individuals rocking a car and hear-
ing bottles breaking. In response to this report, the owner
requested that Wilson order non-residents to leave the com-
plex.
Wilson and the other officers present began individually
informing those around the fringes of the crowd that they
were trespassing and that it was necessary for them to leave.
Finding this method ineffective to disperse the nearly 1,000
partygoers, Wilson directed some of his officers to return to
the station and to come back to the party in a police vehicle,
which he hoped would have the effect of motivating party-
goers to depart of their own volition. This strategy proved
unsuccessful, as the police vehicle was soon overwhelmed by
the crowd, including some individuals who threw bottles at
the vehicle. Officers cleared a path for the police car by foot
so that they could leave the complex and return to the station
to regroup. After requesting and receiving backup from vari-
7968 NELSON v. CITY OF DAVIS
ous law enforcement agencies including the U.C. Davis Police
Department, 30 to 40 officers assembled in riot gear at the
southwest corner of the apartment complex and prepared to
disperse the crowd. Defendants, U.C. Davis Officers Barra-
gan, Chang and Garcia, were among these officers and were
armed with pepperball guns. Pepperball guns are, in essence,
paintball guns that fire rounds containing oleoresin capsicum
(“OC”) powder, also known as pepper spray. These rounds
are fired at a velocity of 350 to 380 feet per second, Nelson
v. City of Davis, 571 F.3d 924, 926 n.1 (9th Cir. 2009), with
the capacity to fire seven rounds per second. They break open
on impact and release OC powder into the air, which has an
effect similar to mace or pepper spray. Pepperballs therefore
combine the kinetic impact of a projectile with the sensory
discomfort of pepper spray.
Defendants contend that, upon entering the complex, offi-
cers issued a verbal order to disperse, but acknowledge that
they lacked any means of amplifying their voices above the
raucous noise of the party, and, in fact, had to raise the visors
on their helmets to communicate with each other at close
range. The officers formed a skirmish line and moved
through the crowd giving dispersal orders, but the majority of
the crowd neither heard the order nor dispersed. The officers
formed a second skirmish line, and prepared again to disperse
the crowd. This time, the officers armed with pepperball guns
assembled under Wilson’s command in front of the others.
Their purpose was to use their weapons in order to “disperse”
the remaining students and make way for the advancing “skir-
mish line.”
The officers gathered in front of a breezeway in the apart-
ment complex that was described as a “very narrow and con-
fined space.” A group of fifteen to twenty persons had
congregated in this breezeway on the ground floor, including
Nelson and his friends. The students were attempting to leave
the party but the police blocked their means of egress and did
not provide any instructions for departing from the complex.
NELSON v. CITY OF DAVIS 7969
The students testified in their depositions that they stood in
the breezeway awaiting instructions from the police. At vari-
ous times they called out to the police, asking the officers to
inform them what they wanted the students to do, and repeat-
edly raised their hands to show their willingness to comply.
The students were disturbed by the presence of the police in
full riot gear, and some of Nelson’s female companions began
to cry. Although there were scattered bottles being thrown
throughout the complex and the upper levels of the breeze-
way, officers testified that no one from Nelson’s group threw
bottles at the police. Defendants claim that they warned the
congregants to disperse, but the students did not hear any
commands until after shots had already been fired. When the
partygoers failed to disperse, Wilson ordered his team to “dis-
perse them,” at which point Barragan, Chang and Garcia shot
pepperballs towards Nelson’s group from a distance estimated
by various parties to have been 45 to 150 feet away.
A pepperball launched from one of the officers’ guns struck
Nelson in the eye. He immediately collapsed on the ground
and fell into the bushes where he writhed in pain for ten to fif-
teen minutes. Although unable to see, Nelson heard the offi-
cers proceed past where he lay, but none of them provided
assistance. Some time later, Nelson was removed from the
scene and driven to the hospital. Later that evening, Lieuten-
ant Pytel, the incident commander at the scene learned that an
individual was injured during the dispersal of persons at the
apartment complex and sent Wilson to the hospital to ascer-
tain whether that individual was injured by the officers’ use
of force and whether that individual had committed a charge-
able offense. The officers were unable to find any crime with
which to charge Nelson — thus no charge was ever filed
against him. As a result of his injury, Nelson suffered tempo-
rary blindness, and “a permanent loss of visual acuity,” and
endured “multiple surgeries to repair the ocular injury he sus-
tained.” Additionally, as a result of his injury Nelson was
forced to withdraw from U.C. Davis due to the loss of his ath-
letic scholarship.
7970 NELSON v. CITY OF DAVIS
After the shooting, Nelson, his father, and a number of his
companions who were present at the incident, filed incident
reports with the Davis and U.C. Davis police forces. Despite
their efforts, James Hyde, Chief of the Davis Police Depart-
ment, approved of the decision not to accept the complaint for
the Davis Police and did not conduct an investigation into the
use of force. Calvin Handy, Chief of the U.C. Davis Police
Department, authorized an internal investigation into the use
of force, but relied solely on the written reports provided by
the officers, which did not disclose that anyone had been seri-
ously injured. On the basis of these reports he concluded that
all policies had been followed. After the complaints filed on
Nelson’s behalf failed to result in a serious investigation into
the use of force at the apartment complex, Nelson filed suit
in district court under 42 U.S.C. § 1983 alleging, among other
things, a violation of his Fourth Amendment right to be free
from unreasonable seizure. In addition to officers Barragan,
Chang and Garcia, the officers involved directly in the shoot-
ing, Nelson sued Hyde and Handy for their actions in ratify-
ing the unconstitutional conduct of the officers. Neither the
students nor the officers identified which of the officers shot
the projectile which hit Nelson. Defendants Chief Hyde, Chief
Handy, Sgt. Wilson, and Officers Barragan, Garcia, and
Chang moved for summary judgment on the basis of qualified
immunity. The district court granted summary judgment to
the defendants on some of Nelson’s claims, but held that,
under Nelson’s version of the events, a constitutional viola-
tion, an unreasonable seizure under the Fourth Amendment,
had occurred and the defendants were not entitled to qualified
immunity. The defendants filed an interlocutory appeal chal-
lenging the district court’s denial of qualified immunity.2 The
2
The Appellees also challenge the district court’s denial of summary
judgment on the remaining state law claims. We do not have jurisdiction
over those appeals. In addition, “California denies immunity to police offi-
cers who use excessive force.” See Robinson v. Solano Cnty., 278 F.3d
1007, 1016 (9th Cir. 2002) (citing Mary M. v. City of Los Angeles, 54 Cal.
