Donald Gravelet-Blondin v. Sgt Jeff Shelton

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONALD GRAVELET-BLONDIN; No. 12-35121

KRISTI GRAVELET-BLONDIN,

Plaintiffs-Appellants, D.C. No.

2:09-cv-01487-

v. RSL

SGT. JEFF SHELTON; CITY OF

SNOHOMISH, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Washington

Robert S. Lasnik, District Judge, Presiding

Argued and Submitted

May 10, 2013—Seattle, Washington

Filed September 6, 2013

Before: Michael Daly Hawkins and Jacqueline H. Nguyen,

Circuit Judges, and James V. Selna, District Judge.*

Opinion by Judge Hawkins;

Dissent by Judge Nguyen

*

The Honorable James V. Selna, District Judge for the U.S. District

Court for the Central District of California, sitting by designation.

2 GRAVELET-BLONDIN V. SHELTON

SUMMARY**

Civil Rights

The panel reversed the district court’s summary judgment

and remanded in an action brought pursuant to 42 U.S.C.

§ 1983 and state law alleging that police officers used

excessive force by tasing a passive bystander in dart mode

and then arresting him for obstruction of justice.

Plaintiff Donald Gravelet-Blondin was tased and arrested

after he allegedly failed to comply immediately with an

officer order to move away from the scene where his

neighbor was being arrested. The panel first determined that,

taking the evidence in the light most favorable to Donald and

his co-plaintiff wife, the discharge of a taser in dart mode was

unreasonable given that Donald’s alleged crime was minor

and there was no reason to believe, based on his behavior,

demeanor, and distance from the officers, that he posed an

immediate threat to anyone’s safety. The panel further held

that the police officer who tased Donald was not entitled to

qualified immunity because it was well known as of 2008 that

a taser in dart mode constituted more than trivial force.

The panel also reversed the district court’s summary

judgment on plaintiffs’ excessive force claim against the City

and remanded. The panel further held that a genuine issue of

fact remained as to whether there was probable cause to arrest

Donald for obstructing a police officer. The panel instructed

the district court on remand to consider whether qualified

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GRAVELET-BLONDIN V. SHELTON 3

immunity or Monell liability applied to the unlawful arrest

claim. Finally, the panel reversed the district court’s

summary judgment on plaintiffs’ common law claims for

malicious prosecution and outrage.

Dissenting, Judge Nguyen stated that the majority went

badly astray because it lost sight of the specific context of this

case and employed hindsight rather than viewing the scene

through the eyes of a reasonable officer.

COUNSEL

Timothy K. Ford (argued) and Joseph R. Shaeffer,

MacDonald Hoague & Bayless, Seattle, Washington, for

Plaintiffs-Appellants.

Richard B. Jolley (argued) and Adam Rosenberg, Keating,

Bucklin & McCormack, Inc., Seattle, Washington, for

Defendants-Appellees.

OPINION

HAWKINS, Senior Circuit Judge:

We must decide whether it was clearly established as of

2008 that the use of a taser in dart mode against a passive

bystander amounts to unconstitutionally excessive force

within the meaning of the Fourth Amendment.1 Because we

1

We proceed by answering this question in two parts, considering first

whether it was clearly established that it is unconstitutionally excessive to

use non-trivial force in response to mere passive resistance, and second,

4 GRAVELET-BLONDIN V. SHELTON

determine that it was, we reverse the contrary conclusion of

the district court and remand.2

I. BACKGROUND

In the early evening of May 4, 2008, Sergeant Jeff

Shelton and four other officers from the Snohomish,

Washington Police Department were dispatched to respond

to a 911 call of a suicide in progress made by family members

of an elderly suspect, Jack. When the officers arrived at

Jack’s home he was sitting in his car, which was parked in the

side yard of his house, with a hose running from the exhaust

pipe into one of the car’s windows. The officers had been

warned that Jack owned a gun and would have it with him.

Sgt. Shelton took precautions to ensure officer safety and then

asked Jack to get out of the car.

After several requests Jack finally complied, turning his

car off and stepping out with his hands at his sides. When

Jack refused multiple commands to show his hands, Sgt.

Shelton—concerned that Jack might gain access to a

gun—instructed another officer to tase Jack in dart mode.3

whether it was clearly established that a taser in dart mode constitutes

non-trivial force. We disagree with the dissent’s concern that we are

undertaking this constitutional inquiry at too high a level of generality.

2

We reverse the court’s grant of summary judgment on a number of

related claims, as well.

3

In “dart mode,” a taser:

uses compressed nitrogen to propel a pair of

“probes”—aluminum darts tipped with stainless steel

barbs connected to the [taser] by insulated

GRAVELET-BLONDIN V. SHELTON 5

Jack fell to the ground and, as officers attempted to restrain

and handcuff him, he pulled his arms underneath him. He

was then tased a second time.

Donald and Kristi Gravelet-Blondin (“the Blondins”),

Jack’s neighbors, were watching TV at home when the police

arrived at the scene. They heard noise coming from the

direction of Jack’s house and went outside—Donald Blondin

(“Blondin”) in shorts, a t-shirt, and slippers—to investigate

and make sure their neighbor was all right. When they

stepped into the yard between Jack’s house and their own, the

Blondins heard Jack moaning in pain, and Blondin saw

officers holding Jack on the ground.

Blondin called out, “what are you doing to Jack?” He

was standing some thirty-seven feet from Jack and the

officers at the time, with Jack’s car positioned in between.4

At least two of the officers holding Jack yelled commands at

wires—toward the target at a rate of over 160 feet per

second. Upon striking a person, the [taser] delivers a

1200 volt, low ampere electrical charge . . . The

electrical impulse instantly overrides the victim’s

central nervous system, paralyzing the muscles

throughout the body, rendering the target limp and

helpless.

Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (en banc) (quoting

Bryan v. MacPherson, 630 F.3d 805, 824 (9th Cir. 2010)) (internal

quotation marks omitted), cert. denied, 132 S. Ct. 2681 (2012), and cert.

denied, 132 S. Ct. 2682 (2012), and cert. denied, 132 S. Ct. 2684 (2012).

4

Blondin’s calculation is based on measurements he took the day after

the incident; officers on the scene took no measurements and have given

varying estimates as to how far away Blondin was standing, ranging from

ten to twenty-five feet.

6 GRAVELET-BLONDIN V. SHELTON

Blondin: one instructed him to “get back,” while another told

him to “stop.” According to a bystander watching the scene

unfold, Blondin took one or two steps back and then stopped.

Blondin recalls that he simply stopped. Sgt. Shelton then ran

towards Blondin, pointing a taser at him and yelling at him to

“get back.” Blondin froze. The bystander testified that

Blondin “appeared frozen with fear,” and Defendants have

conceded that he made no threatening gestures.

Sgt. Shelton began to warn Blondin that he would be

tased if he did not leave, but fired his taser before he had

finished giving that warning. Sgt. Shelton tased Blondin in

dart mode, knocking him down and causing excruciating

pain, paralysis, and loss of muscle control. Blondin,

disoriented and weak, began to hyperventilate. Sgt. Shelton

asked Blondin if he “want[ed] it again” before turning to Ms.

Blondin and warning, “You’re next.” Sgt. Shelton then

ordered another officer to handcuff Blondin. Paramedics

called to the scene removed the taser’s barbs from Blondin’s

body and tried to keep him from hyperventilating. Blondin

was arrested and charged with obstructing a police officer, a

charge that was ultimately dropped.

The Blondins then initiated this action, suing the City of

Snohomish (“the City”) and Sgt. Shelton for excessive force

and unlawful arrest in violation of 42 U.S.C. § 1983, and

malicious prosecution in violation of Washington law, for the

tasing and arrest of Blondin. Ms. Blondin also sued for

outrage under state law for the harm she suffered watching

her husband’s tasing and being threatened with tasing herself.

After considering cross-motions for summary judgment, the

district court granted summary judgment to Defendants on all

claims.

