Derrick Sanderlin v. Jason Dwyer

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DERRICK SANDERLIN; CAYLA No. 23-15487

SANDERLIN; BREANNA

CONTRERAS; PIETRO DI D.C. No. 5:20-cv-

DONATO; ADIRA SHARKEY; 04824-BLF

JOSEPH STUKES; VERA

CLANTON,

OPINION

Plaintiffs-Appellees,

v.

JASON DWYER; LEE TASSIO;

JONATHAN MARSHALL;

MICHAEL PANIGHETTI; JUAN

AVILA,

Defendants-Appellants,

and

CITY OF SAN JOSE; EDGARDO

GARCIA; JARED YUEN;

JONATHAN BYERS; RONNIE A.

LOPEZ; BRIAN MATCHETT;

AIDAN GUY; STEVEN GAONA;

TYLER MORAN,

2 SANDERLIN V. DWYER

Defendants,

v.

NAACP OF SAN JOSE/ SILICON

VALLEY,

Third-party-plaintiff.

Appeal from the United States District Court

for the Northern District of California

Beth Labson Freeman, District Judge, Presiding

Argued and Submitted May 7, 2024

San Francisco, California

Filed September 4, 2024

Before: Richard A. Paez, Jacqueline H. Nguyen, and

Michelle T. Friedland, Circuit Judges.

Opinion by Judge Nguyen

SANDERLIN V. DWYER 3

SUMMARY *

Qualified Immunity / Retaliatory and Excessive Force

The panel affirmed the district court’s denial of qualified

immunity to San Jose Police Officer Michael Panighetti in

Derrick Sanderlin’s 42 U.S.C. § 1983 action alleging that

Panighetti used retaliatory and excessive force against him

in violation of his First and Fourth Amendment rights.

While attending a protest, Sanderlin was struck in the

groin by a 40mm foam baton round, fired directly at him by

Panighetti.

The panel held, that viewing the evidence in the light

most favorable to Sanderlin, genuine disputes of material

fact existed as to whether Panighetti’s use of force was

retaliatory in violation of the First Amendment because

(1) resolving the disputed facts in Sanderlin’s favor, he was

engaged in the protected activity of peacefully protesting,

and (2) it is clearly established that police officers may not

use their authority to retaliate against individuals for

protected speech.

The panel held, that viewing the evidence in the light

most favorable to Sanderlin, genuine disputes of material

fact existed as to whether Panighetti’s use of force was

excessive in violation of the Fourth Amendment because

(1) Panighetti’s act of firing a projectile at Sanderlin

constituted a seizure under the Fourth Amendment, (2) a

triable issue of fact existed as to the reasonableness of the

*

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

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

4 SANDERLIN V. DWYER

force used by Panighetti, and (3) although subsequent legal

developments narrowed the scope of seizures under the

Fourth Amendment, the right violated was clearly

established at the time of the incident.

COUNSEL

Sarah E. Marinho (argued), Marinho Law Firm, San Jose,

California; Dmitry Stadlin, Stadlin Law Firm PC, San Jose,

California; for Plaintiffs-Appellees.

Ardell Johnson (argued); Matthew Pritchard, Sr., Deputy

City Attorney; Nora Frimann, City Attorney; Office of the

City Attorney, San Jose, California; for Defendants-

Appellants.

OPINION

NGUYEN, Circuit Judge:

In the summer of 2020, millions took to the streets to

protest the death of George Floyd at the hands of a

Minneapolis police officer. Plaintiff Derrick Sanderlin

attended one such protest in San Jose, California. While in

attendance, Sanderlin was struck in the groin by a 40mm

foam baton round, fired directly at him by Officer Michael

Panighetti.

Sanderlin sued, alleging that Panighetti’s use of force

was retaliatory in violation of the First Amendment and was

excessive in violation of the Fourth Amendment. Panighetti

moved for summary judgment, arguing that he was entitled

SANDERLIN V. DWYER 5

to qualified immunity. The district court denied Panighetti’s

motion, concluding that genuine disputes of material fact

existed as to whether Panighetti violated Sanderlin’s clearly

established rights.

We agree. Viewing the evidence in the light most

favorable to Sanderlin, as we must at this stage of the

proceedings, genuine disputes of material fact exist as to

whether Sanderlin’s First and Fourth Amendment clearly

established rights were violated. We therefore affirm the

district court’s denial of qualified immunity.