3d 202, 215 (1991)); see also Venegas v. Cnty. of Los Angeles, 153 Cal.
NELSON v. CITY OF DAVIS 7971
defendants challenge only the court’s conclusions that the
officers’ conduct violated Nelson’s constitutional right and
that, at the time of the incident, it was clearly established that
it did so.3 Liberal v. Estrada, 632 F.3d 1064, 1074, 1076 (9th
Cir. 2011).
DISCUSSION
Qualified immunity shields an official from damages in a
civil suit unless the plaintiff can make the showing that the
official’s actions violated a constitutional right, and that the
right was “clearly established” at the time of the violative
conduct. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To
survive the defendant’s invocation of qualified immunity, the
plaintiff must succeed on both prongs. We hold that Nelson
has succeeded in alleging facts that, if true, would support the
finding that the officers’ conduct constituted a violation of
clearly established law. The district court therefore did not err
when it denied the officers qualified immunity for their use of
force against Nelson.
App. 4th 1230, 1246 (2007) (holding that “qualified immunity of the kind
applied to actions brought under [§ 1983] does not apply to actions
brought under [Cal. Civ. Code] section 52.1”). Thus, even if this court
were to conclude that the officers were entitled to qualified immunity, the
state claims would be unaffected by this appeal.
3
Officers Barragan, Chang and Garcia contend that the shooting was
constitutionally permissible. Sgt.Wilson similarly asserts the constitution-
ality of the shooting and argues that his conduct, ordering the officers to
shoot, by extension, could not have violated Nelson’s constitutional right.
Chief Handy and Chief Hyde are liable for their acts of ratifying the con-
duct of the officers only if the officers’ conduct is found to be unconstitu-
tional. The liability of all parties to this appeal is therefore dependent on
holding that the shooting of Nelson constituted a violation of the constitu-
tion.
7972 NELSON v. CITY OF DAVIS
I.
The officers first contend that Nelson was not seized under
the Fourth Amendment. We reject this argument.
[1] “A person is seized by the police and thus entitled to
challenge the government’s action under the Fourth Amend-
ment when the officer by means of physical force or show of
authority terminates or restrains his freedom of movement
through means intentionally applied.” Brendlin v. California,
551 U.S. 249, 254 (2007) (internal quotation marks and cita-
tions omitted) (emphasis omitted). In this case, the U.C. Davis
police officers took aim and intentionally fired in the direction
of a group of which Nelson was a member. Nelson was hit in
the eye by a projectile filled with pepper spray and, after
being struck, was rendered immobile until he was removed by
an unknown individual. Nelson was both an object of inten-
tional governmental force and his freedom of movement was
limited as a result. Under these facts, Nelson was unquestion-
ably seized under the Fourth Amendment.4
4
Even in the absence of Nelson’s submission, the government’s inten-
tional application of force to Nelson was sufficient to constitute a seizure.
As the Supreme Court has made clear, the mere assertion of police author-
ity, without the application of force, does not constitute a seizure unless
an individual submits to that authority. California v. Hodari D., 499 U.S.
621, 626-27 (1991); see also United States v. Smith, 633 F.3d 889, 893
(9th Cir. 2011) (submission is required to constitute a seizure in the
absence of physical force). Conversely, when that show of authority
includes the application of physical force, a seizure has occurred even if
the object of that force does not submit. Hodari D., 499 U.S. at 624-26 (an
arrest, the “quintessential seizure of the person under our Fourth Amend-
ment jurisprudence,” occurs with “the mere grasping or application of
physical force with lawful authority, whether or not it succeeded in subdu-
ing the arrestee”); see also Stevens v. Rose, 298 F.3d 880, 884 (9th Cir.
2002) (“[A]n arrest is effected by the slightest application of physical
force.” (quoting Hodari D. at 625)); Alexander v. City & Cnty. of S.F., 29
F.3d 1355, 1365 n.10 (9th Cir. 1994) (citing Hodari for proposition that
“physical force constitutes a seizure under the Fourth Amendment”). As
the Court has held, “an arrest requires either physical force . . . or, where
that is absent, submission to the assertion of authority.” Hodari D., 499
U.S. at 626 (emphasis in original). In this instance, Nelson was an object
of the officers’ physical force and he submitted to that force. He was
therefore seized under both the former and the latter definition of the term.
NELSON v. CITY OF DAVIS 7973
The officers argue that Nelson was not individually tar-
geted by officers, and therefore his shooting was unintentional
and incapable of causing a Fourth Amendment violation. This
argument misapprehends the distinction between intentional
and unintentional conduct that the Supreme Court has repeat-
edly held as determinative of the Fourth Amendment analysis.