GRAVELET-BLONDIN V. SHELTON 7

II. STANDARD OF REVIEW

We review the district court’s grant of summary judgment

de novo. Bravo v. City of Santa Maria, 665 F.3d 1076, 1083

(9th Cir. 2011). In determining whether genuine issues of

material fact remain, we are required to view all evidence and

draw all inferences “in the light most favorable to the non-

moving party,” here, the Blondins. Id.

III. DISCUSSION

A. Excessive Force

We begin with the district court’s grant of summary

judgment to Defendants on the Blondins’ excessive force

claim. We agree that the Blondins have shown a

constitutional violation but disagree that neither Sgt. Shelton

nor the City may be held liable for it.

1. Constitutional Violation

The Fourth Amendment, which protects against excessive

force in the course of an arrest, requires that we examine the

objective reasonableness of a particular use of force to

determine whether it was indeed excessive. Graham v.

Connor, 490 U.S. 386, 394–95, 398 (1989); see also Maxwell

v. Cnty. of San Diego, 697 F.3d 941, 951 (9th Cir. 2012). To

assess objective reasonableness, we weigh “the nature and

quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing governmental

interests at stake.” Graham, 490 U.S. at 396 (citation and

internal quotation marks omitted).

8 GRAVELET-BLONDIN V. SHELTON

Here, the intrusion on Blondin’s Fourth Amendment

interests—the discharge of a taser in dart mode upon

him—involved an intermediate level of force with

“physiological effects, [] high levels of pain, and foreseeable

risk of physical injury.” Bryan, 630 F.3d at 825.

Graham provides a non-exhaustive list of factors to

consider in determining the governmental interests at stake,

including “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.” Graham, 490 U.S. at

396. Each factor reveals the unreasonableness of the use of

intermediate force against Blondin.

First, as we explain below, a fact question remains as to

whether there was sufficient probable cause to arrest Blondin

for obstruction. Even if he committed a crime, though, that

crime—failing to immediately comply with an officer order

to get back from the scene of an arrest, when he was already

standing thirty-seven feet away—was far from severe. See

Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir.

2007) (trespassing and obstructing a police officer were not

“serious offenses”); see also Smith v. City of Hemet, 394 F.3d

689, 702 (9th Cir. 2005) (en banc) (domestic violence suspect

was not “particularly dangerous,” and his offense was not

“especially egregious”).

Second, there was no reason to believe, based on

Blondin’s behavior, demeanor, and distance from the officers,

that he posed an immediate threat to anyone’s safety. In

urging that officers reasonably could have thought Blondin

posed such a threat, Defendants rely primarily on the officers’

perception that Blondin was standing too close to them,

GRAVELET-BLONDIN V. SHELTON 9

between six and twenty feet away, and that he “never

manifested a benign motive.” The argument that Blondin was

less than twenty-one feet from officers—which Defendants

identify as “the threshold for danger” —improperly resolves

a fact question in their own favor. Construing the facts in

Blondin’s favor, as we must, he was standing thirty-seven

feet away. Blondin’s failure to affirmatively exhibit a

“benign motive” is likewise insufficient to demonstrate that

he reasonably could have been perceived as posing an

immediate threat, especially in light of witness testimony that

he was perceptibly frozen with fear.

Defendants also urge us to consider Jack’s then-unlocated

gun as a basis for the officers’ belief that Blondin posed a

threat. As the district court observed, the officers’ purported

fear that Blondin might have a gun was “based on nothing

more than the reality that any civilian could be armed,

speculation that fails to distinguish [Blondin] from any

bystander at a crime scene.” See Deorle v. Rutherford,

272 F.3d 1272, 1281 (9th Cir. 2001) (“[A] simple statement

by an officer that he fears for his safety or the safety of others

is not enough; there must be objective factors to justify such

a concern.”), cert. denied, 536 U.S. 958 (2002).

Finally, Blondin did not resist arrest or attempt to escape.

While “purely passive resistance can support the use of some

force, [] the level of force an individual’s resistance will

support is dependent on the factual circumstances underlying

that resistance.” Bryan, 630 F.3d at 830. In City of Hemet,

for example, we addressed the nature of resistance exhibited

by “an individual who continually ignored officer commands

to remove his hands from his pockets and to not re-enter his

home,” and who “physically resisted” for a brief time. Id.

(quoting City of Hemet, 394 F.3d at 703) (internal quotation

10 GRAVELET-BLONDIN V. SHELTON

marks omitted). Though the individual “was not perfectly

passive,” id., we emphasized that his resistance was not

“particularly bellicose” and as a result concluded that the

third Graham factor offered little support for the use of

significant force against him. City of Hemet, 394 F.3d at 703.

Here, Blondin stood still for approximately fifteen

seconds after receiving the first order to “get back,” which

was given simultaneously with a contradictory order to

“stop.” Even less time passed, then, between Sgt. Shelton’s

subsequent, unequivocal “get back” command and the tasing.

Though Blondin did not retreat during this brief period, he

was perfectly passive, engaged in no resistance, and did

nothing that could be deemed “particularly bellicose.”

In evaluating objective reasonableness, we often must

look beyond Graham’s enumerated factors and consider other

elements relevant to the totality of the circumstances. Bryan,

630 F.3d at 826. As we have noted in the domestic violence

context, the “danger that the overall situation pose[s] to the

officers’ safety and what effect that has on the reasonableness

of the officers’ actions” may be an appropriate consideration.

Mattos, 661 F.3d at 450. Here, officers testified that suicide

calls present unique risks. Suicidal individuals can quickly

turn homicidal and may engage police officers in an effort to

commit “suicide by cop.” But unlike in Mattos, where the

individual who resisted officer orders and was ultimately

tased was the suspected victim in the domestic violence call,

and therefore integrally involved in the volatile situation to

which officers were responding, Blondin was a bystander

thirty-seven feet away without any perceptible connection to

the underlying crime—Jack’s attempted suicide. It strains

GRAVELET-BLONDIN V. SHELTON 11

logic to attribute any of the dangers involved in responding to

suicide calls to him.5

Finally, as we have recognized before, the absence of a

warning of the imminent use of force, when giving such a

warning is plausible, weighs in favor of finding a

constitutional violation. See Mattos, 661 F.3d at 451; Deorle,

272 F.3d at 1283–84. Here, though Sgt. Shelton gave such a

warning, he did so as he fired his taser, leaving Blondin no

time to react and rendering the warning meaningless.

Taking the evidence in the light most favorable to the

Blondins, a reasonable factfinder could conclude that Sgt.

Shelton’s use of force was unreasonable and excessive, in

violation of the Fourth Amendment.

2. Qualified Immunity

Even so, Sgt. Shelton is entitled to qualified immunity if

his conduct did not “violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Having concluded that Sgt. Shelton may indeed have used

excessive force in violation of the Fourth Amendment, we

now consider whether the right to be free from such force was

clearly established at the time of the incident. See Mattos,

661 F.3d at 446.

5

We agree with the dissent that officers responding to suicide calls face

a risk that the suspect may attempt to “go out in a blaze of glory,” and we

accept that Jack potentially posed such a threat. We fail to grasp the

attribution of any part of that threat to Blondin.

12 GRAVELET-BLONDIN V. SHELTON

“For a constitutional right to be clearly established, its

contours must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.”

Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citation and

internal quotation marks omitted). We bear in mind,

however, that “officials can still be on notice that their

conduct violates established law even in novel factual

circumstances.” Id. at 741. We are “particularly mindful of

this principle in the context of Fourth Amendment cases,

where the constitutional standard—reasonableness—is

always a very fact-specific inquiry.” Mattos, 661 F.3d at 442.