Background

A. Factual History

On May 29, 2020, at around 2:00 p.m., a protest started

at San Jose City Hall. Police officers patrolling the scene

initially reported that the crowd remained peaceful for the

first hour or so. The crowd eventually marched from City

Hall down Santa Clara Street onto Highway 101,

temporarily blocking both northbound and southbound

lanes. Additional officers were dispatched to assist in the

response, as some members of the crowd began engaging in

violent behavior, including smashing vehicles with rocks

and throwing objects at officers from an overpass.

When Officer Panighetti arrived on the scene at around

3:30 p.m., he was equipped with a 40mm launcher, capable

of firing foam baton rounds. According to then-existing San

Jose Police Department (SJPD) policy, SJPD officers had

blanket authority to use 40mm foam baton rounds

throughout the protests as defensive weapons against

“specific individuals who posed a threat of serious injury to

the officers or others.”

6 SANDERLIN V. DWYER

At about 4:30 p.m., officers issued dispersal orders to the

crowd. The crowd then began to make its way back toward

City Hall, westbound on Santa Clara Street. Panighetti was

with a group of police officers who followed the protestors

in a patrol vehicle back in the direction of City Hall. When

Panighetti reached the intersection of Santa Clara Street and

8th Street, he was instructed to get out of his vehicle and

stand behind the skirmish line that began to form. According

to Panighetti, protestors began throwing various objects at

him and other police officers.

Panighetti and other officers continued moving in the

direction of City Hall. Panighetti testified in his deposition

that as he approached the intersection of Santa Clara Street

and 5th Street, he had been monitoring an individual wearing

a San Francisco 49ers jersey who had been throwing objects

at police officers and hiding behind corners. When they

reached the intersection, Panighetti observed that individual

in the 49ers jersey, along with another person, hiding behind

the corner of a building. Panighetti claimed that he was able

to continue to visually monitor the two subjects because the

building was glass all around the first floor. Panighetti then

explained that he saw those two subjects holding gallon paint

cans, and he believed they were poised to throw the paint

cans at police officers. At one point, the subjects pushed a

dumpster into the intersection and attempted to hide behind

it.

At that point, a man later identified as Sanderlin moved

into the sidewalk while carrying a sign over his head.

Panighetti claimed that Sanderlin purposefully placed

himself in front of officers to block the two subjects holding

paint cans and hiding behind the dumpster. In video footage

captured by Panighetti’s body-worn camera, Sanderlin is

seen standing on the sidewalk holding a sign, and a dumpster

SANDERLIN V. DWYER 7

is behind him. The video does not clearly show the two

subjects allegedly holding paint cans that Panighetti

describes, though there is clearly a chaotic scene unfolding

around this encounter. In the video, Panighetti can be heard

yelling to Sanderlin, “I’m going to hit you, dude. You better

move!” Sanderlin fails to immediately comply, continuing

to stand in the sidewalk holding his sign over his head. After

only a few seconds, Panighetti fires a 40mm foam baton at

Sanderlin, striking him in the groin area. Sanderlin recoils

from the impact and appears to take a few steps, shifting his

weight between his feet in pain. He then limps out of the

middle of the sidewalk, at which point he is no longer visible

in the video footage.

According to Sanderlin, he and his wife, co-plaintiff

Cayla Sanderlin, attended the protest on May 29 together.

His wife indicated that she wanted to leave, but Sanderlin

felt compelled to stay to show solidarity with his fellow

demonstrators. At around 6:20 p.m., Sanderlin was standing

near the intersection of East Santa Clara Street and 5th

Street. In his declaration, Sanderlin stated that he was not

posing a threat nor was he invading the personal space of any

officers or attempting to shield any subjects from the police.

Sanderlin stated he was merely standing with his hands over

his head, imploring the officers to stop shooting other

protestors. Sanderlin further stated he did not hear any

warnings or instructions to move at the time he was shot by

Panighetti. Sanderlin asserted that after Panighetti shot him,

he fell to the ground immobile, and no officers rendered aid.

His wife found him lying alone near the intersection of East

Santa Clara Street and 5th Street, and she helped him stand

and walk away. As a result of being shot in the groin,

Sanderlin suffered severe injuries that required emergency

surgery.

8 SANDERLIN V. DWYER

B. Procedural History

Sanderlin filed suit against Panighetti under 42 U.S.C.