To constitute a seizure, the governmental conduct must be
purposeful, and cannot be an unintentional act which merely
has the effect of restraining the liberty of the plaintiff. Com-
pare Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843-44
(1998) (no seizure occurred when police car unintentionally
ran over a passenger who fell from a fleeing motorcycle dur-
ing chase) and United States v. Al Nasser, 555 F.3d 722 (9th
Cir. 2009) (no seizure occurred when police signaled to driver
to continue driving and he misinterpreted signal and stopped),
with Brower v. Cnty. of Inyo, 489 U.S. 593 (1989) (seizure
occurred when fleeing driver hit road block intentionally
erected by the police), and Brendlin, 551 U.S. 249 (seizure of
passenger occurs when car stopped by police for the purpose
of detaining the driver).
[2] The intentionality requirement is satisfied when the
“termination of freedom of movement [occurs] through
means intentionally applied.” Brower, 489 U.S. at 597(emphasis in original). In the Court’s opinion in Brower, such
willful conduct is contrasted with the unknowing and uninten-
tional act of accidentally pinning a fleeing felon to a wall with
a police car when the brakes of an unoccupied police vehicle
failed. For an act to be unintentional, the governmental con-
duct must lack the element of volition; an absence of concern
regarding the ultimate recipient of the government’s use of
force does not negate volition. As Brendlin stated, “ ‘an unin-
tended person . . . [may be] the object of the detention,’ so
long as the detention is ‘willful’ and not merely the conse-
quence of ‘an unknowing act.’ ” Id. at 254 (quoting Brower,
489 U.S. at 596) (alterations in original). Regardless of
whether Nelson was the specific object of governmental
force, he and his fellow students were the undifferentiated
7974 NELSON v. CITY OF DAVIS
objects of shots intentionally fired by the officers in the direc-
tion of that group. Although the officers may have intended
that the projectiles explode over the students’ heads or against
a wall, the officers’ conduct resulted in Nelson being hit by
a projectile that they intentionally fired towards a group of
which he was a member. Their conduct was intentional, it was
aimed towards Nelson and his group, and it resulted in the
application of physical force to Nelson’s person as well as the
termination of his movement. Nelson was therefore intention-
ally seized under the Fourth Amendment.
The defendants contend that the intent of the officers was
to hit the area around the students in order to douse them with
pepper spray from the exploding pepperball projectiles in a
tactic called “area contamination.” Testimony from at least
one officer, however, reveals that they were instructed by
Wilson to “shoot at the crowd,” and that at least one officer
attempted to hit individual students within Nelson’s group.
Nonetheless, even were we to accept as true their contention
on appeal that they intended to conduct area contamination,
it is of no significance whether the expectation was to hit the
group with the contents of the projectile or with the projectile
itself. Whether the officers intended to subject the students to
a shower of pepper spray via area contamination or intended
to hit them with the pepperball projectiles themselves, the
officers intentionally directed their use of force at the stu-
dents. As the Supreme Court has recognized, a seizure occurs
when an individual is “stopped by the accidental discharge of
a gun with which he was meant only to be bludgeoned, or by
a bullet in the heart that was meant only for the leg.” Brower,
489 U.S. at 599. Thus, the precise manner in which the offi-
cers’ intentional use of force was ultimately experienced by
Nelson does not affect the determination that a seizure has
occurred. Although Nelson may have been struck in the eye
with a pepperball that was intended to impact his body else-
where, or was physically hit by the projectile when the offi-
cers sought only to spray him with its contents, the legal
NELSON v. CITY OF DAVIS 7975
consequence of the officers’ actions is that a seizure of Nelson
occurred.
[3] The officers also argue that their actions could not con-
stitute a seizure because their intent was to disperse the
crowd. The Supreme Court has repeatedly held that the Fourth
Amendment analysis is not a subjective one. See, e.g., Ash-
croft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011); Brendlin, 551
U.S. at 261; Whren v. United States, 517 U.S. 806, 813
(1996). “The intent that counts under the Fourth Amendment
is the intent [that] has been conveyed to the person con-
fronted, and the criterion of willful restriction on freedom of
movement is no invitation to look to subjective intent when
determining who is seized.” Brendlin, 551 U.S. at 260-61(alterations in original) (internal quotation marks and citation
omitted). Recently, the Court again emphasized that “the
Fourth Amendment regulates conduct rather than thoughts.”
al-Kidd, 131 S.Ct. at 2080. Whether the officers intended to
encourage the partygoers to disperse is of no importance
when determining whether a seizure occurred. The officers
took aim and fired their weapons towards Nelson and his
associates. Regardless of their motives, their application of
force was a knowing and wilful act that terminated Nelson’s
freedom of movement. It unquestionably constituted a seizure
under the Fourth Amendment.
II.
[4] A seizure results in a constitutional violation only if it
is unreasonable. Graham v. Connor, 490 U.S. 386 (1989).
Defendants contend that any seizure here did not meet that
standard. The determination of unreasonableness requires us
to decide “whether the totality of the circumstances justified
a particular sort of . . . seizure,” Tennessee v. Garner, 471
U.S. 1, 8-9 (1985). To resolve this question we must balance
“the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the countervailing gov-
ernmental interests at stake.” Graham, 490 U.S. at 396 (inter-
7976 NELSON v. CITY OF DAVIS
nal citations and quotation marks omitted). When the
governmental interests at stake are substantial, a greater intru-
sion upon the Fourth Amendment rights of the person may be
justified. Conversely, when the governmental interest is
insubstantial, the application of even minimal force may be
unreasonable. When balancing the degree of force used
against the governmental interests, “it is the need for force
which is at the heart of the [analysis].” Headwaters Forest
Def. v. Cnty. of Humboldt (“Headwaters II”), 276 F.3d 1125,
1130 (9th Cir. 2002) (quoting Liston v. Cnty. of Riverside, 120
F.3d 965, 976 (9th Cir. 1997)) (emphasis in original).
A.
