Cole Spencer v. Aaron Pew

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COLE JOSEPH SPENCER, No. 21-15521

Plaintiff-Appellant, D.C. No.

v. 2:20-cv-00385-

DGC-CDB

AARON PEW, #19183, police officer;

JACOB ROZEMA, #15724, police

officer; KEVIN SHALL, #1554,

deputy sheriff; JUSTIN MACKLIN, OPINION

#1742, deputy sheriff; MARICOPA

COUNTY SHERIFF’S OFFICE,

Defendants-Appellees,

and

MESA POLICE DEPARTMENT;

CITY OF MESA,

Defendants.

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted May 15, 2023

Phoenix, Arizona

2 SPENCER V. PEW

Before: Jacqueline H. Nguyen, Daniel P. Collins, and

Kenneth K. Lee, Circuit Judges.

Opinion by Judge Collins

SUMMARY*

Excessive Force

The panel affirmed in part and reversed in part the

district court’s summary judgment in favor of four law

enforcement officers in plaintiff’s 42 U.S.C. § 1983 action

alleging the officers used excessive force during his arrest.

The panel first considered whether Officers Pew,

Rozema, and Macklin violated plaintiff’s clearly established

rights with respect to the force that they used to secure

plaintiff’s hands in two linked sets of handcuffs. As to this

force, the panel affirmed the district court’s grant of

qualified immunity based solely on the second, “clearly

established law” prong of the qualified immunity test. Given

that this was not an obvious case and there was no precedent

that squarely governed, the panel concluded that defendants

were entitled to qualified immunity with respect to their use

of force up to the point that plaintiff was handcuffed.

Plaintiff also alleged that Officer Pew violated his clearly

established Fourth Amendment rights by kneeling on his

upper back and neck and by continuing to do so after he

protested that it was difficult for him to breathe. Viewing 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.

SPENCER V. PEW 3

facts in light most favorable to plaintiff, the panel concluded

that Pew’s conduct violated clearly established law.

Accordingly, in that respect, the panel reversed the district

court’s grant of qualified immunity to Pew.

Finally, the panel considered whether any of the other

officers were also liable for Pew’s excessive force. Under

this circuit’s caselaw, an officer may be culpable for a

constitutional violation committed by another officer if the

former “is an ‘integral participant’ in the unlawful act” of the

latter. Peck v. Montoya, 51 F.4th 877, 889 (9th Cir. 2022).

The panel concluded that plaintiff failed to present sufficient

evidence to create a triable issue of liability as to any other

of the other officers.

The panel remanded for proceedings with respect to

Officer Pew, and otherwise affirmed the district court’s

summary judgment to all defendants.

COUNSEL

Hannah Garland and H.R. Fitzmorris (argued), Certified

Law Students; Jeffrey M. Feldman, Supervising Attorney,

Summit Law Group PLLC, Seattle, Washington; Elizabeth

G. Porter, Faculty Advisor, Ninth Circuit Appellate

Advocacy Clinic; University of Washington School of Law,

Seattle, Washington; for Plaintiff-Appellant.

Alexander J. Lindvall (argued), Assistant City Attorney;

Jason K. Reed, Deputy City Attorney; City of Mesa

Attorney’s Office, Mesa, Arizona; Anna G. Critz (argued),

Joseph J. Branco, Sean M. Moore, and Charles E. Trullinger,

Deputy County Attorneys; Rachel H. Mitchell, Maricopa

County Attorney; Maricopa County Attorney’s Office, Civil

4 SPENCER V. PEW

Services Division, Phoenix, Arizona; for Defendants-

Appellees.

OPINION

COLLINS, Circuit Judge:

In this action under 42 U.S.C. § 1983, Plaintiff Cole

Spencer alleges that Defendants Aaron Pew, Jacob Rozema,

Justin Macklin, and Kevin Shall, who are all law

enforcement officers, used excessive force during his arrest

on March 21, 2018 in Mesa, Arizona. The district court

granted summary judgment to all four Defendants. Spencer

now appeals. We affirm in part and reverse in part.

I

A

Because this appeal arises from a grant of summary

judgment, we view the evidence in the light most favorable

to Spencer and draw all reasonable inferences in his favor.

Scott v. Harris, 550 U.S. 372, 378 (2007). Accordingly,

where Spencer’s sworn statements directly contradict

Defendants’ statements, we disregard the latter and credit the

former. Id. However, to the extent that the uncontested

video evidence from the officers’ body cameras establishes

the timing and occurrence of events, we “view[] the facts in

the light depicted by the videotape.”1 Id. at 380–81. With

those principles in mind, we take the following facts as true

for purposes of this appeal.

1

Although Spencer contended below that portions of the video and audio

are missing from these tapes, he did not contend that the remaining audio

and video are inaccurate or unreliable.

SPENCER V. PEW 5

On March 21, 2018, Mesa Police Department (“MPD”)

Officers Aaron Pew and Jacob Rozema were driving in an

unmarked police vehicle on a street in Mesa, Arizona when

another vehicle exiting a driveway pulled out right in front

of them. Officer Pew, who was driving the police vehicle,

had to “slam on his brakes” in order to avoid colliding with

the other vehicle. The officers pulled over the other vehicle

for having made an “unsafe and illegal traffic maneuver.”