§ 1983, alleging that Panighetti had used excessive force

against him because he was protesting the police and that

Panighetti’s acts therefore violated his rights under the First

and Fourth Amendments of the United States Constitution.1

Panighetti moved for summary judgment on both claims.

Regarding the First Amendment claim, Panighetti argued

that his motivation for shooting Sanderlin was not

retaliatory. Regarding the Fourth Amendment claim,

Panighetti argued (1) that Sanderlin was not seized within

the meaning of the Fourth Amendment, (2) that if there was

a seizure, his use of force was not excessive, and (3) that he

is entitled to qualified immunity because he did not violate

clearly established law.

The district court rejected each of these arguments and

denied Panighetti qualified immunity. As to Sanderlin’s

First Amendment claim, the district court determined that a

jury could credit circumstantial evidence to find that

Panighetti was motivated by retaliatory animus. As to

whether Sanderlin was seized, the district court concluded

that although Panighetti’s stated subjective intent was to

disperse Sanderlin, rather than restrain him, that fact was not

determinative of whether there was a seizure. The district

court reasoned that because “Panighetti intentionally aimed

and fired at Derrick Sanderlin,” that was sufficient to create

a dispute of fact as to whether there was a Fourth

Amendment seizure. The court then went on to conclude

1

We resolve the claims brought by Sanderlin against Defendant Jason

Dwyer in a concurrently filed memorandum disposition. Sanderlin

brought additional claims against other defendants, none of which are at

issue in this appeal.

SANDERLIN V. DWYER 9

that whether Panighetti’s use of force was excessive would

“depend largely on how the jury interprets the video footage,

and whether the jury credits Panighetti’s testimony that

Sanderlin was blocking the police from targeting the two

individuals behind the dumpster.” And finally, the district

court concluded that “it was clearly established that an

officer could not shoot a projectile at an individual who was

peacefully protesting,” and thus, under Sanderlin’s version

of events, “Panighetti had notice that his shooting of

Sanderlin would be unconstitutional.”

Panighetti timely appealed.

Jurisdiction and Standard of Review

We have jurisdiction over this interlocutory appeal of the

district court’s summary judgment order denying qualified

immunity. 28 U.S.C. § 1291; Mitchell v. Forsyth, 472 U.S.

511, 530 (1985). But, at this stage, our jurisdiction is

“limited to resolving a defendant’s ‘purely legal . . .

contention that [his or her] conduct did not violate the

[Constitution] and, in any event, did not violate clearly

established law.’” Est. of Anderson v. Marsh, 985 F.3d 726,

731 (9th Cir. 2021) (alterations in original) (quoting Foster

v. City of Indio, 908 F.3d 1204, 1210 (9th Cir. 2018)). We

lack jurisdiction over any argument “that the evidence is

insufficient to raise a genuine issue of material fact.” Id. In

reviewing the denial of summary judgment on qualified

immunity grounds, we “decide de novo whether the facts,

‘considered in the light most favorable to the plaintiff,’ show

that qualified immunity is warranted.” Hopson v. Alexander,

71 F.4th 692, 697 (9th Cir. 2023) (quoting Ames v. King

County, 846 F.3d 340, 347 (9th Cir. 2017)).

10 SANDERLIN V. DWYER

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.” Nelson v. City of Davis, 685 F.3d 867, 875 (9th

Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). To survive summary judgment, Sanderlin must

succeed on both prongs. Id.

We consider Sanderlin’s First and Fourth Amendment

claims in turn.

I.

To establish a claim for retaliatory violation of the First

Amendment, Sanderlin must show (1) that he was engaged

in a constitutionally protected activity; (2) that Panighetti’s

actions would “chill a person of ordinary firmness from

continuing to engage in the protected activity;” and (3) that

“the protected activity was a substantial or motivating factor

in [Panighetti’s] conduct.” Index Newspapers LLC v. U.S.

Marshals Serv., 977 F.3d 817, 827 (9th Cir. 2020).