The police arsenal includes many different types of force,
which intrude upon the Fourth Amendment rights of the indi-
vidual to varying degrees. We have recognized that “physical
blows or cuts” often constitute a more substantial application
of force than categories of force that do not involve a physical
impact to the body. Forrester v. City of San Diego, 25 F.3d
804, 807 (9th Cir. 1994) (holding that the use of a progressive
pain compliance device that inflicted temporary discomfort on
the arrestees was not a substantial intrusion). The absence of
concussive force is not determinative, however, and “[w]e
have held that force can be unreasonable even without physi-
cal blows or injuries.” Bryan v. MacPherson, 630 F.3d 805,
824 (9th Cir. 2010); see also Motley v. Parks, 432 F.3d 1072(9th Cir. 2005) (en banc) (pointing a weapon at unarmed child
was unreasonable); Robinson v. Solano County, 278 F.3d
1007 (9th Cir. 2002) (en banc) (pointing a weapon at unarmed
and nonthreatening individual was unreasonable). More spe-
cifically to the case before us, we have previously rejected the
contention that the use of pepper spray is a “minimal” intru-
sion, due to the immediacy and “uncontrollable nature” of the
pain involved. Headwaters Forest Def. v. Cnty. of Humboldt
(“Headwaters I”), 240 F.3d 1185, 1199 (9th Cir. 2000),
vacated and remanded on other grounds, 534 U.S. 801(2001); see also Logan v. City of Pullman, 392 F. Supp. 2d
NELSON v. CITY OF DAVIS 7977
1246, 1261 (E.D.Wash. 2005) (noting that pepper spray “is a
‘dangerous weapon’ under the criminal sentencing guidelines
because it is ‘capable of inflicting death or serious bodily
injury.’ ” (quoting United States v. Neill, 166 F.3d 943, 949
(9th Cir. 1999) (cert. denied))).
[5] Nelson was struck in the eye by a pepperball projectile,
an object that “combine[s] the shock of kinetic impact (simi-
lar to paintballs) with the sensory discomfort associated with
pepper spray.” Nelson v. City of Davis, 709 F. Supp. 2d 978,
982 (E.D. Cal. 2010). The intrusion on Nelson’s person
encompassed both the physical blow from the force of the
projectile and the chemical effects of pepper spray. As a result
of this injury, Nelson suffered significant damage to his eye,
causing temporary blindness and a permanent loss of visual
acuity. He also was forced to endure multiple surgeries to par-
tially repair the damage caused by the pepperball projectile.
The possibility of serious injury was apparent to the officers
at the time of the shooting. According to the deposition testi-
mony of current and former officers, the Commission on
Peace Officer Standards and Training (“POST”) guidelines
specified that officers using the pepperball guns should avoid
the head, face and groin due to the risk of causing serious
injury. They testified that officers were advised not to shoot
pepperballs indiscriminately or at individuals that were not
posing a threat, nor were they permitted to shoot at any dis-
tance if there was a possibility that the target could be hit in
the head or if other damage was possible. In addition to the
general prohibition against using the weapon at any distance
that was likely to cause injury, officers were warned that pep-
perball projectiles could not be accurately targeted beyond 30
feet. Although officers were trained that they could target
walls or other surfaces at a distance up to 100 feet for the pur-
pose of area saturation — allowing the pepperballs to break
on a hard surface to render the surrounding area uninhabitable
— they were specifically instructed to refrain from doing so
if the targeted area itself was populated by individuals, due to
the risk of injury. In addition to the expert testimony, the offi-
7978 NELSON v. CITY OF DAVIS
cers involved in Nelson’s shooting specifically testified in
their depositions that they were aware of these limitations and
safety concerns surrounding the use of pepperball guns. The
involved officers were therefore well aware of the risks that
accompanied the use of pepperball projectiles, particularly
when fired at a distance well beyond that approved under their
guidelines.
[6] The actual harm caused to Nelson “is certainly relevant
in evaluating the degree of the Fourth Amendment intrusion.”
Bryan, 630 F.3d at 824-25. We conclude that both the risk of
harm and the actual harm experienced by Nelson were signifi-
cant and must be justified by substantial government interests.
B.
To evaluate the need for the government’s use of force
against Nelson we consider a number of factors, including
“the severity of the crime at issue, whether . . .[Nelson]
pose[d] an immediate threat to the safety of the officers or
others, and whether he . . . actively resist[ed] arrest or attemp-
t[ed] to evade arrest by flight.” Graham, 490 U.S. at 396.
[7] The first factor, the severity of the crime at issue,
weighs heavily in favor of Nelson and against the use of the
force employed by the officers. The police did not contend
that Nelson or any of his companions were committing a
crime at the time that he was shot. After he was incapacitated,
the police did not place him under arrest but rather walked
past him as he lay on the ground. Upon learning of an injured
partygoer, Wilson investigated Nelson to determine whether
there was a possibility that he could be charged with any
crime and concluded that there was not. Consistent with the
police’s own investigation, Nelson has never been charged
with any crime, and neither have any of his comrades.5 Even
5
The defendants now attempt to characterize Nelson as a “willful
trespasser/rioter/non-disperser.” This characterization is belied by the
NELSON v. CITY OF DAVIS 7979
if the group was trespassing, based on a willful refusal to
leave the property, such an act is only a misdemeanor under
California law. Cal. Pen. Code § 602(l)(1). Trespassing, while
a legally-punishable offense, is a minor infraction that justi-
fies, at most, only a minimal use of force. See Davis v. City
of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007). Although
the officers plainly had an interest in clearing the apartment
complex after permission to do so was obtained from the
property owner, the desire to do so quickly, in the absence of
any actual exigency, cannot legitimize the application of force
when it is not otherwise justified. See Deorle v. Rutherford,
272 F.3d 1272, 1281 (9th Cir. 2001). Thus, the lack of serious
criminal behavior by Nelson, and the absence of exigency
involved in the officers’ desire to clear the apartment com-
plex, significantly reduce the governmental interest involved,
and thus provide only minimal, if any, justification for the use
of force under Graham.