Jamie Kern was driving the other vehicle, and Plaintiff Cole

Spencer was in the front passenger seat. Spencer appeared

visibly nervous as he spoke with the officers, and when

asked to identify himself, he falsely stated that his name was

“Kenneth Cory.” Officer Rozema conducted an immediate

records check, which indicated that Spencer did not match

the DMV photograph for “Kenneth Cory.” At that point,

Rozema asked Spencer to step out of the vehicle and to “put

his hands behind his back.” Rozema told Spencer that he

was under arrest, although the parties dispute whether

Rozema also informed Spencer that the arrest was for “false

reporting.”

As Spencer stepped out of the vehicle, Rozema grabbed

and twisted Spencer’s wrist.2 Spencer then “pushed Rozema

with his left shoulder,” hitting him in the chest. While

Rozema continued to hold Spencer’s wrist, one of the

officers punched Spencer in the face, knocking Spencer to

the ground. It was undisputed in the district court that, from

this point forward, Spencer was not successfully handcuffed

until after “approximately three-and-a-half minutes of

wrestling with [Spencer]” by the officers.

2

There is no video or audio evidence in the record concerning this initial

portion of the encounter with Spencer, which involved only Officers Pew

and Rozema.

6 SPENCER V. PEW

Over the course of the ensuing struggle, Pew deployed a

taser against Spencer at least four times, including the

specific taser uses that we will discuss momentarily. On the

first occasion, the taser was deployed in “probe” mode—

meaning that “the taser shot two small, electrically charged

probes onto Mr. Spencer”—but Spencer was able to remove

the probes from his neck. For the remaining three

deployments, the taser was in “drive-stun” mode, meaning

that Pew “activated the taser’s electrical contact points and

held the device to Mr. Spencer’s body.” During this time,

Spencer was also repeatedly punched and kicked in the face

by the officers. Spencer acknowledges that the officers

instructed him to give up his hands and that he did not do so,

but he claimed that he told the officers that his hands were

“locked up” from the effects of the taser. Spencer denies

“throw[ing] a punch, a kick or any type of strike towards any

officer” at any point during this struggle with the officers.

At some point after the struggle began, Deputy Kevin

Shall from the Maricopa County Sheriff’s Office (“MCSO”)

arrived. Unlike the MPD officers, the various MCSO

deputies who arrived had body cameras that captured much

of the ensuing events, and we therefore rely primarily on that

video and audio evidence in recounting what happened from

that point forward. Scott, 550 U.S. at 380–81. At the time

Shall arrived, Pew, Rozema, and Spencer were on a patch of

dirt separating the main road from a dead-end parallel

frontage road. Pew and Rozema were kneeling over Spencer

who was lying on the ground, and they were attempting to

handcuff him. Shall stayed with Kern, who was still seated

in his vehicle nearby, and Shall at this point did not attempt

to assist the officers in subduing Spencer.

As Pew and Rozema struggled with Spencer, one of the

officers yelled at him, “Put your hands behind your back!

SPENCER V. PEW 7

Hands behind your back!” Spencer can be heard saying

something about his “hands” in response. This was followed

by the sound of a taser, and Spencer then screamed, “I have

a pacemaker!” At this point in the struggle, Spencer had

shifted to being on his knees, with his head bent down

towards his knees, and Officers Pew and Rozema were

above Spencer, still attempting to handcuff him. As the

officers continued to struggle with Spencer, one of them

shouted, “Why are you resisting? Put your hands behind

your back!”

Just at this point, Deputy Macklin arrived. As Macklin

approached, Spencer was on his back, and one of the officers

punched Spencer in the stomach. Spencer then turned to his

side. Officer Pew pressed Spencer’s face into the dirt as one

of them stated, “Relax your arm, my man.” Deputy Macklin

began to assist Officers Pew and Rozema in subduing

Spencer, and the officers managed to turn him onto his

stomach. While pinning Spencer’s head to the ground,

Officer Pew repeatedly struck Spencer in the face with his

knee.3 Pew then grabbed Spencer’s head and slammed it

into the ground twice. With Macklin lying on top of Spencer

to pin him down, one of the officers instructed another to

“grab his left arm.” Around this time, a third MCSO officer,

Sergeant Clark, arrived and approached the officers and

Spencer, but he did not intervene. As the officers tried to

3

According to his post-incident report, Officer Pew wrote that he

(1) “delivered 3–4 knee strikes to [Spencer’s] face with negative results,”

(2) “shoved [Spencer’s] face into the ground 3–4 times,” and (3) “placed

[Spencer’s] head between my knees with his head face down, put [m]y

thumbs on the back of his neck . . . where I believed his carotid artery

was located and squeezed . . . hoping [Spencer] would go unconscious,

so we could control him.”

8 SPENCER V. PEW

handcuff Spencer, one of them again told him, “Put your

hand behind your back.”

Pew then placed Spencer’s head between his knees, and,

while swearing, picked up Spencer’s head and slammed it

into the ground several times. Pew tasered Spencer in the

neck for approximately 12 seconds, before then beginning to

apply pressure to Spencer’s carotid artery using what he

called in his police report the “carotid control technique.”

See supra note 3. While he was doing so, an officer again

instructed Spencer, “Put your hand behind your back!”

Simultaneously, another officer had handcuffed Spencer’s

left hand and was attempting to handcuff his other hand. An

officer asked, “where’s the other hand?” The officers were

unable to bring Spencer’s hands close enough to secure him

in a single set of handcuffs, and so they chained two sets of

handcuffs together in order to connect Spencer’s left and

right hands. Shortly thereafter, an officer said, “Clasp it,

clasp it, clasp it, there you go.” At that point, Spencer’s right

arm was also handcuffed. Around this point, Pew ceased

applying pressure to Spencer’s neck.