Panighetti argues that there are no genuine disputes of

material fact as to the first and third elements. As to the first,

Panighetti argues that Sanderlin was blocking Panighetti and

other officers from taking action against the suspects

standing behind the dumpster. Such obstruction of officers

in their official duties, Panighetti argues, is not a

constitutionally protected activity. But that argument

assumes the truth of Panighetti’s version of the facts, and at

this stage of the proceedings, we must construe the evidence

in the light most favorable to Sanderlin. See Hopson, 71

F.4th at 697. Whether or not Sanderlin was in fact

SANDERLIN V. DWYER 11

obstructing officers, rather than engaging in the protected

activity of peacefully protesting, will turn on whether a

factfinder eventually credits Panighetti’s description of the

circumstances surrounding the shooting. According to

Sanderlin, he was merely standing peacefully on the

sidewalk holding the sign. Resolving the disputed facts in

Sanderlin’s favor, he was engaged in protected First

Amendment activity.

That brings us to the third element, which also turns on

the same dispute of fact. If a factfinder concludes that there

was no legitimate justification for Panighetti’s actions, they

could reasonably infer that those actions were motivated by

retaliatory animus. See Index Newspapers LLC, 977 F.3d at

827 (recognizing that whether officer is motivated by

discriminatory animus “involves questions of fact that

normally should be left for trial”); Duran v. City of Douglas,

904 F.2d 1372, 1377 (9th Cir. 1990) (denying summary

judgment on First Amendment claim where officer claimed

he lacked retaliatory motive but reasonable juror could find

traffic stop was retaliatory in absence of “legitimate,

articulate” reason for traffic stop).

For these reasons, we agree that, when all factual

disputes are resolved and all reasonable inferences are drawn

in Sanderlin’s favor, Panighetti’s acts violated clearly

established law. It is clearly established that police officers

may not use their authority to retaliate against individuals for

protected speech. See Ford v. City of Yakima, 706 F.3d

1188, 1195 (9th Cir. 2013), abrogated on other grounds by

Nieves v. Bartlett, 587 U.S. 391 (2019). If a factfinder

determines that Panighetti’s actions were retaliatory, then

Panighetti’s actions would violate clearly established law.

12 SANDERLIN V. DWYER

II.

We now turn to Sanderlin’s Fourth Amendment claim of

excessive force.

A.

We must first decide whether Sanderlin was seized

within the meaning of the Fourth Amendment. See Seidner

v. de Vries, 39 F.4th 591, 596 (9th Cir. 2022) (“Before

addressing [an officer’s] use of force, we must decide

whether [the plaintiff] was seized, thereby implicating the

Fourth Amendment.”).

A seizure “can take the form of ‘physical force’ or a

‘show of authority’ that ‘in some way restrain[s] the liberty’

of the person.” Torres v. Madrid, 592 U.S. 306, 311 (2021)

(quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). A

Fourth Amendment seizure occurs “when there is a

governmental termination of freedom of movement through

means intentionally applied.” Brower v. Cnty. of Inyo, 489

U.S. 593, 597 (1989). The Fourth Amendment is intended

to “prevent arbitrary and oppressive interference by

enforcement officials with the privacy and personal security

of individuals.” United States v. Martinez-Fuerte, 428 U.S.

543, 554 (1976). Thus, a seizure occurs any time an “officer

accosts an individual and restrains his freedom to walk

away.” Terry, 392 U.S. at 16. “[A] mere touch can be

enough for a seizure,” and “brief seizures are seizures all the

same.” Torres, 592 U.S. at 317–18.

Consistent with these principles, courts have not

hesitated to hold that a seizure occurred when an officer uses

physical force in any way that restricts or otherwise limits

the ability of an individual to move about freely, even if the

restriction is limited in nature or time, and even where the

SANDERLIN V. DWYER 13

force is not applied for the purpose of effectuating an arrest.

See, e.g., Salmon v. Blesser, 802 F.3d 249, 254 (2d Cir.

2015) (holding that a seizure occurred where officer used

“painful force to control [the plaintiff’s] movements”); Hess

v. Garcia, 72 F.4th 753, 763 (7th Cir. 2023) (“Physically

grabbing someone is likely to be a seizure because it is likely

to restrict movement, at least briefly.”); West v. Davis, 767

F.3d 1063, 1070 (11th Cir. 2014) (holding that a seizure

occurred where sheriff physically grabbed plaintiff’s wrist

for brief time); United States v. Delaney, 955 F.3d 1077,

1083 (D.C. Cir. 2020) (recognizing that “officers need not

totally restrict a citizen’s freedom of movement” to

effectuate seizure (quoting United States v. Smith, 794 F.3d

681, 686 (7th Cir. 2015)).