The fact that Nelson and his friends did not commit any
chargeable offense, or, at most, a misdemeanor, weighs heav-
ily against the defendants’ use of force but does not necessar-
ily in itself determine the outcome of the reasonableness
analysis. As we have recognized in prior cases, the degree of
threat posed by the suspect is the most important factor.
Bryan, 630 F.3d at 826; Chew v. Gates, 27 F.3d 1432, 1441
(9th Cir. 1994). The “calculus of reasonableness must embody
defendants’ own conclusion that Nelson had not committed a chargeable
offense. Further, despite being unaware of the officers’ orders to disperse,
all members of Nelson’s group contended that they were attempting to
extricate themselves from the party when Nelson was shot, and thus were
not “willfully trespassing,” “non-dispersing,” or “rioting,” as the defen-
dants allege. Regardless of whether the defendants now wish to contend
that Nelson was a rioter, a “non-disperser,” or an armed felon, the plaintiff
has presented substantial evidence that would permit a jury to conclude
that he was none of these and, as on review of the defendants’ summary
judgment motion we must construe the facts in the light most favorable to
the plaintiff and cannot accept the defendants’ assertions to the contrary,
belated or otherwise.
7980 NELSON v. CITY OF DAVIS
allowance for the fact 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,” Robinson,
278 F.3d at 1009 (quoting Graham, 490 U.S. at 396-97). We
must also consider whether the officers reasonably perceived
Nelson and his friends as posing a threat to the officers’ safety
or the safety of other civilians, regardless of whether they ulti-
mately determined that no one had engaged in criminal con-
duct.
[8] While the threat analysis must be based on objective
factors and not merely “a simple statement by an officer that
he fears for his safety or the safety of others,” Deorle, 272
F.3d at 1281, the undisputed facts support the conclusion that
the officers did not reasonably believe Nelson or any of his
companions posed a threat. Although the officers encountered
individuals at various points during their sweeps who threw
bottles or other debris at them, or haphazardly threw such
items throughout the complex, the defendants admit that they
never saw Nelson throw anything — in their direction or in
any other direction. The same is true of the other students
gathered with Nelson in the breezeway. More than one of the
defendant officers stated in their depositions that they did not
see anyone in Nelson’s group throwing bottles or engaging in
any other threatening or dangerous behavior. Additionally, the
officers did not have a reasonable belief that Nelson or his
friends had engaged in violent behavior or that he or the stu-
dents on the breezeway with him might do so absent the offi-
cers’ intervention by force. Even affording due weight to the
tumultuous circumstances in which the use of force took
place, there was no indication that Nelson or his colleagues —
college students taking cover in the breezeway — represented
a threat to anyone’s safety. These individuals were observed
prior to the officers’ use of force and were seen not to be
engaged in any violent conduct. Nonetheless, the projectiles
were launched towards them. Under these circumstances, the
general disorder of the complex cannot be used to legitimize
NELSON v. CITY OF DAVIS 7981
the use of pepperball projectiles against non-threatening indi-
viduals. See Deorle, 272 F.3d at 1281-83; Headwaters I, 240
F.3d at 1202-04; Ciminillo v. Streicher, 434 F.3d 461, 467-68
(6th Cir. 2006). When we consider the degree of threat posed
by Nelson and his friends, we once again conclude that this
factor weighs strongly against the use of force.
[9] Last among the factors considered in the Graham anal-
ysis is whether Nelson and his friends were actively resisting
or attempting to evade arrest. As we have previously recog-
nized, resistance “runs the gamut from the purely passive
protestor who simply refuses to stand, to the individual who
is physically assaulting the officer.” Bryan, 630 F.3d at 830.
Even passive resistance may support the use of some degree
of governmental force if necessary to attain compliance, how-
ever “the level of force an individual’s resistance will support
is dependent on the factual circumstances underlying that
resistance.” Id. As already stated, the officers never attempted
to place Nelson or his associates under arrest, so we need con-
sider only whether the degree of force employed may be justi-
fied by a failure to comply with orders given by the officers.
According to the events attested to by Nelson and his asso-
ciates, which we must accept as true for purposes of this qual-
ified immunity appeal, the police did not give orders to the
group until after the shooting of the projectiles had already
occurred. There can therefore be no failure to comply with
orders, and Nelson’s actions cannot be viewed as even passive
non-compliance. Although Nelson may not have acted as the
officers wished, their unannounced preferences are not substi-
tutes for police orders. See Deorle, 272 F.3d at 1282 (noting
the object of police force “certainly could not have been
expected to comply with instructions that were never given to
him”).