Once Spencer was handcuffed, Deputy Macklin, who

had been laying on top of Spencer, picked himself up to his

knees. Spencer was face down, and given the slack in his

double-handcuffs, he was able to move his hands toward his

side. One of the officers said, “Stop! We’re going to f**k

you up unless you put your hands behind your back.”

Another officer said, “Hey, next time don’t lie to me about

your name.” Pew got up and placed a knee on Spencer’s

upper back, as another officer asked, “You gonna tell me

your name?” As Spencer lay on the ground with Pew’s knee

on his upper back, Pew said, “Stop f**king kicking me.”

Spencer squirmed on the ground, saying “please stop!” and

“please help me!” Pew continued to place his knee on

SPENCER V. PEW 9

Spencer’s upper back, as Spencer said, “I can’t breathe. I

cannot breathe.” An officer responded by telling him “Ok,

well relax!” while another said, “If you’re screaming and

fighting, man, you can breathe. You need to calm down.”

The camera revealed that Spencer’s face was covered in

blood.

Spencer attempted to turn himself so that he would not

be on his stomach, but Pew flipped him back over and held

him down with his knee. Spencer continued to complain that

he could not breathe, and the officers allowed him to turn

onto his right side. Pew stood up a few seconds later. The

officers then held him down by pressing on his left arm while

Macklin continued to kneel and straddle Spencer’s legs.

Shall then took Macklin’s place. Spencer asked Shall to get

off his legs, and he also asked to be able to move back to

lying on his stomach, but the officers said no. About 30

seconds later, however, they did allow him to move back

onto his stomach. For the next several minutes, one or more

officers held Spencer in place while Shall remained

straddled over his legs. At one point, Spencer said, “Please

untighten it,” and an officer responded, “Hold on, Fire’s here

and they’re going to check you out.” Subsequently, an

officer said, “Hey, Fire’s gonna come over here and look at

you, you’re not gonna act stupid are you?” Spencer was then

asked his name, and he responded that it was “Cole

Spencer.” Emergency medical personnel then arrived to

attend to Spencer.

B

Six months after his arrest, Spencer pleaded guilty to

aggravated assault for pushing Officer Rozema as well as to

additional unrelated charges. At the change of plea hearing,

Spencer’s counsel stated that the factual basis for the plea

10 SPENCER V. PEW

was that Spencer “pushed the officer and made a

movement.” The prosecutor then pointed out that an element

of the offense was that Spencer had “intentionally, knowing,

or recklessly caus[ed] physical injury.” When the court

asked what was the factual basis for that element, the

prosecutor stated that the officer “has injuries to his hip and

also multiple abrasions and cuts.” The court then asked

whether that additional factual basis was disputed, and

Spencer’s counsel responded, “No dispute.”

While incarcerated, Spencer filed a pro se complaint

pursuant to 42 U.S.C. § 1983 against Officers Pew and

Rozema, Deputies Shall and Macklin, the City of Mesa, the

Mesa Police Department, the Maricopa County Sheriff’s

Office, and the County of Maricopa. The operative

complaint alleged that the officers, in arresting Spencer, had

used excessive force in violation of the Fourth Amendment.

Spencer sought compensatory and punitive damages.

After screening the complaint in accordance with 28

U.S.C. § 1915A, the district court dismissed without

prejudice the claims against the City, County, and their

respective law enforcement agencies. The court, however,

ordered Pew, Rozema, Shall, and Macklin to respond to the

claim for excessive force.4 Nearly a year later, the district

court granted summary judgment to all four officers.

The district court concluded that Officers Pew and

Rozema were shielded by qualified immunity because no

clearly established law prohibited the degree of force they

used in arresting Spencer. The court concluded that “it is not

4

The court noted that the pro se complaint could be construed as also

asserting a malicious prosecution claim against Shall and Macklin, but

the court dismissed that claim without prejudice. That dismissal is not

challenged on appeal.

SPENCER V. PEW 11

clearly established that officers cannot use significant force

when an arrestee actively resists arrest, shows unusual

strength, and refuses to submit to handcuffing despite

multiple orders to do so.”

As to Deputy Macklin, who “arrived after Plaintiff was

on the ground and Defendants Pew and Rozema were trying

to gain control of him,” the district court also granted

summary judgment based on qualified immunity. Although

“Macklin did not know why Plaintiff was being arrested,”

the district court stated that he could reasonably “conclude

that Plaintiff’s crime was severe given his level of

resistance.” Beyond that one difference, the court held that

the same analysis “applied to the conduct of Pew and

Rozema applies equally to Macklin.”

The district court noted that Deputy Shall “did not use

any force in the interaction with Plaintiff” inasmuch as he

was merely “standing near the altercation” with his attention

“focused on the driver of the vehicle.” The court further

concluded that there was “no evidence that Defendant Shall

had sufficient information from which he could conclude

that he should intervene in an excessive use of force.” The

court therefore granted summary judgment to Shall on the

merits of the Fourth Amendment claim, rather than based on

qualified immunity.

Spencer timely appealed the resulting judgment, and we

have jurisdiction under 28 U.S.C. § 1291. We review de

novo the district court’s grant of summary judgment to

Defendants. S.B. v. County of San Diego, 864 F.3d 1010,

1013 (9th Cir. 2017).

12 SPENCER V. PEW

II

We first address the district court’s grant of summary

judgment to Pew, Rozema, and Macklin based on qualified

immunity.