But while there need not be a “case directly on point, []

existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd,

131 S. Ct. 2074, 2083 (2011).

The right to be free from the application of non-trivial

force for engaging in mere passive resistance was clearly

established prior to 2008. See Nelson v. City of Davis,

685 F.3d 867, 881 (9th Cir. 2012) (cases dating back to 2001

have established that “[a] failure to fully or immediately

comply with an officer’s orders neither rises to the level of

active resistance nor justifies the application of a non-trivial

amount of force”). In Deorle, for example, we held that

shooting a beanbag projectile at a suicidal, irrational

individual who was walking directly towards an officer was

excessive, given that the crime he committed was minor, the

danger to the officer and others was minimal, there was no

immediate need to subdue him, and he was not given any

warning that he would be shot if he continued to approach the

officer. 272 F.3d at 1282. We also denied qualified

immunity, concluding that every police officer should have

known that it was objectively unreasonable to use such force

under those circumstances. Id. at 1285. In Headwaters

GRAVELET-BLONDIN V. SHELTON 13

Forest Def. v. Cnty. of Humboldt, 276 F.3d 1125 (9th Cir.

2002), we considered the use of pepper spray to subdue,

remove, or arrest nonviolent protesters and held that “[t]he

law regarding a police officer’s use of force against a passive

individual was sufficiently clear” in 1997 to put officers on

notice that such force was excessive. Id. at 1131.

Though these cases do not concern tasers, they need not.

As we explained in Deorle, “[i]t does not matter that no case

of this court directly addresses the use of [a particular

weapon]; we have held that ‘[a]n officer is not entitled to

qualified immunity on the grounds that the law is not clearly

established every time a novel method is used to inflict

injury.’” 272 F.3d at 1286 (quoting Mendoza v. Block,

27 F.3d 1357, 1362 (9th Cir. 1994)). Indeed, even absent

taser-specific case law, three of our sister circuits have held

that the law was clearly established, prior to 2008, that the

use of a taser can in some instances constitute excessive

force.6

6

See Shekleton v. Eichenberger, 677 F.3d 361, 366–67 (8th Cir. 2012)

(clearly established as of 2008 that tasing “an unarmed suspected

misdemeanant, who did not resist arrest, did not threaten the officer, did

not attempt to run from him, and did not behave aggressively towards

him” was excessive); Cavanaugh v. Woods Cross City, 625 F.3d 661, 667

(10th Cir. 2010) (clearly established as of 2006 that a police officer could

not tase “a nonviolent misdemeanant who did not pose a threat and was

not resisting or evading arrest without first giving a warning”); Brown v.

City of Golden Valley, 574 F.3d 491, 497 (8th Cir. 2009) (clearly

established as of 2005 that tasing an individual who “posed at most a

minimal safety threat . . . and was not actively resisting arrest or

attempting to flee” was unconstitutional); Oliver v. Fiorino, 586 F.3d 898,

906–08 (11th Cir. 2009) (clearly established as of 2004 that it was

excessive to tase multiple times an individual who had engaged in a brief

physical struggle with a police officer, because, after the first tasing, the

individual was immobilized). These cases are not at odds with our own

14 GRAVELET-BLONDIN V. SHELTON

Still, relying on our grants of qualified immunity in Bryan

and Mattos, Defendants argue that the law was insufficiently

clear before 2010—when we first identified tasers in dart

mode as an intermediate level of force, Bryan, 630 F.3d at

826—to put Sgt. Shelton on notice that his use of a taser

against Blondin was excessive. But this case is factually

distinguishable from Bryan and Mattos in one critical respect:

Blondin engaged in no behavior that could have been

perceived by Sgt. Shelton as threatening or resisting. As a

result, the use of non-trivial force of any kind was

unreasonable.

Though none of the plaintiffs in Bryan and Mattos

engaged in serious resistance, each either took an affirmative

step to contravene officer orders or engaged in behavior that

posed some threat to officer safety. In Bryan, after being

pulled over for a seatbelt infraction and ordered to stay in the

car, Bryan exited his car, acted belligerent, and ignored

repeated orders to get back in the car. 630 F.3d at 822. We

interpreted even this behavior as “passive” or “minor”

resistance, rather than “truly active resistance.” Id. at 830.

Like Bryan, Brooks, the first of two plaintiffs addressed

in Mattos, was pulled over for a traffic violation after which

she refused to comply with officer orders. 661 F.3d at 443.

Brooks then physically resisted officers’ attempts to remove

her from the car by keeping her hands on the steering wheel.

prior opinions granting qualified immunity because the law regarding

tasers was insufficiently clear—namely, Bryan, 630 F.3d 805, and Mattos,

661 F.3d 433. The extent to which the law is “clearly established” in the

Fourth Amendment reasonableness context is fact-specific, and none of

these out-of-circuit cases are factually analogous to Bryan or Mattos.

GRAVELET-BLONDIN V. SHELTON 15

Id. at 443, 445 (noting that “Brooks engaged in some

resistance to arrest”).

Finally, Mattos, a suspected domestic violence victim,

was physically blocking officer access to the suspect, her

husband, and put her hands on an officer when he tried to

pass by her to arrest her husband. Id. at 439. When the

officer asked Mattos if she was “touching an officer,” she did

not respond, did not move aside, and, ignoring the officer,

urged another officer to move the confrontation outside. Id.

Here, evaluating the situation from Sgt. Shelton’s

perspective, Blondin—who, unlike Bryan, Brooks, and

Mattos, had no connection to the underlying crime—

committed no act of resistance. He took no affirmative step

to violate an officer order (Bryan), did not physically resist

officers (Brooks), and neither made physical contact with an

officer nor tried to interfere with efforts to arrest a suspect

(Mattos). His momentary failure to move farther than thirty-

seven feet away from officers arresting his neighbor,7 after

merely inquiring into what those officers were doing, can

hardly be considered resistance. This is especially so given

evidence that Blondin was visibly frozen with fear.

7

The dissent takes issue with our characterization of Blondin’s failure

to respond to the “get back” order as “momentary,” urging that Blondin

“refus[ed] to comply with officers’ orders” for fifteen seconds. As we

have explained, though, fifteen seconds passed between the simultaneous

conflicting commands to “get back” and to “stop”—orders with which

Blondin at least partially complied—and the tasing. After Blondin

complied with the initial orders, either by simply stopping or by stepping

back and then stopping, Sgt. Shelton ran at him, taser pointed, yelling at

him to “get back.” It is the time from this unequivocal “get back”

command to the tasing, less than fifteen seconds, that matters.

16 GRAVELET-BLONDIN V. SHELTON

Having determined that the right to be free from the

application of non-trivial force for engaging in passive

resistance was clearly established prior to 2008, we proceed

to the second part of our constitutional inquiry,8 considering

a question that was not before us in Bryan or Mattos: whether

it was clear in 2008 that using a taser in dart mode was non-

trivial.9

In 2005 we acknowledged that tasers, like stunbag

shotguns, are one of a “variety of non-lethal ‘pain

compliance’ weapons used by police forces.” San Jose

Charter of Hells Angels Motorcycle Club v. City of San Jose,

8

The dissent’s concern that we frame our inquiry in terms of “non-trivial

force” broadly, treating all “non-trivial force” alike, ignores this taser-

specific portion of our constitutional inquiry entirely.

9

Even had the facts of Bryan or Mattos called for such an inquiry, the

answer in those cases might well have been “no.” The dearth of case law

regarding this “relatively new implement of force,” Bryan, 630 F.3d at 833

(citation and internal quotation marks omitted), animated our grants of

qualified immunity in those cases. In Bryan, for example, we emphasized

that as of 2005 “there was no Supreme Court decision or decision of our

court addressing” the force involved in using a taser in dart mode. Id.