Even if we were to accept the officers’ version of the
events, and assume that they issued orders to disperse without
sound amplification and at a distance of 45 to 150 feet from
the group, Nelson’s failure to comply immediately could only
7982 NELSON v. CITY OF DAVIS
rise to the level of passive resistance. In prior cases, we have
recognized that a failure to fully or immediately comply with
an officer’s orders neither rises to the level of active resis-
tance nor justifies the application of a non-trivial amount of
force. We have so held even when the extent of the resistance
was substantially greater than Nelson and his friends’ simple
failure to disperse. See, e.g., Young v. Cnty. of L.A., 655 F.3d
1156, 1165-66 (9th Cir. 2011) (arrestee’s repeated refusal to
reenter vehicle at officer’s command is not active resistance);
Bryan, 630 F.3d at 829-30 (arrestee’s cursing and muttering
to himself and exiting his vehicle despite being told to stay in
car was not active resistance); Davis, 478 F.3d at 1055-56(arrestee’s actions in physically impeding the officer’s search
of his pockets was not active resistance); Smith v. City of
Hemet, 394 F.3d 689, 703 (9th Cir. 2005) (en banc)
(arrestee’s refusal to remove hands from pockets and his reen-
try of his home despite officers’ orders to place hands on head
and walk towards them was not active resistance); Headwa-
ters II, 276 F.3d 1125, 1130 (protestors that remained seated
and used “black bear” devices to lock themselves to one
another despite officers’ orders to disperse did not actively
resist); cf. Jackson v. City of Bremerton, 268 F.3d 646, 652-63
(9th Cir. 2001) (arrestee who repeatedly physically interfered
with officer’s arrest of a third party was actively resisting).
As our prior cases illustrate, active resistance is not to be
found simply because of a failure to comply with the full
extent of an officer’s orders. To the contrary, where an indi-
vidual’s “resistance was [not] particularly bellicose,” Smith,
394 F.3d at 703, we have held that various applications of
force, including the use of pepper spray, Headwaters II, 276
F.3d 1125, and bean bag projectiles, Deorle, 272 F.3d 1272,
were not reasonable. Therefore, even if Nelson heard and was
in non-compliance with the officers’ orders to disperse, this
single act of non-compliance, without any attempt to threaten
the officers or place them at risk, would not rise to the level
of active resistance. There is therefore no justification for the
use of force to be found in the third Graham factor.
NELSON v. CITY OF DAVIS 7983
[10] In addition to the considerations set forth in Graham,
this court has recognized that although officers “are not
required to use the least intrusive degree of force possible,”
Forrester, 25 F.3d at 807, “the availability of alternative
methods,” Smith, 394 F.3d at 701, is a relevant factor in deter-
mining whether the amount of force used in a particular
instance was, in fact, reasonable. The officers contend that
their use of the pepperball guns was necessary because their
prior attempts to disperse the crowd had failed. The actions of
the officers when they approached Nelson’s group are in dis-
pute; however various witnesses stated that the officers stood
at a distance between 45 to 150 feet for a period of at least
a few minutes without making known to the partygoers what
they were expected to do. A number of officers then shot their
weapons in the direction of the group, hitting the walls in
addition to Nelson himself. Regardless of where the officers
hoped their projectiles would land, they were aware from their
training that they could not accurately target their weapons at
a distance beyond thirty feet and that the projectiles fired from
beyond that distance would likely stray from their intended
path. Additionally, the officers had been trained that they
were not to use pepperballs to hit individuals who were not
posing a safety risk and that area contamination should not be
attempted if the area was occupied due to the risk of injury.
Thus the officers could have altered their tactics to bring them
in compliance with their own training, which would have
minimized the degree of force applied or eliminated the need
for force altogether.
[11] Finally, we have held that “the giving of a warning or
the failure to do so is a factor to be considered in applying the
Graham balancing test.” Deorle, 272 F.3d at 1284 (reasoning
that the absence of warning made use of force more unreason-
able under the circumstances); cf. Forrester, 25 F.3d 804(holding that use of force was not unreasonable, in part
because protesters were given warning and instructions on
how to comply before force was applied). Here, the officers
claim to have instructed the partygoers to disperse, but it is
7984 NELSON v. CITY OF DAVIS
undisputed that they lacked any means with which to amplify
their voices so that they could be heard over the din of the
crowd. Witnesses who were with Nelson at the party stated
that they did not hear any orders given until after Nelson had
already been shot. Additionally, there is nothing in the record
that indicates that the group was told prior to the shooting
how they should comply with the dispersal orders (particu-
larly when the officers were blocking their primary means of
egress) or that force would be used against them if they did
not behave in a particular manner. Thus the failure to give
sufficient warnings also weighs against the government’s
decision to use force against Nelson and his associates.
[12] It is clear from the above that the governmental inter-
est in applying force to Nelson or any member of his group,
party-goers posing no visible threat and demonstrating no
unwillingness to comply with the officers’ orders, was mini-
mal at best.
C.
[13] The factors that justify the use of force must be
weighed against the degree of intrusion posed by the particu-
lar type of force to determine if the use in the particular
instance was reasonable. In the final analysis, the only gov-
ernmental interest involved in the application of force to Nel-
son and his friends was the officers’ desire to clear the
complex of the party-going individuals. There is no evidence
that the officers reasonably believed that Nelson or his friends
posed a risk to the officers or any other persons; the officers
had no interest in arresting them; and the group engaged in
passive resistance, at most, by failing to immediately disperse
if and when such an order was given. The officers’ general
interest in clearing the complex does not provide a legitimate
governmental interest sufficient to justify the use of the force
at issue. While it is undisputed that there were individuals
hurling both bottles and expletives at officers, it is also undis-
puted that Nelson and his companions were not among them,
NELSON v. CITY OF DAVIS 7985
and the individuals causing the problems were not so numer-
ous that the two categories of partygoers were indistinguish-
able. The application of force to Nelson’s group therefore
could not have been justified by the government’s interest in
stopping any and all disorderly behavior. Nor, even if we
were to consider all the partygoers as a single entity, was the
desire to clear the area sufficient justification for employing
the force used by the government — the firing of pepperball
projectiles with the potential kinetic impact of the projectile
and the actual impact of the pepper spray, resulting in this
instance in serious and permanent injury to one or more indi-
viduals. This force resulted in substantially more than a mini-
mal intrusion and was not justified by the governmental
interest in dispersing a group of student partygoers who could
most likely be dispersed by less forceful means. We therefore
conclude that the force used by the government was unreason-
able and resulted in a violation of the Fourth Amendment.