“The doctrine of qualified immunity 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.’” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (citation omitted). To defeat the defense of qualified

immunity, the plaintiff must satisfy a two-pronged burden:

(1) the plaintiff must allege or show (depending upon the

stage of the litigation) sufficient facts to “make out a

violation of a constitutional right”; and (2) the plaintiff must

demonstrate that “the right at issue was ‘clearly established’

at the time of defendant’s alleged misconduct.” Id. at 232

(citation omitted). The courts are not required to consider

these two prongs in any particular order, and judges therefore

have discretion to uphold a claim of qualified immunity

based solely on the ground that, even if there was a violation

of the Constitution, the plaintiff has not shown that the

claimed right was “clearly established.” Id. at 242–43. As

noted earlier, that was the course the district court took in

concluding that Pew, Rozema, and Macklin were entitled to

qualified immunity.

A

We consider first whether Pew, Rozema, and Macklin

violated Spencer’s clearly established rights with respect to

the force that they used to secure Spencer’s hands in the two

linked sets of handcuffs. As to this force, we affirm the

district court’s grant of qualified immunity based solely on

SPENCER V. PEW 13

the second, “clearly established law” prong of the qualified

immunity test.

1

“Any claim that an officer used excessive force ‘in the

course of an arrest, investigatory stop, or other “seizure” of

a free citizen’ is governed by the Fourth Amendment’s

standard of objective reasonableness.” Demarest v. City of

Vallejo, 44 F.4th 1209, 1225 (9th Cir. 2022) (quoting

Graham v. Connor, 490 U.S. 386, 395–97 (1989)).

“[W]hether an officer has used excessive force ‘requires

careful attention to the facts and circumstances of each

particular case, 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.’” Kisela v.

Hughes, 584 U.S. 100, 103 (2018) (quoting Graham, 490

U.S. at 396).

Although these general standards have long been

established, that does not mean that any violation of them

can therefore be said to violate “clearly established” law.

Rather, the qualified-immunity inquiry “must be undertaken

in light of the specific context of the case, not as a broad

general proposition.” Rivas-Villegas v. Cortesluna, 595 U.S.

1, 5 (2021) (citation omitted). Indeed, the Supreme Court

has “repeatedly told courts—and the Ninth Circuit in

particular—not to define clearly established law at a high

level of generality.” Kisela, 584 U.S. at 104 (citation

omitted). Accordingly, for a right to be “clearly established,”

the “right’s contours” must have been “sufficiently definite

that any reasonable official in the defendant’s shoes would

have understood that he was violating it.” Plumhoff v.

Rickard, 572 U.S. 765, 778–79 (2014) (emphasis added).

14 SPENCER V. PEW

“Specificity is especially important in the Fourth

Amendment context, where it is sometimes difficult for an

officer to determine how the relevant legal doctrine, here

excessive force, will apply to the factual situation the officer

confronts.” Rivas-Villegas, 595 U.S. at 6 (simplified).

Because “[u]se of excessive force is an area of the law ‘in

which the result depends very much on the facts of each

case,’ . . . police officers are entitled to qualified immunity

unless existing precedent ‘squarely governs’ the specific

facts at issue.” Kisela, 584 U.S. at 104 (emphasis added)

(citation omitted).

In light of these principles, the Supreme Court has held

that, except for an “obvious case” in which Graham’s

general standards are alone sufficient to “‘clearly establish’

the answer,” the plaintiff “must identify a case that put [the

officer] on notice that his specific conduct was unlawful.”

Rivas-Villegas, 595 U.S. at 6 (emphasis added). Although

the plaintiff does not need to find a “case directly on point,”

he or she must identify a binding precedent that is not

“materially distinguishable” and that can be said to “govern

the facts of this case” in the sense that it “place[s] the

statutory or constitutional question beyond debate.” Id. at

5–6 (citations omitted). “In other words, [a plaintiff] must

point to prior case law that articulates a constitutional rule

specific enough to alert these deputies in this case that their

particular conduct was unlawful.” Sharp v. County of

Orange, 871 F.3d 901, 911 (9th Cir. 2017) (emphasis in

original). With respect to the force used to handcuff him,

Spencer has failed to show either that this is an “obvious

case” under Graham’s standards or that there is a materially

indistinguishable precedent that squarely governs this case.

SPENCER V. PEW 15

2

As noted earlier, Graham’s objective test for assessing

the reasonableness of the use of force in effectuating an

arrest turns on “the facts and circumstances of each

particular case,” including certain specific factors that the

Court there identified. 490 U.S. at 396. Consideration of

these factors makes clear that this is not an “obvious case”

in which the general standards alone suffice to make clear to

every reasonable officer that the arresting officers’ conduct

up to the point of the handcuffing was unreasonable in

violation of the Fourth Amendment.

The first Graham factor—“the severity of the crime at

issue”—weighs in favor of Defendants. Spencer emphasizes

that he was initially told, upon stepping out of the car, that

he was being arrested for the offense of making a false

statement to a police officer, which is only a misdemeanor.

See ARIZ. REV. STAT. § 13-2907.01(A). But once Spencer

pushed Officer Rozema with his shoulder, he had committed

the offense of aggravated assault—an offense to which he

subsequently pleaded guilty—and that offense is a felony.

See id. § 13-1204(G). This was a sufficiently serious offense

to warrant the use of potentially significant force to ensure

that Spencer submitted to arrest.