In Mattos, reviewing two taser cases involving unrelated incidents in

2004 and 2006, we noted that there were only three circuit court opinions

concerning taser use at the time of those incidents—Russo v. City of

Cincinnati, 953 F.2d 1036 (6th Cir. 1992), Hinton v. City of Elwood,

997 F.2d 774 (10th Cir. 1993), and Draper v. Reynolds, 369 F.3d 1270

(11th Cir. 2004)—and each “reject[ed] claims that the use of a taser

constituted excessive force.” 661 F.3d at 446–48. Underscoring the

absence of a single circuit case finding a Fourth Amendment violation, we

could not conclude “that every reasonable officer would have understood

. . . beyond debate” that tasing the plaintiffs, Brooks and Mattos,

constituted excessive force. Id. at 448 (citation and internal quotation

marks omitted).

GRAVELET-BLONDIN V. SHELTON 17

402 F.3d 962, 969 (9th Cir. 2005). By 2008, the Tenth

Circuit and a number of district courts had found taser use

unconstitutionally excessive in some circumstances. Because

“[a]bsent binding precedent, we look to all available

decisional law, including the law of other circuits and district

courts, to determine whether [a] right was clearly

established,” Inouye v. Kemna, 504 F.3d 705, 714 (9th Cir.

2007) (citation and internal quotation marks omitted), those

decisions are relevant here. See Sorrels v. McKee, 290 F.3d

965, 971 (9th Cir. 2002) (“[U]npublished decisions of district

courts may inform our qualified immunity analysis.”).

In 2007, the Tenth Circuit held that using a taser

immediately and without warning against a misdemeanant

who did not “present[] an immediate threat of death or serious

injury to himself or others” was unconstitutionally excessive.

Casey v. City of Fed. Heights, 509 F.3d 1278, 1286 (10th Cir.

2007) (internal quotation marks omitted). The court

distinguished prior taser cases in which no Fourth

Amendment violation was found, explaining that what had

justified taser use in the Tenth Circuit’s own earlier case,

Hinton v. City of Elwood, was “active resistance to arrest.”

Id. (citing Hinton, 997 F.2d at 776–77, 781). As to the

Eleventh Circuit’s previous taser case, Draper v. Reynolds,

the court explained that, though it might have decided that

case differently, the plaintiff there had been “belligerent and

hostile,” and had refused five officer commands. Id. (citing

Draper, 369 F.3d at 1276–77). The court in Casey ultimately

denied qualified immunity because the tasing so clearly failed

the Graham reasonableness test—there were “no substantial

grounds for a reasonable officer to conclude that there was a

legitimate justification” for tasing the plaintiff—that it

violated clearly established law. Id. at 1286 (citation and

internal quotation marks omitted).

18 GRAVELET-BLONDIN V. SHELTON

Also in 2007, a district court in the Western District of

Washington, within which Defendants operate, held that

tasers constitute “significant force.” Beaver v. City of Fed.

Way, 507 F. Supp. 2d 1137, 1144 (W.D. Wash. 2007), aff’d,

301 F. App’x 704 (9th Cir. 2008). Examining whether such

force was objectively reasonable against a suspected felon

who, after fleeing the scene, had already been tased by

another officer three times, the court held that a fourth tasing

was excessive in light of the absence of active resistance. Id.

at 1144–46. In reaching that conclusion, the court noted that,

“[a]lthough infliction of pain as a motivator is not the primary

function of a properly deployed [t]aser, pain is a necessary

byproduct of its use.” Id. at 1143. The court granted

qualified immunity, however, finding that the law in 2004

was not sufficiently well-established to have alerted officers

that this use of force was unconstitutional.

Another decision from the Western District of

Washington in 2006 likewise found taser use to be excessive,

observing that the tasing was unnecessary to effectuate the

arrest or to protect officers’ safety. Harris v. Cnty. of King,

C05-1121C, 2006 WL 2711769, at *3 (W.D. Wash. Sept. 21,

2006). In denying qualified immunity, the district court noted

“the intuitively gratuitous nature of administering painful

electric shocks to an arrestee who is passively complying

with an officer’s orders.” Id. at *4.

We do not look to these cases to establish Blondin’s right

to be free from non-trivial force in response to his total lack

of resistance—as discussed above, that right was established

within our own circuit as early as 2001, such that, by 2008, it

was “beyond debate” that using non-trivial force in response

to such passive bystander behavior would be

unconstitutionally excessive. al-Kidd, 131 S. Ct. at 2083.

GRAVELET-BLONDIN V. SHELTON 19

Instead, they support our determination that, though the

specific level of force involved in using a taser was not clear

until 2010, it was well known as of 2008 that a taser in dart

mode constitutes more than trivial force. Sgt. Shelton is

therefore not entitled to qualified immunity.

3. Municipal Liability

While local governments may be sued under § 1983, they

cannot be held vicariously liable for their employees’

constitutional violations. Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 690, 694 (1978). Instead, a municipality is

subject to suit under § 1983 only “if it is alleged to have

caused a constitutional tort through ‘a policy statement,

ordinance, regulation, or decision officially adopted and

promulgated by that body’s officers.’” City of St. Louis v.

Praprotnik, 485 U.S. 112, 121 (1988) (quoting Monell,

436 U.S. at 690).

A plaintiff seeking to establish municipal liability must

demonstrate, moreover, that the government “had a deliberate

policy, custom, or practice that was the ‘moving force’

behind the constitutional violation he suffered.” Galen v.

County of L.A., 477 F.3d 652, 667 (9th Cir. 2007) (quoting

Monell, 436 U.S. at 694–95). To meet this requirement, the

plaintiff must show both causation-in-fact and proximate

causation. Harper v. City of Los Angeles, 533 F.3d 1010,

1026 (9th Cir. 2008). The Blondins’ excessive force claim

against the City is based on both the City’s policy regarding

tasers generally, and its ratification of Sgt. Shelton’s use of a

taser in this case.

We turn first to the City’s policy, no longer in effect,

defining tasers as a low level of force—lower than any other

20 GRAVELET-BLONDIN V. SHELTON

hands-on force, including a firm grip. Sgt. Shelton, at one

time a taser instructor for the Snohomish Police Department,

described the policy as classifying tasers as a “low,” “very

low,” or “very, very low” level of force. He also explained

that, pursuant to the City’s taser policy, “I don’t need to be

threatened to use a taser.” The City concedes that its former

policy was unconstitutional but contends the policy did not

cause Sgt. Shelton’s use of unconstitutionally excessive force

in this case.

At first blush, the City’s evidence seems to support its

argument: Sgt. Shelton has testified that he did not tase

Blondin because of any particular City policy, and that he

believes he could have used even greater force on Blondin.

But a year after the incident in this case, in response to a

performance evaluation regarding a different incident that

reprimanded Sgt. Shelton for being “too quick to apply the

taser when basic hands on defensive tactics would have

brought the subject into compliance,” Sgt. Shelton wrote that

he had “never [t]asered anyone inappropriately or out of

policy” (emphasis added). This statement reflects Sgt.

Shelton’s belief that all of his taser deployments, including,

of course, the one at issue here, were consistent with City

policy. As one of Defendants’ experts acknowledged, police

department policy “tends to affect officer behavior.”

Given this evidence, Sgt. Shelton’s testimony that he did

not tase Blondin because of a specific City policy means

little. No one contends the City had a policy requiring

officers to tase non-threatening suspects such that Blondin’s

tasing could have occurred because a specific policy directed

it. Instead, the City’s policy told Sgt. Shelton that tasing non-

resisting individuals in circumstances like this one was

acceptable. It informed him that even a firm grip entails

GRAVELET-BLONDIN V. SHELTON 21

more force than a taser and deputized him with the power to

tase an individual who presents no threat at all. A reasonable

factfinder could look at this incident, in which Sgt. Shelton

acted in accordance with a policy he claims never to have

departed from, and conclude that such policy was the moving

force behind his use of the taser in this case.

The Blondins alternatively allege that the City should be

held liable for ratifying Sgt. Shelton’s unconstitutional

conduct. “[A] local government may be held liable under

§ 1983 when ‘the individual who committed the

constitutional tort was an official with final policy-making

authority’ or such an official ‘ratified a subordinate’s

unconstitutional decision or action and the basis for it.’”

Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1250 (9th

Cir. 2010) (quoting Gillette v. Delmore, 979 F.2d 1342,

1346–47 (9th Cir. 1992)); see also Praprotnik, 485 U.S. at

127 (“If [] authorized policymakers approve a subordinate’s

decision and the basis for it, their ratification would be

chargeable to the municipality because their decision is

final.”).

In a footnote, the district court found it unnecessary to

reach the Blondins’ ratification-based Monell claim “because

the City readily admits that its policy classifies the taser as a

low level of force.” It is unclear why the district court

thought this admission would impact the ratification

argument, which is not based on the City’s taser policy.

Because the two theories of liability are different, after

rejecting the first the court should have proceeded to consider

the second. Both remain available to the Blondins on

remand.

22 GRAVELET-BLONDIN V. SHELTON

B. Unlawful Arrest

“A claim for unlawful arrest is cognizable under § 1983

as a violation of the Fourth Amendment, provided the arrest

was without probable cause or other justification.” Lacey v.

Maricopa Cnty., 693 F.3d 896, 918 (9th Cir. 2012) (en banc)

(citation and internal quotation marks omitted). “Probable

cause exists if the arresting officers ‘had knowledge and

reasonably trustworthy information of facts and

circumstances sufficient to lead a prudent person to believe

that [the arrestee] had committed or was committing a

crime.’” Maxwell v. Cnty. of San Diego, 697 F.3d 941, 951

(9th Cir. 2012) (quoting United States v. Ricardo D.,

912 F.2d 337, 342 (9th Cir. 1990)).

Blondin was arrested under the following provision of

Washington law: “A person is guilty of obstructing a law

enforcement officer if the person willfully hinders, delays, or

obstructs any law enforcement officer in the discharge of his

or her official powers or duties.” Wash. Rev. Code

§ 9A.76.020(1). The district court concluded that Sgt.

Shelton had probable cause to arrest Blondin because he

failed to back away when ordered to do so.

Defendants’ motion for summary judgment before the

district court addressed the Blondins’ unlawful arrest claim

only in a footnote, urging that the same qualified immunity

arguments offered with regard to excessive force should

apply to the unlawful arrest claim, as well. In granting

Defendants’ motion, the district court erroneously treated the

Blondins’ unlawful arrest claim as a common law “false

arrest” claim. Within that framework, and applying state law,

it determined that there was probable cause for the arrest. We

disagree.

GRAVELET-BLONDIN V. SHELTON 23

The obstruction statute under which Blondin was arrested

has four elements: “(1) an action or inaction that hinders,

delays, or obstructs the officers; (2) while the officers are in

the midst of their official duties; (3) the defendant knows the

officers are discharging a public duty; (4) the action or

inaction is done knowingly.” Lassiter v. City of Bremerton,

556 F.3d 1049, 1053 (9th Cir. 2009) (citing Wash. Rev. Code

§ 9A.76.020). The dispute here centers on the first

element—namely, whether officers had probable cause to

believe Blondin had engaged in an action or inaction that

hindered, delayed, or obstructed the officers.10

In Lassiter, we considered an obstruction arrest made by

officers responding to a domestic violence call with

information that the suspect had threatened to cut his wife’s

throat. Id. When officers asked the suspect to sit down so

that they could keep him away from possible weapons and

ensure the alleged victim’s safety, he refused to sit and then

grabbed the arm of an officer who tried to guide him to a

chair, at which point the officer “pushed him to the floor and

handcuffed him.” Id. at 1051. Because the suspect’s behavior

involved “[m]ore than just a momentary noncompliance with

police orders,” “made it impossible for the police to carry out

their duty,” and “had the practical effect of precluding the

officers from securing the scene and investigating a possible

assault,” we determined there was probable cause to arrest

him for obstruction. Id. at 1053.

10

The Blondins also contend that Sgt. Shelton lacked probable cause as

to the fourth element, urging that a 1994 amendment to the obstruction

statute added a specific intent requirement and there was no basis for

suspecting Blondin had such specific intent. But the Washington Supreme

Court foreclosed this argument when it held that the 1994 amendment did

not change the statute’s mens rea requirement. Bishop v. City of Spokane,

173 P.3d 318, 321 (Wash. 2007).

24 GRAVELET-BLONDIN V. SHELTON

In reaching that conclusion, we found it helpful to

distinguish a prior case, MacKinney v. Nielson, 69 F.3d 1002

(9th Cir. 1995). See Lassiter, 556 F.3d at 1053. In

MacKinney, the plaintiff was writing messages critical of the

police on a public sidewalk using sidewalk chalk when an

officer ordered him to stop writing. 69 F.3d at 1004. Before

stopping, he proceeded to underline the last phrase of his

message. Id. We held there was no probable cause to arrest

MacKinney for obstruction for that momentary

noncompliance. Id.

The district court’s finding of probable cause in this case

relies heavily on State v. Lalonde, 665 P.2d 421 (Wash.

1983).11 There, officers responding to a complaint of a loud

party became involved in physical altercations with underage

partygoers. Id. at 423. Lalonde approached an officer to “try

to talk to him and calm things down.” Id. Though Lalonde

“was told several times to get back, and was physically forced

back when he approached the officers, he continued to

reapproach and persisted in his attempt to ‘keep things

calm.’” Id. He was then arrested for obstruction. Id.

Affirming Lalonde’s conviction, the Washington Supreme

Court held that a person’s knowledge that an officer was

attempting to arrest someone, and their subsequent act of

“reapproaching and conversing with the officer,” could be

considered obstruction. Id. at 426. The court emphasized

that Lalonde had admitted he was attempting to get the

officers to stop what they were doing and made clear that his

11

Beyond key factual differences, Lalonde involved a criminal appeal

from an obstruction conviction, so the Washington Supreme Court was

interpreting the evidence in the light most favorable to the government,

contrary to our review here. Lalonde, 665 P.2d at 425.

GRAVELET-BLONDIN V. SHELTON 25

obstruction was in “the acts which accompanied his words.”

Id.

Here, in contrast, Blondin did not continue to reapproach

after he was ordered to stop and get back. He did not persist

in inquiring after his neighbor, and there is no evidence that

he was attempting to get the officers to stop what they were

doing. He engaged in none of the acts Lalonde found

obstructionist; instead, like the plaintiff in MacKinney,

Blondin failed to comply “for only a few seconds.”

MacKinney, 69 F.3d at 1006. A genuine issue of fact

therefore remains as to whether there was probable cause to

arrest Blondin for obstruction, and, as a result, whether doing

so violated his constitutional rights.

Because the district court analyzed unlawful arrest as a

state law claim, it failed to consider qualified immunity or

Monell liability and should do so on remand. See

Richardson v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010)

(declining to reach qualified immunity because it was not

addressed by the district court); Burke v. Cnty. of Alameda,

586 F.3d 725, 734 (9th Cir. 2009) (remanding for district

court to examine Monell liability in the first instance).

C. Common Law Claims

We turn now to the Blondins’ common law claims for

malicious prosecution and outrage. A malicious prosecution

claim has five elements under Washington law: (1) the

defendant instituted or continued a prosecution against the

plaintiff; (2) without probable cause; (3) with malice; (4) the

prosecution terminated in the plaintiff’s favor; and (5) the

plaintiff was injured or damaged as a result of the

prosecution. Lassiter, 556 F.3d at 1054 (citing Clark v.

26 GRAVELET-BLONDIN V. SHELTON

Baines, 84 P.3d 245, 248–49 (Wash. 2004)). The parties

dispute only the second element—the basis on which the

district court granted summary judgment. See Hanson v. City

of Snohomish, 852 P.2d 295, 298 (Wash. 1993) (probable

cause is a defense to the tort of malicious prosecution).

Having concluded that Sgt. Shelton may have lacked

probable cause to arrest Blondin, we reverse the grant of

summary judgment in favor of Defendants on the malicious

prosecution claim.