Here, Panighetti intentionally used physical force by

directly firing a foam baton round at Sanderlin. According

to Sanderlin’s declaration, after he was struck with the foam

baton, he fell to the ground unable to move. The video

footage from Panighetti’s body camera provides some

corroboration for this claim, as Sanderlin can be seen

staggering from the impact, unable to stand or walk properly.

In other words, Panighetti intentionally applied physical

force, and as a result, Sanderlin’s “freedom of movement

[was] restrained.” United States v. Mendenhall, 446 U.S.

544, 553 (1980). Viewing the evidence in the light most

favorable to Sanderlin, we conclude that a reasonable

factfinder could determine that he was seized within the

meaning of the Fourth Amendment. See Brendlin v.

California, 551 U.S. 249, 254 (2007) (“A person is seized

. . . when the officer, by means of physical force or show of

authority, terminates or restrains his freedom of movement

through means intentionally applied.” (citations, quotation

marks, and emphasis omitted)). The fact that Panighetti’s

14 SANDERLIN V. DWYER

incapacitation of Sanderlin may have been limited in

duration does not alter this conclusion, because a

“meaningful interference” with an individual’s freedom of

movement, even if brief, constitutes a seizure. United States

v. Enslin, 327 F.3d 788, 795 (9th Cir. 2003) (quoting United

States v. Jacobsen, 466 U.S. 109, 113 n.5 (1984)). Nor is it

relevant that Sanderlin was ultimately able to walk away,

because “the application of physical force to the body of a

person with intent to restrain is a seizure even if the person

does not submit and is not subdued.” Torres, 592 U.S. at

325.

Panighetti argues that he could not have seized Sanderlin

because his actual intent in firing the foam baton was to force

him to leave the area, not to restrain Sanderlin or apprehend

him. Panighetti is correct that under the Supreme Court’s

recent decision in Torres, “[a] seizure requires the use of

force with intent to restrain.” Id. at 317. But Torres is

equally clear that our inquiry centers on “whether the

challenged conduct objectively manifests an intent to

restrain.” Id.; see also Brendlin, 551 U.S. at 260 (“[W]e

have repeatedly rejected attempts to introduce . . .

subjectivity into Fourth Amendment analysis.”); accord

Villanueva v. California, 986 F.3d 1158, 1166 (9th Cir.

2021) (“The intent that counts under the Fourth Amendment

is the intent conveyed, not the officers’ subjective intent.”

(quotation marks omitted)).

Viewing the facts in the light most favorable to

Sanderlin, we conclude that a reasonable factfinder could

find that Panighetti objectively manifested an intent to

restrain Sanderlin and prevent Sanderlin from freely walking

away. Record evidence suggests that the 40mm launcher

that Panighetti used is chiefly designed, intended, and used

for the purpose of incapacitating its target—and there can be

SANDERLIN V. DWYER 15

no reasonable dispute that “incapacitating” an individual by

firing a projectile at them is an act that “meaningful[ly]

interfere[es]” with their freedom of movement. Jacobsen,

466 U.S. at 113 n.5 (citing cases that recognize that

“meaningful interference, however brief, with an

individual’s freedom of movement” constitutes a seizure).

According to SJPD training materials, “Less Lethal Impact

munitions” like the 40mm foam baton Panighetti fired “are

used to: Disorient [and] Incapacitate . . . Injury should be

expected.” The training materials further reveal that

projectiles that are fired “to ‘Center Mass’ provide for the

highest probability of causing immediate incapacitation, but

also have the potential to cause serious injury or death.”

Panighetti himself explained that he was trained to use the

40mm launcher “to incapacitate a suspect” posing a safety

risk. The record also shows that the groin, where Sanderlin

was shot, is considered an area of particularly high risk of

injury, and the training materials specifically indicate that

“[t]he groin area should not be intentionally targeted.”

The method of force Panighetti used is, by its nature,

intended to incapacitate its target, thereby making it difficult

to freely walk away. A reasonable trier of fact viewing this

evidence could conclude that by firing a 40mm projectile at

Sanderlin’s groin, Panighetti objectively manifested an

intent to restrain Sanderlin. Whether Panighetti may have

subjectively intended to repel Sanderlin rather than restrain

him is irrelevant to the analysis.

We therefore conclude that Panighetti’s act of firing a

projectile at Sanderlin constituted a seizure under the Fourth

Amendment.