The second Graham factor—which we have identified

as the “most important,” Mattos v. Agarano, 661 F.3d 433,

441 (9th Cir. 2011) (en banc)—is the extent to which “the

suspect poses an immediate threat to the safety of the officers

or others.” Graham, 490 U.S. at 396. Construing the

evidence in the light most favorable to Spencer, we conclude

that a reasonable jury could find that, after the initial assault

on Rozema, Spencer did not thereafter strike any of the

officers. Spencer specifically denied under oath that he had

16 SPENCER V. PEW

thrown any punches, kicks, or strikes at the officers. Nor

does the video evidence disclose any instance in which

Spencer struck any of the officers. Moreover, as Spencer

notes, after the paramedics had arrived, someone asked Shall

if Spencer had “throw[n] any blows or anything like that,”

and Shall responded, “No.” To the extent that Spencer

presented any threat to the officers as they attempted to

handcuff him, it was primarily the incidental result of the

difficulty they had in doing so.

The third Graham factor is whether the person “is

actively resisting arrest or attempting to evade arrest by

flight.” 490 U.S. at 396. Viewing the evidence in the light

most favorable to Spencer, we agree that a reasonable trier

of fact could conclude he was not trying to run away from

the officers at the time that he was tackled. Spencer claims

that he shoved the officer “to create separation between”

himself and them, that he did not break free of the officer’s

grip, and that he did not run up the street as the officers

claimed. However, the video evidence makes indisputably

clear that it took very substantial effort to secure Spencer in

a set of double-linked handcuffs.

Spencer emphasizes that a reasonable trier of fact could

conclude that he did not subjectively intend to resist the

officers: as he later claimed in his declaration, he “had little

to no control over [his] body,” because his “legs and arms

were going in and out of being locked up.” And to the extent

that his non-compliance involved “voluntary movements,”

he contends, they “were not resistance, but an attempt to

block punches.” But “[t]he qualified immunity analysis . . .

is limited to ‘the facts that were knowable to the defendant

officers’ at the time they engaged in the conduct in question,”

Hernandez v. Mesa, 582 U.S. 548, 554 (2017), and so

Spencer’s subjective intentions are not relevant except to the

SPENCER V. PEW 17

extent that they were communicated to the officers. Spencer

averred that he informed the officers at one point that “my

hands were locked up,” and we are unable to say that this

claim is contradicted by the video evidence. As noted

earlier, the video evidence at one point shows that Spencer

said something about his “hands” in response to an

instruction to put his hands behind his back, shortly before

he also tells the officers, “I have a pacemaker!” But even

taking as true that Spencer told the officers that his hands

were “locked up,” we cannot say that every reasonable

officer, considering the objective circumstances concerning

the nature and length of Spencer’s non-compliance, would

have taken his statements at face value. See Winterrowd v.

Nelson, 480 F.3d 1181, 1184 (9th Cir. 2007) (noting that an

officer need not “unduly credit[]” a suspect’s claim that he is

“physically unable to comply with a request”).

Spencer also argues that there is a factual dispute as to

whether the officers correctly characterized his non-

compliant behavior as involving “superhuman strength” and

“high pain tolerance.” But even setting aside these

characterizations, the video evidence indisputably shows

that, for nearly three full minutes after Shall arrived, the

officers had great difficulty in getting Spencer handcuffed.

And for two of those three minutes, Macklin had joined the

other two officers in attempting to handcuff Spencer.

Considering these factors together in light of all of the

circumstances, “this is not an ‘obvious case’ where ‘a body

of relevant case law’ is not needed.” District of Columbia v.

Wesby, 583 U.S. 48, 65 (2018) (citation omitted). Keeping

in mind that “[t]he ‘reasonableness’ of a particular use of

force must be judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of

hindsight” and that “[t]he calculus of reasonableness must

18 SPENCER V. PEW

embody allowance for the fact that police officers are often

forced to make split-second judgments—in circumstances

that are tense, uncertain, and rapidly evolving—about the

amount of force that is necessary in a particular situation,”

Kisela, 584 U.S. at 103 (citation omitted), we are unable to

say that this is an “obvious” case in which, from the Graham

factors alone, “every reasonable official would have

understood that what he is doing violates” the right to be free

from excessive force, Mullenix v. Luna, 577 U.S. 7, 11

(2015) (emphasis added) (citation omitted). Even taking the

evidence in the light most favorable to Spencer, his objective

actions made it very difficult for the officers to handcuff him,

resulting in an extended struggle and multiple uses of

various types of force (a stomach punch, head strikes, and

taser shots) that each could reasonably be thought to be

likely to reduce Spencer’s non-compliance with being

handcuffed.5 The Graham factors, standing alone, do not

clearly establish that the sort of significant force employed

here cannot be used against a defendant who objectively

appears to resist being handcuffed for a serious crime and

who does so to such a degree that it took three officers

several minutes even to get a linked set of double handcuffs

on him.

3

Because this is not an “obvious” case under Graham’s

general framework, Spencer “must identify a case that put

5

Spencer contends that there is a triable issue as to whether the officers

acted, not with the purpose of inducing compliance, but with the

“punitive” purpose of dispensing “punishment for his having provided a

false name.” But as the Supreme Court made clear in Graham, “the

subjective motivations of the individual officers . . . has no bearing on

whether a particular seizure is ‘unreasonable’ under the Fourth

Amendment.” 490 U.S. at 397.

SPENCER V. PEW 19

[the officers] on notice that [their] specific conduct was

unlawful.” Rivas-Villegas, 595 U.S. at 6. He has failed to

do so.