III.
Although we hold that the officers’ use of force against
Nelson was unreasonable, in order to deny qualified immunity
to the officers in this case we must also determine that at the
time of the incident it was clearly established that such con-
duct would violate Nelson’s Fourth Amendment rights. The
clearly established requirement protects government officials
“from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow,
457 U.S. at 818. The determination whether a right was
clearly established “must be undertaken in light of the specific
context of the case, not as a broad general proposition,” Sau-
cier v. Katz, 533 U.S. 194, 201 (2001); see also Brosseau v.
Haugen, 543 U.S. 194 (2004). While this inquiry must be case
specific, it is not so narrowly defined that it “allow[s] Appel-
lants, and future defendants, to define away all potential
claims,” Kelley v. Borg, 60 F.3d 664, 667 (9th Cir. 1995). To
the contrary, in applying the clearly established requirement,
7986 NELSON v. CITY OF DAVIS
courts recognize that “officials can be on notice that their con-
duct violates established law even in novel factual situations.”
Hope v. Pelzer, 536 U.S. 730, 741 (2002). “To show that the
right in question here was clearly established, [Nelson] need
not establish that [the officers’] behavior had been previously
declared unconstitutional, only that the unlawfulness was
apparent in light of preexisting law.” Jensen v. City of
Oxnard, 145 F.3d 1078, 1085 (9th Cir. 1998) (quoting Blue-
ford v. Prunty, 108 F.3d 251, 254 (9th Cir.1997)) (internal
quotation marks omitted).
[14] Despite the defendants’ contentions to the contrary, it
was clearly established prior to April 2004, the time of Nel-
son’s shooting, that the intentional application of force which
terminates an individual’s freedom of movement results in a
seizure. See, e.g., Hodari D., 499 U.S. 621; Brower, 489 U.S.
593. All that remains is to determine whether the law was suf-
ficiently clearly established that a reasonable officer would
have been on notice that the use of pepperball projectiles
directed towards Nelson and his friends was unreasonable
under the circumstances.
[15] Although the Graham factors clearly weighed against
the use of force given the slight governmental interest
involved, further notice is required to inform a reasonable
officer that his acts will amount to a constitutional violation.
Brosseau, 543 U.S. at 199. Defendants correctly note that
there is no binding precedent that has specifically addressed
the use of pepperball projectiles. As we have previously held,
however, “[a]n officer is not entitled to qualified immunity on
the ground[ ] that the law is not clearly established every time
a novel method is used to inflict injury.” Deorle, 272 F.3d at
1286 (quoting Mendoza v. Block, 27 F.3d at 1362) (alterations
in original) (internal quotation marks omitted). Pepperball
projectiles, while a relatively new means of applying both
pepper spray and concussive force to the target, merely com-
bine two types of force that we have already recognized as
unreasonable when aimed at individuals who pose no threat
NELSON v. CITY OF DAVIS 7987
and have committed, at most, minor offenses. See Headwaters
II, 276 F.3d at 1130; Deorle, 272 F.3d at 1285.
In the cases in which we have held that the unreasonable
application of a new form of force was not clearly established,
our holdings were premised on the fact that these particular
methods represented novel means of applying pain. See, e.g.,
Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (en banc)
(not clearly established that the use of a taser to deliver an
electric shock to the target or override the victim’s nervous
system was unreasonable); Bryan, 630 F.3d at 824, 833(same); Boyd v. Benton Cnty., 374 F.3d 773 (9th Cir. 2004)
(not clearly established that officers’ use of a sensory-
impairing “flash-bang” device was unreasonable). Although
the pepperball projectile is a relatively new mechanism by
which a combination of concussive impact and chemical irri-
tants can be applied to individuals by law enforcement, the
type of pain inflicted is the same or greater than that caused
by weapons that this court has already recognized constitute
excessive force when applied individually under similar cir-
cumstances. Thus, just as our prior cases provided notice to
all reasonable officers that targeting Nelson and his group
with a projectile weapon with concussive force that could
cause serious physical injury or targeting them with pepper
spray was unreasonable under the Fourth Amendment, our
precedents make it equally clear that utilizing a weapon
against Nelson’s group that combined both of these forms of
force amounted to a constitutional violation.
In LaLonde v. County of Riverside, 204 F.3d 947 (9th Cir.
2000), and Headwaters I and II, we held that the use of pep-
per spray, and a failure to alleviate its effects, was an unrea-
sonable application of force against individuals who were
suspected of only minor criminal activity, offered only pas-
sive resistance, and posed little to no threat of harm to others.
Under these precedents, any reasonable officer therefore
would have been on notice prior to April 2004 that the appli-
cation of pepper spray to individuals such as Nelson and his
7988 NELSON v. CITY OF DAVIS
associates, whose only transgression was the failure to dis-
perse as quickly as the officers desired, would violate the
Fourth Amendment.
Similarly, our decision in Deorle provides notice to a rea-
sonable officer that the firing of a projectile directed at Nelson
or his colleagues would be unreasonable. In Deorle, we held
that shooting an individual with a projectile, there a bean bag,
that was also known to pose a greater risk of harm if it
impacted the eye — and that did impact the victim’s eye —
was unreasonable. Deorle, 272 F.3d at 1285-86. Our conclu-
sion was based on the fact that the target was suspected of no
crime, only passively resisted officers, and posed a minimal
risk of harm. Id. In Deorle, we recognized that the type of
“force used . . . [was] capable of causing serious injury to the
person shot, and that such injury may occur in any given
instance.” Id. at 1284. In so doing, we noted that the potential
for injury must not be evaluated on the presumption that the
“shot . . . will hit the precise part of the body at which it is
aimed by the shooter,” but rather based on its capacity for
causing serious harm. Id. at 1285 n. 23. Despite not having
previously recognized specifically the use of a beanbag pro-
jectile as an unreasonable application of force, we denied the
defendant-officer qualified immunity and held that “[e]very
police officer should know that it is objectively unreasonable
to shoot — even with lead shot wrapped in a cloth case — an
unarmed man who[ ] has committed no serious offense . . .
has been given no warning of the imminent use of such a sig-
nificant degree of force, poses no risk of flight, and presents
no objectively reasonable threat to the safety of the officer or
other individuals.” Id. at 1285.