16 SANDERLIN V. DWYER

B.

Having determined that Sanderlin was seized within the

meaning of the Fourth Amendment, we must now consider

whether the seizure was unreasonable. See Graham v.

Connor, 490 U.S. 386, 395 (1989). In assessing whether a

seizure is unreasonable, we balance “the nature and quality

of the intrusion on the individual’s Fourth Amendment

interests against the countervailing governmental interests at

stake.” Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1,

8 (1985)). We note at the outset that “[b]ecause questions of

reasonableness are not well-suited to precise legal

determination, the propriety of a particular use of force is

generally an issue for the jury.” Chew v. Gates, 27 F.3d

1432, 1440 (9th Cir. 1994). “When all disputes of fact are

resolved in [Sanderlin’s] favor, as they must be for purposes

of summary judgment, it is apparent that application of the

Graham factors would not have required a rational jury to

decide that” Panighetti’s use of force was reasonable. Id. at

1441.

With respect to Sanderlin’s interests, we consider “the

type and amount of force inflicted” against him. Young v.

Cnty. of Los Angeles, 655 F.3d 1156, 1161 (9th Cir. 2011)

(quoting Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir.

2001)). The district court noted that a projectile weapon like

the 40mm launcher is a particularly strong method of force.

Panighetti does not, and could not, reasonably dispute this.

The SJPD manual describes the 40mm launcher as capable

of causing serious injury or death. Moreover, there is no

dispute that the injuries Sanderlin sustained were severe.

Accordingly, we consider Panighetti’s use of force to be “a

sufficiently serious intrusion upon liberty that it must be

justified by a commensurately serious state interest.” Id. at

1162–63.

SANDERLIN V. DWYER 17

In evaluating the government’s interest in the use of

force, we “take[] into account: (1) the severity of the crime

at issue, (2) whether the suspect poses an immediate threat

to the safety of the officers or others, and (3) whether he is

actively resisting arrest or attempting to evade arrest by

flight.” Chew, 27 F.3d at 1440 (citing Graham, 490 U.S. at

396). The district court correctly noted that Sanderlin was

not committing any crime at the moment Panighetti shot

him. Although a chaotic scene was unfolding around him,

Sanderlin was peacefully holding a sign with his hands up,

was not personally threatening officer safety, and was not

evading arrest.

On the other hand, officers obviously have a legitimate

“safety interest in controlling” a mass of people. Jackson v.

City of Bremerton, 268 F.3d 646, 652–53 (9th Cir. 2001).

We acknowledge that the reasonableness inquiry must

account for the reality that officers in Panighetti’s situation

are “often forced to make split-second judgments” in

“rapidly evolving” circumstances. Graham, 490 U.S. at 397.

And where police officers are confronted with a crowd of

protestors who refuse to obey the officers’ commands to

disperse, the application of minimal force may be justified

to maintain order and prevent organized lawlessness. See

Felarca v. Birgeneau, 891 F.3d 809, 818 (9th Cir. 2018).

Panighetti argues that Sanderlin posed a significant and

immediate risk to officer safety because he interfered with

the officers’ ability to incapacitate the two dangerous

suspects hiding behind the dumpster, who Panighetti claims

were armed with gallon paint cans. Once again, however,

Panighetti relies on his version of the disputed facts.

Whether or not Sanderlin was in fact obstructing officers

will turn on whether a factfinder credits Panighetti’s version

of the events.

18 SANDERLIN V. DWYER

Moreover, the cases Panighetti cites are factually

distinguishable, and none compel the conclusion that the

force Panighetti used was reasonable as a matter of law. In

Jackson, officers sprayed the plaintiff with a chemical

irritant after the plaintiff ran to interfere with an officer in

the middle of an altercation. 268 F.3d at 650. There, the

threat posed by the plaintiff was direct, while the

corresponding intrusion on her Fourth Amendment rights

was less severe. In Ames, the plaintiff refused to allow police

officers to enter her garage with an aid crew to provide

lifesaving treatment to her son, loaded her son in a car, and

attempted to drive away with him despite the officers’ orders

not to do so. 846 F.3d at 345. There, the plaintiff actively

interfered with her son’s medical treatment and physically

resisted arrest. Id. at 349. And in Felarca, we specifically

noted that the plaintiffs understood the police officers’

dispersal orders, ignored or dismissed them, and directly

interfered with the officers’ attempt to carry out their duties.