With respect to the force used up to the point of

handcuffing, Spencer first points to Jones v. Las Vegas

Metropolitan Police Department, 873 F.3d 1123 (9th Cir.

2017). In Jones, officers used one or more tasers

continuously “for over ninety seconds” in the course of

arresting Anthony Jones, an unarmed suspect who had fled

on foot from a routine traffic stop and who had “neither

threatened [the officers] nor committed a serious offense.”

Id. at 1130. One officer “tased Jones essentially nonstop that

whole time.” Id. at 1127. As soon as the tasing stopped,

Jones’s “body went limp” and he “was pronounced dead

shortly thereafter.” Id. Here, the officers did not

simultaneously use multiple tasers, nor did they tase Spencer

for 90 seconds straight until he was literally at the point of

death. And unlike Jones, Spencer had committed an assault

on a police officer, which is a much more serious offense

than running from a traffic stop. Given these significant

differences, Jones does not “‘squarely govern[]’ the specific

facts at issue.” Kisela, 584 U.S. at 104 (citation omitted).

Spencer also relies on Mattos v. Agarano, 661 F.3d 433

(9th Cir. 2011) (en banc), but it too “is materially

distinguishable and thus does not govern the facts of this

case.” Rivas-Villegas, 595 U.S. at 6. Mattos involved

consolidated appeals from two entirely separate cases, one

involving the use of a taser against Malaika Brooks and the

other involving taser use against Jayzel Mattos. Mattos, 661

F.3d at 436 & n.1. Although we held that qualified immunity

applied in both cases, we also held that the taser use in each

case constituted excessive force in violation of the Fourth

Amendment. Id. at 443–46, 448–52.

20 SPENCER V. PEW

In the first case, Brooks refused to sign her speeding

ticket for driving 32 miles per hour in a 20-mile-per-hour

school zone, and when the officers stated that she needed to

step out of the car and that she would be arrested, she refused

to move and instead “stiffened her body and clutched the

steering wheel to frustrate the officers’ efforts to remove her

from the car.” Id. at 437. Noting that the officers had

succeeded in removing Brooks’s keys from the car’s ignition

and that the officers knew that Brooks was seven months

pregnant, we held that the officers’ application of a taser

three times in “rapid succession” was excessive in light of

the “minor” nature of her alleged offenses, the lack of any

“immediate threat to the safety of the officers or others,” and

the absence of any other exigency. Id. at 445–46. Here,

Spencer had committed a much more serious offense than

speeding and refusing to sign a ticket. And Spencer was not

a seven-months pregnant woman who passively resisted

leaving her car; video evidence shows he was a relatively

large and strong person with whom multiple officers

struggled on the ground for nearly three minutes. Id. at 445–

46 (stating it was an “overwhelmingly salient” fact that the

officers made rapid successive use of a taser on a person the

officers knew to be seven months pregnant).

In the second case addressed in the Mattos opinion,

Mattos asked her 14-year-old daughter to call the police in

connection with a domestic incident that was then occurring

between Mattos and her husband Troy. 661 F.3d at 438.

When the officers arrived, they found Troy sitting outside

with “a couple of open beer bottles lying nearby” and

“smell[ing] of alcohol.” Id. The officers attempted to

question the 200-pound, 6-foot-3-inch Troy about the

domestic dispute, but he became “agitated and rude.” Id.

After Troy went inside to get Mattos, an officer followed

SPENCER V. PEW 21

him into the home. Id. at 438–39. Mattos came into the

living room, approached the officer, and agreed to speak

with him outside. Id. at 439. Before she could do so,

however, a second officer entered the home, announced that

Troy was under arrest, and “pushed up against [Mattos’s]

chest” as he approached Troy, who was then behind Mattos.

Id. Mattos “extended her arm to stop her breasts from being

smashed against [the passing officer’s] body,” all while she

continued speaking with the first officer. Id. The second

officer stated to Mattos, “Are you touching an officer?” Id.

Then, without warning, that officer deployed his taser on

Mattos in “dart-mode” while Troy was handcuffed by the

two other officers who were then in the room. Id. We held

that, because Mattos’s resistance was “minimal,” she was

otherwise cooperating with the officers, and she “posed no

threat to the officers,” the use of a taser in dart mode without

warning was unreasonable. Id. at 451. Here, by contrast,

Spencer’s objective level of resistance was more than

minimal, and he was the person sought to be arrested and not

an “innocent” victim of a domestic dispute. Id.

In his reply brief, Spencer also cites two cases—

Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir.

2007), and Winterrowd, 480 F.3d 1181—for the proposition

that “[o]fficers cannot use significant force against a

noncomplying suspect if the noncompliance is involuntary

or unintentional.” Neither precedent squarely governs this

case.

In Blankenhorn, several officers struggled on the ground

with Blankenhorn while they attempted to arrest him for

trespassing, and one of them used punches in an effort to get

Blankenhorn to free up his hands so that he could be

handcuffed. Blankenhorn, 485 F.3d at 478, 480. Noting that

the officer’s justification for the punches was that

22 SPENCER V. PEW

Blankenhorn kept his arms underneath himself, we noted

that, in light of Blankenhorn’s contrary testimony, we had to

take as true that Blankenhorn “never pinned his arms

underneath his body.” Id. at 480. Under those facts,

Blankenhorn’s arms were accessible to the officers, and the

punches were simply unnecessary and excessive. Id. Here,

by contrast, the undisputed evidence shows that, at the time

of the various strikes to Spencer, his arms were not

comparably available to the officers for handcuffing.