Washington’s “outrage” tort provides a cause of action for

conduct “so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and

to be regarded as atrocious, and utterly intolerable in a

civilized community.” Kloepfel v. Bokor, 66 P.3d 630, 632

(Wash. 2003) (quoting Grimsby v. Samson, 530 P.2d 291, 295

(Wash. 1975)) (internal quotation marks omitted). To prove

outrage, a plaintiff must establish “(1) extreme and

outrageous conduct, (2) intentional or reckless infliction of

emotional distress, and (3) actual result to plaintiff of severe

emotional distress.” Id. “Although the three elements are

fact questions for the jury, th[e] first element of the test goes

to the jury only after the court ‘determine[s] if reasonable

minds could differ on whether the conduct was sufficiently

extreme to result in liability.’” Robel v. Roundup Corp.,

59 P.3d 611, 619 (Wash. 2002) (quoting Dicomes v. State,

782 P.2d 1002, 1013 (Wash. 1989)).

The district court granted summary judgment to

Defendants because Ms. Blondin failed to show that (1) she

was particularly susceptible to emotional distress and that

Sgt. Shelton knew as much, and (2) Sgt. Shelton knew she

could observe him tasing her husband. These conclusions are

incorrect.

GRAVELET-BLONDIN V. SHELTON 27

The Washington Supreme Court addressed “unique

susceptibility” as a relevant inquiry in Contreras v. Crown

Zellerbach Corp., 565 P.2d 1173 (Wash. 1977), an outrage

case based on racial discrimination, slurs, and comments. Id.

at 1174. Contreras explained that the defendants “knew or

should have known that by reason of [the plaintiff’s] Mexican

nationality and background he was particularly susceptible to

emotional distress as a result of [their] conduct.” Id. at 1177.

The plaintiff was not required to show any particular

susceptibility, beyond his status as a racial minority, to

establish that defendants should have known that racially

derogatory behavior would cause him emotional distress.

Here, Ms. Blondin was uniquely susceptible to emotional

distress in observing the tasing of her husband by virtue of

being his wife. There are sufficient facts—including Sgt.

Shelton’s threat to Ms. Blondin after tasing her husband,

which indicates an awareness on his part that the two were a

pair—to establish that Sgt. Shelton knew or should have

known that Ms. Blondin was susceptible to emotional distress

as a result of observing the tasing of her husband.

In determining that the Blondins failed to establish that

Sgt. Shelton knew Ms. Blondin was in the vicinity and could

observe her husband’s tasing, the district court improperly

resolved a fact question in Sgt. Shelton’s favor. It explained

that “[o]ne of the officers testified during his deposition that

[Ms. Blondin] was still on her own property when the officers

handcuffed [Blondin].” This statement falls far short of

establishing whether Ms. Blondin was close enough to see the

tasing, or whether Sgt. Shelton knew as much. That after

threatening Blondin with further tasing Sgt. Shelton turned to

Ms. Blondin, warning that she was “next,” certainly suggests

she was close enough to observe the incident, and that Sgt.

Shelton knew exactly where she was. Whether this incident

28 GRAVELET-BLONDIN V. SHELTON

was “extreme and outrageous” is for a factfinder to

determine.

IV. CONCLUSION

In light of the foregoing, we reverse the grant of qualified

immunity to Sgt. Shelton and the grant of summary judgment

to the City on the Blondins’ excessive force claim. We also

reverse the district court’s grant of summary judgment based

on the determination that probable cause existed for

Blondin’s arrest, and we remand for further proceedings on

the unlawful arrest claim. Finally, we reverse the grant of

summary judgment on the Blondins’ common law claims.

REVERSED AND REMANDED.

NGUYEN, Circuit Judge, dissenting:

The majority goes badly astray because it loses sight of

the specific context of this case and employs hindsight rather

than viewing the scene through the eyes of a reasonable

officer. Blondin interjected himself into a rapidly-evolving,

highly volatile scene: officers struggling to restrain a

combative, armed man in the process of trying to take his

own life. At the time Blondin was tased, two loaded firearms

were unsecured. Yet, at every turn, the majority attempts to

minimize the precariousness of the situation, thinly splicing

the facts to assess Blondin’s conduct—and the reasonableness

of the officers’ response—in a vacuum. It is one thing to

resolve disputed facts and inferences in Blondin’s favor. But

the majority goes well beyond this by choosing to ignore

undisputed facts which do not favor Blondin’s case. By

GRAVELET-BLONDIN V. SHELTON 29

discounting the danger and abstracting the qualified immunity

inquiry, the majority’s approach fails to accord appropriate

deference to an officer’s reasonable judgment exercised under

exigent circumstances. Because the majority fails to follow

the Supreme Court’s dictate to assess the use of force “from

the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight[,]” Graham v.

Connor, 490 U.S. 386, 396 (1989), I respectfully dissent.

I.

A.

“Qualified immunity gives government officials breathing

room to make reasonable but mistaken judgments about open

legal questions.” Ashcroft v. al-Kidd, — U.S. —, 131 S. Ct.

2074, 2085 (2011). The doctrine 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 v. Fitzgerald, 457 U.S. 800, 818 (1982). In

evaluating whether a constitutional right was clearly

established at the time of the conduct, the Supreme Court has

instructed us to ask whether its contours were “‘sufficiently

clear’ that every ‘reasonable official would have understood

that what he is doing violates that right.’” al-Kidd, 131 S. Ct.

at 2083 (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). While “[w]e do not require a case directly on

point, . . . existing precedent must have placed the statutory

or constitutional question beyond debate.” Id.

In applying the “clearly established” rule, we must be

careful to “faithfully guard[] ‘the need to protect officials

who are required to exercise their discretion and the related

30 GRAVELET-BLONDIN V. SHELTON

public interest in encouraging the vigorous exercise of

official authority.’” Mattos v. Agarano, 661 F.3d 433, 442

(9th Cir. 2011) (en banc) (quoting Harlow, 457 U.S. at 807).

“We must also allow ‘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.’”

Id. (quoting Graham, 490 U.S. at 396–97).

B.

Was the law sufficiently clear on the evening of May 4,

2008 such that any reasonable officer would have known that

tasing Blondin for two seconds was an excessive use of force

in light of the specific circumstances? I think not.

For starters, consider the undisputed facts. Officers

responded to a 911 call regarding a suicide-in-progress.

Suicide calls are dangerous, as a suicidal suspect can quickly

become homicidal. Any officer attempting to stop someone

in the process of committing suicide faces a risk that the

suspect will try to take out others along with him, or choose

to “go out in a blaze of glory” and open fire in the hope that

he will be gunned down by return fire (known colloquially as

“suicide-by-cop”). Here, moreover, the officers had been

specifically warned by the person who called 911 (a family

member of the suicidal man, Jack Hawes) that Hawes owned

a gun and would have it with him.

When the officers arrived, they observed Hawes sitting in

his vehicle, running an exhaust pipe into one of the windows.

They couldn’t see his weapon. Hawes complied with their

orders to step out of the vehicle, but refused to obey orders to

GRAVELET-BLONDIN V. SHELTON 31

show his hands. A scuffle ensued as the officers attempted to

restrain, locate his weapon, and secure him.

Enter Blondin. Wearing shorts and slippers, Blondin

suddenly approached the scene, yelling “What are you doing

to Jack?” (Note the accusatory phrasing of this question: not

“What’s going on here?” or “Is everything alright, officers?”

but “What are you doing to Jack?”) Blondin’s presence and

question signaled to the officers that (1) Blondin was not a

random passerby, but someone who had come out of his

house to see what was going on; (2) Blondin knew the

suspect on a first name basis; and (3) Blondin was concerned

that the officers were “doing” something to his

friend/neighbor.