The dual nature of the pepperball projectile creates addi-
tional risks not present with a strictly projectile object, as used
by the officer in Deorle. Nonetheless, even if considered as a
purely projectile object, the officers in this case were aware
that pepperballs fired from their guns could, as in this
instance, cause substantial harm, and that there was a substan-
NELSON v. CITY OF DAVIS 7989
tial risk of hitting individuals in vulnerable areas given the
inability to accurately target their weapons at the distance at
which they fired them.6 In light of our holding in Deorle, a
reasonable officer would have known that firing projectiles,
including pepperballs, in the direction of individuals sus-
pected of, at most, minor crimes, who posed no threat to the
officers or others, and who engaged in only passive resis-
tance, was unreasonable.
[16] Under the factual circumstances present in this case,
a reasonable officer would have been on notice that both the
firing of a projectile that risked causing serious harm, in the
direction of non-threatening individuals who had committed
at most minor misdemeanors, and the release of pepper spray
in the area occupied by those individuals, would constitute
unreasonable force in violation of the Fourth Amendment.
The defendants contend that a consideration of the larger con-
text in which the force was used compels a different conclu-
sion. They are correct that the context of the officers’ actions
must be considered, and indeed in reaching our conclusion,
we have taken into account the particular circumstances in
which the use of force occurred on Picnic Day at U.C. Davis.
We must nonetheless conclude that the unreasonableness of
their conduct would have been known to any reasonable offi-
cers. Although the officers used force against Nelson and his
6
Although we rely on our precedent to hold that the officers were on
notice that their actions were unreasonable, we also note that the officers’
own training on the use of pepperball guns put them on notice that they
were not to target individuals with such weapons from the distance
involved here or shoot persons who were not actively posing a risk; nor
were they to use area contamination when the targeted area was occupied
due to the risk of injuring individuals. The defendants in this case there-
fore had clear notice from their own training that the use of this particular
weapon created a risk of injury and was unreasonable in the manner that
it was deployed against Nelson and his friends. See Drummond, 343 F.3d
at 1061-62 (citing the officers’ training manuals as “relevant not only to
whether the force employed in this case was objectively unreasonable . . .
but also to whether reasonable officers would have been on notice that the
force employed was objectively unreasonable”).
7990 NELSON v. CITY OF DAVIS
group during their attempt to disperse a crowd, there was no
exigency motivating the officers’ actions and they were aware
at the time of the shooting that they were using force that
might lead to serious injury against non-threatening individu-
als who had committed no serious crime.
[17] The Tenth Circuit came to the same conclusion under
strikingly similar circumstances. In Fogarty v. Gallegos, 523
F.3d 1147 (10th Cir. 2008), the officers used a pepperball gun
against plaintiff Fogarty when he attended a large demonstra-
tion against the Iraq war on a college campus. Fogarty testi-
fied that he did not hear or understand any orders from the
police instructing the demonstrators to disperse prior to the
use of force and, although arrested at the scene, Fogarty was
never charged with any crime. As in the case before us, the
Tenth Circuit’s consideration of “each of the Graham factors
balance[d] in [the plaintiff ’s] favor.” Id. at 1161. Although
the court acknowledged that none of its precedential opinions
had discussed the use of pepperballs, it nonetheless held that
the officers were on notice that the use of a new pain-
compliance technique such as pepperballs “against nonviolent
misdemeanants who do not flee or actively resist arrest,” id.(quoting Casey v. City of Fed. Heights, 509 F.3d 1278, 1285
(10th Cir. 2007)) (internal quotation marks omitted), consti-
tuted unreasonable force and that the circumstances did not
present a “case . . . so close that our precedents would fail to
portend the constitutional unreasonableness of defendants’
alleged actions.” Id. at 1162. Although Fogarty was decided
in 2008 and could not itself have provided notice that the fir-
ing of the pepperball guns in 2004 was unreasonable, the
Fogarty court relied on our decisions in Headwaters II and
Lalonde as the basis for its conclusion that the officers should
have been well aware in March 2003, one year prior to the
U.C. Davis shooting, that the use of a pepperball gun against
a non-threatening individual committing a minor crime, even
in the context of a large disturbance, was unreasonable. Id. at
1161-62; see also Ciminillo, 434 F.3d at 469 (citing Deorle
in holding that it was clearly established in 2002, two years
NELSON v. CITY OF DAVIS 7991
prior to the Picnic Day shooting, that the firing of a beanbag
projectile at a non-threatening individual at the scene of a riot
was unreasonable); Logan, 392 F. Supp. 2d at 1265-68 (citing
Headwaters II and Lalonde in holding that it was clearly
established in 2002 that the indiscriminate use of pepper spray
without warning against individuals in close proximity to a
fight was unreasonable). We agree with the conclusion
reached by the Tenth Circuit and the other courts. We hold
that a reasonable officer should have known that the firing of
the pepperball gun towards Nelson and his friends, given the
minimal governmental interests at stake, was in violation of
Nelson’s clearly established Fourth Amendment right, even
when that force was applied in the larger context of crowd
dispersal.
The order of the district court denying qualified immunity
to the defendants is AFFIRMED.