Winterrowd involved a Terry stop of a motorist based on

suspicion that his car’s “plates were invalid.” 480 F.3d at

1182. After Winterrowd was unable to produce any

registration for the car, the officers asked him to step out of

the vehicle. Id. As the officers then attempted to perform a

“routine pat-down for officer safety”—and not an arrest—

Winterrowd stated that he could not put his hands behind his

back due to a shoulder injury. Id. at 1182–83. Without

making any further inquiry, the officers “forc[ed] him onto

the hood of the car” and then grabbed his arm “and forced it

up.” Id. at 1183. When Winterrowd “screamed in pain,” the

officer “applied greater pressure, pumping his arm up and

down.” Id. “After several seconds of this treatment, [the

officer] released Winterrowd, who fell to the ground.” Id.

In holding that the force used was unreasonable, we

emphasized that our decision did “not require officers to risk

their own safety by crediting a suspect’s claim that he is

injured.” Id. at 1186 (emphasis added); see also id. at 1184

(noting that “some suspects may feign injury” during a

police seizure). We instead held that, given the very minor

offense involved, the lack of any “immediate threat” or

resistance from Winterrowd, and the availability of “other

means” for the officers to pat down Winterrowd, the officers

were unjustified in proceeding to conduct the pat down “in a

SPENCER V. PEW 23

manner that will cause the suspect pain.” Id. at 1186. Here,

by contrast, Spencer’s offense was not minor; he was being

arrested, not patted down during a Terry stop; and his

objective behavior involved protracted and substantial

noncompliance. Winterrowd does not establish that, in such

circumstances, the officers were required to credit Spencer’s

claims about why he was not cooperating.6

Given that this is not an obvious case and there is no

precedent that squarely governs, we conclude that

Defendants are entitled to qualified immunity with respect

to their use of force up to the point that Spencer was

handcuffed.

B

However, Spencer’s allegations of excessive force are

not limited to Defendants’ conduct before he was

handcuffed. Spencer also alleges that Pew violated

Spencer’s clearly established Fourth Amendment rights by

kneeling on his upper back and neck and by continuing to do

so after Spencer protested that it was difficult for him to

breathe. Viewing the facts in the light most favorable to

Spencer, we conclude that Pew’s conduct violated clearly

established law. In particular, we agree with Spencer that,

with respect to Pew’s conduct after Spencer was handcuffed,

our decision in Drummond ex rel. Drummond v. City of

Anaheim, 343 F.3d 1052 (9th Cir. 2003), is not “materially

6

Spencer also relies on Beaver v. City of Federal Way, 507 F. Supp. 2d

1137 (W.D. Wash. 2007), in which a magistrate judge, noting that “the

case law on use of Tasers is not well developed,” purported to establish

a series of bright-line rules about the use of tasers. Id. at 1149. However,

district court decisions “are insufficient to create a clearly established

right.” Marsh v. City of San Diego, 680 F.3d 1148, 1159 (9th Cir. 2012).

24 SPENCER V. PEW

distinguishable” and that it therefore “govern[s] the facts of

this case.” Rivas-Villegas, 595 U.S. at 6 (emphasis added).

In Drummond, officers responding to a call found

Drummond in a parking lot “hallucinating and in an agitated

state.” 343 F.3d at 1054. While awaiting an ambulance, they

“decided to take him into custody, ‘for his own safety.’” Id.

Drummond offered no resistance and was handcuffed after

being knocked to the ground. Id. One officer “put his knees

into Mr. Drummond’s back and placed the weight of his

body on him,” while a second officer “also put his knees and

placed the weight of his body on him, except that he had one

knee on Mr. Drummond’s neck.” Id. The officers continued

to kneel on Drummond’s back and neck despite his pleas that

“he could not breathe and that they were choking him.” Id.

at 1054–55. Drummond was subsequently placed in a

“hobble restraint,” and one minute later he fell unconscious.

Id. at 1055. Although he was revived after several minutes,

he remained in a “permanent vegetative state.” Id.

In holding that the force was excessive, we emphasized

several considerations. First, the level of force used was

“severe,” because “two officers continued to press their

weight on [Drummond’s] neck and torso as he lay

handcuffed on the ground and begged for air.” Drummond,

343 F.3d at 1056. Second, although Drummond concededly

may have presented a danger to himself or others before

being handcuffed, once he was on “‘the ground where the

officers cuffed his arms behind his back as he lay on his

stomach,’ a jury could reasonably find that he posed only a

minimal threat to anyone’s safety.” Id. at 1057–58

(simplified). Third, a jury could find that, once handcuffed,

Drummond was not resisting and “there was therefore little

or no need to use any further physical force.” Id. at 1058.

Fourth, Drummond’s obvious mental illness suggested that

SPENCER V. PEW 25

officers should have considered using less severe measures.

Id. In light of these factors, we held that any reasonable

officer “should have known that squeezing the breath from a

compliant, prone, and handcuffed individual despite his

pleas for air involves a degree of force that is greater than

reasonable.” Id. at 1059.

We believe that Drummond is sufficiently materially

similar to this case to provide adequate notice to Pew that his

post-handcuffing compression of Spencer’s back and neck

with his knee was excessive. Kisela, 584 U.S. at 105. While

the two cases present very different facts prior to the

handcuffing of the detainee, they are materially similar in the

relevant respects post-handcuffing.