The parties dispute how far Blondin was standing from

the fray, but accepting Blondin’s view (as we must), he was

thirty-seven feet away from where Hawes was struggling with

the officers. This is not terribly far; to put it in perspective,

thirty-seven feet is little more than half the distance between

the pitcher’s mound and home plate.1 During his deposition

(and again in a declaration) Blondin recounted how, in

response to his question about what they were doing to Jack,

an officer yelled at him to “get back.”2 According to a

1

See Major League Baseball, http://mlb.mlb.com/mlb/official_info/

baseball_basics/on_the_field.jsp# (last visited Aug. 15, 2013) (distance

between the pitcher’s mound and home plate is 60 feet, 6 inches).

2

Although there is some evidence in the record indicating that one

officer also yelled at Blondin to stop, nothing in Blondin’s deposition

testimony or declaration indicates that he heard this order and tried to

comply, or even that he was confused about whether to stop or get back.

Rather, Blondin concedes that he knew he was ordered to “get back” but

explained that he failed to comply because: “I don’t know why.…I tried

32 GRAVELET-BLONDIN V. SHELTON

passerby who testified on Blondin’s behalf, officers ordered

Blondin to get back five or six separate times. Yet, for

approximately fifteen seconds, Blondin stood inexplicably

“frozen,” refusing to comply with officers’ orders. The

majority dismisses this as a mere “momentary failure to

move[,]” slip op. at 15, but fifteen seconds is a long time to

remain motionless when multiple police officers are yelling

at you to retreat. (Try counting to fifteen one-thousand out

loud, and see for yourself.)

Although the majority makes much of a passerby’s

testimony that, in his opinion, Blondin was frozen “with

fear,” slip op. at 9, Blondin did nothing that would

objectively convey to the officers why he was refusing to

back away. View the scene from a reasonable officer’s

perspective, as the Supreme Court tells us we must: officers

were in the midst of tense, rapidly-evolving circumstances,

trying to restrain a combative suicidal man with an unsecured

firearm. One of the officers, Deputy Bowman, had his back

facing the direction in which Blondin was approaching, with

a loaded, unsecured rifle slung on his back. Suddenly, a man

who knew the suspect purposely interjected himself into the

scene, demanded to know what was going on, and refused to

comply with repeated commands to retreat—even when

warned that he would be tased if he didn’t do so.

Even if we assume that Sgt. Shelton’s use of force was

excessive, why wasn’t his mistake reasonable? What

precedent existed in May 2008 such that every reasonable

officer would have understood that it was unlawful to tase

to make my feet move. I tried to get out of there, it just didn’t work.”

Moreover, it is undisputed that Blondin was ordered to “get back”

multiple times after the purportedly contradictory command to stop.

GRAVELET-BLONDIN V. SHELTON 33

Blondin for two seconds under these circumstances? Which

case placed this constitutional question “beyond debate” in

2008? al-Kidd, 131 S. Ct. at 2083. I don’t know. Nor is it

evident from the majority’s opinion, which, rather than

squarely addressing these questions, re-frames the inquiry

instead.

The issue here, the majority says, is whether “the right to

be free from non-trivial force for engaging in mere passive

resistance was clearly established prior to 2008.” Slip op. at

12; see also slip op. at 3 (“We must decide whether it was

clearly established as of 2008 that the use of a taser in dart

mode against a passive bystander amounts to

unconstitutionally excessive force within the meaning of the

Fourth Amendment.”). This formulation is wrong in two

respects. First, it contravenes the Supreme Court’s

instruction that the qualified immunity inquiry “must be

undertaken in light of the specific context of the case, not as

a broad general proposition.” Saucier, 533 U.S. at 201.

Indeed, the Court has expressly taken us to task for failing in

this regard. See al-Kidd, 131 S. Ct. at 2084 (“We have

repeatedly told courts—and the Ninth Circuit in

particular—not to define clearly established law at a high

level of generality.”) (internal citations omitted).3 I recognize

that the inquiry need not be so narrowly defined as to allow

3

There may be an exception to this rule: When “the defendant’s conduct

is so patently violative of the constitutional right that reasonable officials

would know without guidance from the courts that the action was

unconstitutional, closely analogous pre-existing case law is not required

to show that the law is clearly established.” Deorle v. Rutherford,

272 F.3d 1272, 1286 (9th Cir. 2001) (citation, internal quotation marks,

and alteration omitted). However, the majority does not appear to contend

that this case is so patently egregious such that officers required no

specific guidance from caselaw.

34 GRAVELET-BLONDIN V. SHELTON

the officers to “define away all potential claims.” Nelson v.

City of Davis, 685 F.3d 867, 883–84 (9th Cir. 2012) (quoting

Kelley v. Borg, 60 F.3d 664, 667 (9th Cir. 1995)). However,

by analyzing whether Blondin’s right was clearly established

without reference to the specific factual context, the majority

not only brushes off the Supreme Court’s instructions, it

departs from the same cases upon which it goes on to rely.

See, e.g., See Nelson v. City of Davis, 685 F.3d 867, 884 (9th

Cir. 2012) (“All that remains is to determine whether the law

was sufficiently clearly established that a reasonable officer

would have been on notice that the use of pepperball

projectiles directed towards [the plaintiff] and his friends was

unreasonable under the circumstances.”); Headwaters Forest

Def. v. Cnty. of Humboldt, 276 F.3d 1125, 1130 (9th Cir.

2002) (concluding that “it would be clear to a reasonable

officer that using pepper spray against the protestors was

excessive under the circumstances”).

Second, as I’ve already suggested, the majority’s factual

characterization is somewhat misleading. Blondin, for

example, was not a simply a “passive bystander[,]” slip op. at

3—he came out of his house in slippers, demanding to know

what the officers were “doing to Jack.” Likewise, describing

Blondin’s conduct as a “total lack of resistance,” slip op. at

18, obscures the undisputed fact that Blondin repeatedly

failed to comply with officers’ orders to retreat. While the

majority emphasizes that Blondin was initially given a

“contradictory” order to stop, slip op. at 10; see also slip op.

at 15, Blondin’s own testimony refutes the majority’s

supposition that he froze in an effort to comply, or out of

confusion. Dismissing Blondin’s non-compliance as “mere

passive resistance” also unfairly imports the benefit of

hindsight; in the heat of the moment, Sgt. Shelton didn’t know

whether Blondin’s resistance was going to be “merely”

GRAVELET-BLONDIN V. SHELTON 35

passive, or whether Blondin was going to suddenly bolt in

Hawes’s direction. In this sense, the majority’s post-hoc

confidence in Blondin’s passivity undercuts the very point of

the inquiry: whether, under the circumstances, an officer

could have reasonably interpreted Blondin’s inexplicable

non-compliance as a threat.

Lastly, even if the majority is correct that we may look to

cases which do not involve tasers, slip op. at 13, framing our

inquiry in terms of “non-trivial force” still paints with too

broad a brush. All “non-trivial force” is not created alike.

Here, specifically, the majority employs “non-trivial force”

to mean tasing someone for two seconds in dart mode. But

“non-trivial force” also covers, among other things, firing a

lead-filled beanbag round into someone’s face with enough

force to gouge out their eye, fracture their cranium, and leave

a lead shot embedded in their skull. See Deorle v.

Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001). Any

reasonable officer might know that the constitution would

prohibit firing a lead-filled beanbag round into Blondin’s face

from short range. But tasing him for two seconds? That’s a

much closer call. Thus, in my view, asking whether law

regarding the use of “non-trivial force” was clearly

established is not a fair benchmark by which to gauge an

reasonable officer’s understanding of the legality of his

actions.

Moreover, I fail to see how the cases relied upon by the

majority made the “contours [of Blondin’s right] sufficiently

clear that every reasonable official would have understood

that what [Sgt. Shelton did] violated that right.” Mattos,

661 F.3d at 442 (citation and internal quotation marks

omitted). While precedent need not be squarely on all fours,

see al-Kidd, 131 S. Ct. at 2083, we nevertheless require

36 GRAVELET-BLONDIN V. SHELTON

“closely analogous pre-existing case law” to show that the

law is clearly established. Deorle, 272 F.3d at 1275

(emphasis added).