891 F.3d at 818. In contrast, Sanderlin claims that he never

heard Panighetti’s commands to move, and that he never

attempted to threaten or invade the officers’ personal space.

Ultimately, on this record, the reasonableness of the

force used by Panighetti thus turns on “how the jury

interprets the video footage, and whether the jury credits

Panighetti’s testimony that Sanderlin was blocking the

police from targeting the two individuals behind the

dumpster.” To the extent that the jury discredits Panighetti’s

account or believes that Panighetti failed to consider other

less intrusive tactics, it could determine that the use of force

was unreasonable. We therefore affirm the district court’s

conclusion that a triable issue existed as to whether

Panighetti violated Sanderlin’s Fourth Amendment rights.

SANDERLIN V. DWYER 19

C.

We now turn to the second prong of qualified

immunity—whether the right violated was “clearly

established.” We ask whether the law was “clearly

established at the time an action occurred.” Harlow, 457

U.S. at 818 (emphasis added). Subsequent legal

developments cannot be used to impute knowledge upon

officers, because the relevant inquiry is what the officer can

“fairly be said to ‘know’” at the time of the alleged violation.

Id.; see also Kisela v. Hughes, 584 U.S. 100, 104 (2018) (per

curiam) (“Because the focus is on whether the officer had

fair notice that her conduct was unlawful, reasonableness is

judged against the backdrop of the law at the time of the

conduct.” (quoting Brosseau v. Haugen, 543 U.S. 194, 198

(2004) (per curiam))).

We must therefore decide whether at the time of the

conduct, under clearly established law, Panighetti’s use of

force was excessive. We confronted similar facts in Nelson

v. City of Davis. There, the police ordered a group of

students at a large disturbance to disperse, and when the

students failed to comply, the police fired pepperball

projectiles at them. Nelson, 685 F.3d at 873–74. We held

that “the firing of a projectile that risked causing serious

harm, in the direction of non-threatening individuals who

had committed at most minor

misdemeanors . . . constitute[d] unreasonable force in

violation of the Fourth Amendment.” Id. at 886. Given the

factual similarities between Nelson and this case, Panighetti

was on notice that his use of force was excessive.

Moreover, in determining that the officers in Nelson

violated clearly established law by firing projectiles and

20 SANDERLIN V. DWYER

pepper spray at non-threatening individuals, we relied on our

prior holding in Deorle. In that case, we 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, is mentally or emotionally disturbed,

has been given no warning of the imminent

use of such a significant degree of force,

poses no risk of flight, and presents no

objectively reasonable threat to the safety of

the officer or other individuals.

Deorle, 272 F.3d at 1285; see also Ciminillo v. Streicher,

434 F.3d 461, 466–69 (6th Cir. 2006) (finding an officer

“was on notice that it is unreasonable to use beanbag

propellants against individuals who pose no immediate risk

to officer safety,” even when the shooting occurred during

the course of a riot). A reasonable trier of fact could

conclude that each of these factors were present here,

rendering Panighetti’s conduct unreasonable under clearly

established law.

A closer question, however, is whether we may rely on

Nelson to hold that it was clearly established that

Panighetti’s acts constitute a seizure under the Fourth

Amendment. If it were appropriate to rely on Nelson, it

would be clearly established. In Nelson, we explained that

“it was clearly established prior to April 2004 . . . that the

intentional application of force which terminates an

individual’s freedom of movement results in a seizure.” 685

F.3d at 884. But Nelson’s holding has been limited by the

Supreme Court’s subsequent decision in Torres, in which the

SANDERLIN V. DWYER 21

Court held that the mere “intentional application” of force is

not, by itself, sufficient to establish a seizure; the force must

be applied with the intent to restrain. We have already

explained that the use of force here was a seizure under the

narrower rule in Torres. But we must determine whether we

can nevertheless rely on Nelson’s broader rule as clearly

establishing, as of May 29, 2020, that intentionally firing a

less lethal projectile to incapacitate a suspect constitutes a

seizure.