As the body camera footage shows, once Spencer was

handcuffed, Pew knelt on Spencer, placing his full body

weight onto Spencer’s upper back and neck as other officers

held him down. Except for a few seconds in which he briefly

knelt next to Spencer, Pew had one or both knees on

Spencer’s back for nearly three minutes. During that time,

Spencer complained that he could not breathe at least four

separate times. At one point, Pew simultaneously had his

right knee on Spencer’s head and his left knee on Spencer’s

back for more than 10 seconds. Viewed in the light most

favorable to Spencer, these facts are not materially

distinguishable from Drummond. Here, as in Drummond,

Pew “continued to press [his] weight on [Spencer’s] neck

and torso as he lay handcuffed on the ground and begged for

air.” 343 F.3d at 1056. Although Spencer continued to

move somewhat on the ground, he was handcuffed and

surrounded by multiple officers, and a jury could reasonably

conclude that he was no longer providing any serious

resistance and that “he posed only a minimal threat to

anyone’s safety.” Id. at 1057–58. Although some force

26 SPENCER V. PEW

might have been warranted to check his remaining

movements, every reasonable officer would recognize that

full-body-weight compression of a then largely “compliant,

prone, and handcuffed individual despite his pleas for air

involve[d] a degree of force that is greater than reasonable.”

Id. at 1059. Although Drummond involved a mentally ill

person rather than someone who had resisted handcuffing

and involved two officers rather than one, we do not think

these factual differences are material to Drummond’s

controlling holding here.

Nor does it matter that, in Drummond, the detainee’s

injuries—viz., severe brain damage—were much more

grievous than Spencer’s claim that he suffered “two

fractured vertebrae” in his lower back and experiences

lingering pain and numbness in his shoulder, back, and neck.

At the time that Pew acted, he could not know the exact

extent of the injuries that might result from his unwarranted

use of severe compression on Spencer’s back. See

Hernandez v. Mesa, 582 U.S. at 554 (stating that the

qualified immunity inquiry “is limited to ‘the facts that were

knowable to the defendant officers’ at the time they engaged

in the conduct in question” (citation omitted)). While the

later-revealed extent of a detainee’s injuries may provide

some objective evidence of the amount of force used, see

Felarca v. Birgeneau, 891 F.3d 809, 817 (9th Cir. 2018), the

claimed injuries here, although different, are not minor and

provide no basis for materially distinguishing Drummond.7

7

Contrary to what Defendants contend, Rivas-Villegas provides no basis

for escaping Drummond’s controlling holding here. In sharp contrast to

this case, the kneeing of the back that occurred in Rivas-Villegas lasted

“for no more than eight seconds.” 595 U.S. at 7. And because we

conclude that Drummond squarely governs here, we need not resolve the

SPENCER V. PEW 27

Viewing the facts in the light most favorable to Spencer,

we conclude that Pew violated clearly established law in

connection with his kneeling on Spencer after Spencer was

handcuffed. Accordingly, in that respect, we reverse the

district court’s grant of qualified immunity to Pew.

III

The only remaining question is whether any of the other

officers are also liable for Pew’s excessive force. Spencer

contends that the other Defendants are also liable as so-

called “integral participants” in Pew’s constitutional

violation,8 but this theory fails as a matter of law.

Although “vicarious liability” is not available under

§ 1983, see Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009), our

caselaw has held that an officer may be culpable for a

constitutional violation committed by another officer if the

former “is an ‘integral participant’ in the unlawful act” of the

latter. Peck v. Montoya, 51 F.4th 877, 889 (9th Cir. 2022)

(citation omitted). In Peck, we summarized our precedent’s

“integral-participant doctrine” as allowing liability “only if

(1) the defendant knew about and acquiesced in the

constitutionally defective conduct as part of a common plan

with those whose conduct constituted the violation, or (2) the

defendant set in motion a series of acts by others which the

defendant knew or reasonably should have known would

parties’ disputes as to whether our decision in LaLonde v. County of

Riverside, 204 F.3d 947 (9th Cir. 2000), also sufficed to clearly establish

that Pew violated Spencer’s Fourth Amendment rights.

8

Strictly speaking, Spencer only invoked the integral-participant

doctrine with respect to Deputies Macklin and Shall, but that is because

his brief takes the position that Rozema was equally directly culpable as

Pew in all respects. We construe the latter argument as subsuming within

it the lesser-included argument that Rozema would also alternatively be

liable as an integral participant.

28 SPENCER V. PEW

cause others to inflict the constitutional injury.” Id. at 891

(emphasis added). Spencer failed to present sufficient

evidence to create a triable issue of liability under either

theory as to any of the other officers.

Although Macklin leaned on Spencer’s legs and Shall

attached leg shackles to Spencer during part of the time that

Pew had his knee on Spencer’s back, there is no evidence

that Macklin or Shall knowingly acquiesced in Pew’s

unlawful conduct “as part of a common plan” with him.

Peck, 51 F.4th at 891. Nor did their conduct set in motion

acts that they reasonably should have known “would cause”

Pew to engage in unlawful conduct. Id. (emphasis added).

And Rozema’s relevant actions, which were limited to

getting Spencer handcuffed, likewise provide no basis for

finding him to be an integral participant in Pew’s post-

handcuffing misconduct.

* * *

For the foregoing reasons, we reverse in part the district

court’s grant of summary judgment as to Officer Pew, and

we remand for proceedings with respect to him that are

consistent with this opinion. We otherwise affirm the district

court’s grant of summary judgment to all Defendants.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.