Here, the cases which the majority concludes set forth

clearly established law are far from closely analogous. To

wit, it relies upon: (1) Nelson v. City of Davis, 685 F.3d 867

(9th Cir. 2012), in which an officer shot a college student in

the eye with a pepperball projectile without any warning,

causing him multiple surgeries, permanent eye injuries, and

ultimately the loss of his college scholarship, where the

student did not disobey police orders (which weren’t even

given until after the projectile was shot), but was merely part

of a large party that police were trying to break up, id. at

873–74, 881; (2) Deorle v. Rutherford, 272 F.3d 1272 (9th

Cir. 2001), which involved an officer who—again, without

warning—fired a lead-filled beanbag round into the face of an

unarmed suicidal man who had complied with officers’

instructions, resulting in the loss of the man’s left eye and

other serious injuries, id. at 1285–86; (3) Headwaters Forest

Def. v. Cnty. of Humboldt, 276 F.3d 1125 (9th Cir. 2002), in

which officers sprayed peaceful protestors in the face with

pepper spray from a few feet away, forcibly pried open

protesters’ eyes, and stuck in Q-tips containing pepper spray,

id. at 1128–29; and (4) Casey v. City of Fed. Heights,

509 F.3d 1278 (10th Cir. 2007), a Tenth Circuit case in which

a plaintiff who was peacefully returning to the courthouse

(where he had unsuccessfully challenged a traffic ticket) with

a file he should not have removed “had his shirt torn, and

then [was] tackled, Tasered, knocked to the ground by a bevy

of police officers, beaten, and Tasered again, all without

GRAVELET-BLONDIN V. SHELTON 37

warning or explanation[,]” id. at 1285.4 I strongly disagree

with the majority’s conclusion that, in light of this precedent,

every reasonable officer would know that tasing Blondin for

two seconds under the circumstances presented constituted

excessive force. See Mattos, 661 F.3d at 448.

One final point. In three recent cases involving the use of

tasers in dart mode, we granted officers qualified immunity

upon concluding that the law was not sufficiently clear as of

2005 and 2006 to render the alleged constitutional violations

clearly established. See Mattos v. Agarano, 661 F.3d 433,

452 (9th Cir. 2011) (en banc); Brooks v. City of Seattle,

reviewed jointly with Mattos, 661 F.3d at 443–48; Bryan v.

MacPherson, 630 F.3d 805, 833 (9th Cir. 2010). And, as the

district court correctly recognized, “[b]y May 2008, the state

of the law in this circuit was no clearer; no Supreme Court or

Ninth Circuit opinion was issued in the interim.” The

majority nevertheless asserts that Mattos, Brooks, and Bryan

are distinguishable in “one critical respect: Blondin engaged

in no behavior that could have been perceived by Sgt. Shelton

as threatening or resisting.” Slip op. at 14. This assertion,

however, is not only shaded with the benefit of hindsight, it

is inconsistent with undisputed facts in the record. Blondin

did engage in behavior that could have objectively been

perceived as resisting, if not threatening: for fifteen seconds

he refused to comply with officers’ repeated orders to back

away from a dangerous, volatile scene. Accordingly,

Blondin’s purported lack of resistance cannot justify

departing from the holdings in Mattos, Brooks, and Bryan.

4

The majority also mentions other out-of-circuit taser cases in a

footnote, slip op. at 13–14, n.6, for purposes of distinguishing them from

taser cases in our circuit. It does not, however, appear to rely on these

cases as support for its conclusion that the law was clearly established.

38 GRAVELET-BLONDIN V. SHELTON

*****

In sum, I believe that the law did not clearly establish that

Sgt. Shelton’s conduct violated Blondin’s constitutional

rights. I therefore would affirm the district court’s holding

that the officers are entitled to qualified immunity on

Blondin’s excessive force claim.

II.

The same errors which permeate the majority’s analysis

of Blondin’s excessive force claim also taint its discussion of

Blondin’s claims for unlawful arrest and malicious

prosecution. To succeed on both of these claims, Blondin

must establish the absence of probable cause. See Lacey v.

Maricopa Cnty., 693 F.3d 896, 918 (9th Cir. 2012) (en banc)

(“A claim for unlawful arrest is cognizable under § 1983 as

a violation of the Fourth Amendment, provided the arrest was

without probable cause or other justification.”) (citation

omitted) (emphasis added); id. at 919 (“To claim malicious

prosecution, a petitioner must allege that the defendants

prosecuted her with malice and without probable cause, and

that they did so for the purpose of denying her equal

protection or another specific constitutional right.”) (citation

and internal quotation marks omitted) (emphasis added).

Blondin was arrested for obstruction under a Washington

statute providing that “a person is guilty of obstructing a law

enforcement officer if the person willfully hinders, delays or

obstructs any law enforcement officer in the discharge of his

or her official powers or duties.” RCW 9A.76.020. Whether

there was probable cause to arrest Blondin for violating this

statute is a far easier hurdle to clear than the majority

suggests.

GRAVELET-BLONDIN V. SHELTON 39

In my view, the undisputed facts show that Sgt. Shelton

had probable cause to arrest Blondin for obstruction. As the

Supreme Court has explained, “it is clear that ‘only the

probability, and not a prima facie showing, of criminal

activity is the standard of probable cause.’” Illinois v. Gates,

462 U.S. 213, 235 (1983) (citation omitted). Under the

totality of circumstances, there was at least a reasonable

probability that Blondin’s knowing refusal to comply with

officers’ repeated orders to back away from an active crime

scene diverted their attention from performance of their

official duties and created a potential safety hazard. A

reasonable officer therefore had at least probable cause to

believe that Blondin was obstructing the officers’ efforts to

restrain Hawes and secure his firearm.

Accordingly, I would affirm the grant of summary

judgment on both the unlawful arrest and malicious

prosecution claims.

III.

Nor do I agree with the majority that Kristi Gravelet-

Blondin’s state-law outrage claim should survive summary

judgment. To succeed on this claim, the alleged misconduct

must be “so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and

to be regarded as atrocious, and utterly intolerable in a

civilized community.” Kloepfel v. Bokor, 66 P.3d 630, 632

(Wash. 2003) (citation omitted). Factors that courts may

consider in conducting this analysis include “the position

occupied by the defendant, whether the plaintiff was

peculiarly susceptible to emotional distress, the defendant’s

knowledge of such fact and whether defendant’s conduct may

have been privileged under the circumstances.” Grimsby v.

40 GRAVELET-BLONDIN V. SHELTON

Samson, 530 P.2d 291, 295 (Wash. 1975); see also Spurrell

v. Bloch, 701 P.2d 509, 535 (Wash. Ct. App. 1985).

Taking its cue from the district court, the majority hones

in on whether Ms. Blondin was particularly susceptible to

emotional distress, and if the defendants knew this fact. Slip

op. at 26–28. But even accepting that, as Blondin’s wife, Ms.

Blondin was “particularly susceptible” to distress upon seeing

him tased (and that Sgt. Shelton knew as much), this is still

not enough to create a triable issue of fact as to whether the

conduct was sufficiently extreme. It is undisputed that Sgt.

Shelton tased Blondin for only two seconds following

Blondin’s refusal to comply with repeated orders. It is also

undisputed that immediately after Blondin was tased, officers

summoned paramedics to remove the barbs and check his

vital signs.5

Under the totality of circumstances I believe that no

reasonable juror could conclude that Sgt. Shelton’s conduct

was atrocious, extreme, or beyond all possible bounds of

decency. Grimbsy, 530 P.2d at 295. Accordingly, I would

affirm the district court’s grant of summary judgment on Ms.

Blondin’s common law outrage claim.

IV.

In sum, I would hold that the officers are entitled to

qualified immunity, and that the Blondins’ unlawful arrest

and common law claims fail as a matter of law. I therefore

respectfully dissent.

5

Blondin declined further medical attention.