We hold that such reliance is proper. The “clearly

established” inquiry that we undertake when evaluating an

officer’s assertion of qualified immunity is bound up with

the precept of notice—notice means prior notice, not notice

after the fact. See Hope v. Pelzer, 536 U.S. 730, 739 (2002)

(“[Q]ualified immunity operates to ensure that before they

are subjected to suit, officers are on notice that their conduct

is unlawful.”). For that reason, a court may not rely on

“subsequent legal developments” favorable to the plaintiff to

clearly establish the law, because the officer cannot “fairly

be said to ‘know’ that the law forbade conduct not previously

identified as unlawful.” Harlow, 457 U.S. at 818; see also

Sandoval v. Cnty. of San Diego, 985 F.3d 657, 685 (9th Cir.

2021) (Collins, J., concurring in the judgment in part and

dissenting in part) (“Changes in the applicable law that occur

subsequent to the [defendant’s] actions are ‘therefore of no

use in the clearly established inquiry.’” (quoting Kisela, 584

U.S. at 107)).

Torres is, in some sense, favorable to Panighetti, because

it narrowed the scope of seizures under the Fourth

Amendment to cover only force used to restrain (even

though, taking the facts in the light most favorable to

Sanderlin, the use of force here meets that standard, as

explained above). But we see no reason to treat subsequent

22 SANDERLIN V. DWYER

legal developments that are favorable to the defendant

officer any differently from subsequent legal developments

favorable to the plaintiff. As one of our sister circuits has

already recognized, “the need for prior notice is a two-way

street.” West v. Murphy, 771 F.3d 209, 214 (4th Cir. 2014).

In West, the Fourth Circuit considered whether a Supreme

Court case narrowing liability for officials that was decided

after the defendant officials’ challenged conduct could be

used to show that the law was not clearly established at the

time of the challenged conduct. Id. Recognizing that “the

inquiry into ‘clearly established law’ is tethered to the need

for notice,” the Fourth Circuit held that subsequent legal

decisions that inure to the benefit of government officials

“do[] not affect whether the law was clearly established

because the favorable judicial decision could not have

informed the officials’ understanding of whether their

actions were lawful.” Id.

We adopt our sister circuit’s reasoning here. Consistent

with well-settled principles underpinning qualified

immunity, neither favorable nor damning subsequent legal

developments can be used to demonstrate what law was or

was not clearly established at the time of an officer’s

challenged conduct. A subsequent legal development could

narrow the scope of a once broader constitutional right or

otherwise work a change into the legal framework for

analyzing a previously clear area of law. But just as we

cannot reasonably expect an officer to anticipate subsequent

legal developments to render his actions unlawful, Harlow,

457 U.S. at 818, we cannot presume that an officer acts with

clairvoyance that precedent clearly defining a constitutional

right may later be disturbed. Of course, in assessing an

officer’s claim of qualified immunity, decisions post-dating

the incident may elucidate whether the officer has committed

SANDERLIN V. DWYER 23

a constitutional violation at all—if there is no violation, then

there is no liability. But if there is a violation, the officer

cannot take advantage of subsequent developments in the

law to argue that the right was not clearly established at the

time he committed the violation. This rule is not only a

faithful application of qualified immunity precedent, but a

practically necessary one as well. If an officer acts with the

sincere belief that his actions are lawful, notwithstanding

clear law to the contrary in effect at the time, it would make

little sense to reward the officer if it turns out that the law

later becomes less clear or changes in some other way. 2

As of May 29, 2020, Nelson clearly established that

Panighetti’s act of shooting Sanderlin constituted a seizure.

Nelson and Deorle together clearly established that

Panighetti’s use of force under the circumstances was

unreasonable. We therefore affirm the district court’s denial

of summary judgment on qualified immunity grounds.

***

We AFFIRM the district court’s order denying qualified

immunity to Panighetti.

2

We add that the Supreme Court’s ruling in Torres would not have

changed the outcome in Nelson. Were we to decide Nelson today, we

would reach the same result, albeit for an analytically different reason.

Although it is insufficient that the act causing the seizure be

“intentional,” Torres still requires us to focus on the officer’s objectively

manifested intent. And in Nelson, the officers’ objectively manifested

an intent to restrain by firing projectile pepperballs into the crowd,

knowing there was a significantly high risk that one such projectile could

strike and incapacitate a member of the group. Thus, even after Torres,

the officers’ acts in Nelson constituted a seizure. That we reach the same

result under a different analytical framework based on intervening legal

developments has no bearing on whether a reasonable officer would be

on notice based on Nelson that his actions would constitute a seizure.