Puente v. City of Phoenix

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PUENTE, an Arizona nonprofit No. 22-15344

corporation; PODER IN ACTION, an

Arizona nonprofit corporation; IRA

YEDLIN; JANET TRAVIS; D.C. No. 2:18-cv-

CYNTHIA GUILLEN; JACINTA 02778-JJT

GONZALEZ GOODMAN,

individually and as class

representatives, OPINION

Plaintiffs-Appellees,

v.

CITY OF PHOENIX, a municipal

corporation; MICHAEL SULLIVAN,

in his official capacity; JERI L.

WILLIAMS; GLENN NEVILLE;

JOHN STICCA; LANE WHITE;

UNKNOWN PARTIES, Does 1-20,

Defendants,

and

BENJAMIN MOORE, individually

and in their official capacities;

DOUGLAS MCBRIDE; ROBERT

SCOTT; CHRISTOPHER TURIANO;

JEFFREY HOWELL; GEORGE

HERR,

2 PUENTE V. CITY OF PHOENIX

Defendants-Appellants.

PUENTE, an Arizona nonprofit No. 22-15661

corporation; IRA YEDLIN; JANET

TRAVIS; CYNTHIA GUILLEN; D.C. No. 2:18-cv-

JACINTA GONZALEZ GOODMAN, 02778-JJT

individually and as class

representatives; PODER IN ACTION,

an Arizona nonprofit corporation,

Plaintiffs-Appellants,

v.

CITY OF PHOENIX, a municipal

corporation; MICHAEL SULLIVAN,

in his official capacity; BENJAMIN

MOORE, individually and in his

official capacity; JERI L. WILLIAMS;

DOUGLAS MCBRIDE; ROBERT

SCOTT; CHRISTOPHER TURIANO;

JEFFREY HOWELL; GEORGE

HERR,

Defendants-Appellees,

and

GLENN NEVILLE; JOHN STICCA;

LANE WHITE; UNKNOWN

PARTIES, Does 1-20,

Defendants.

PUENTE V. CITY OF PHOENIX 3

Appeal from the United States District Court

for the District of Arizona

John Joseph Tuchi, District Judge, Presiding

Argued and Submitted May 16, 2023

Phoenix, Arizona

Filed December 19, 2024

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

Kenneth K. Lee, Circuit Judges.

Opinion by Judge Collins

SUMMARY *

Civil Rights/Excessive Force

The panel reversed the district court's partial denial of

summary judgment to Phoenix Police Department (“PPD”)

defendants and affirmed the district court’s partial grant of

summary judgment to PPD defendants in an action under 42

U.S.C. § 1983 brought by two organizations and four

individuals asserting a variety of claims arising from actions

that defendants took against political demonstrators

protesting outside a rally held by then-President Trump at

the Phoenix Convention Center on August 22, 2017.

Plaintiffs alleged that defendants violated their

constitutional rights under the First, Fourth, and Fourteenth

*

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 PUENTE V. CITY OF PHOENIX

Amendments by dispersing protesters through the use of tear

gas, other chemical irritants, and flash-bang grenades. After

certifying two distinct classes, the district court ultimately

granted summary judgment to defendants on all claims

except for the individual Fourth Amendment excessive-

force claims asserted by three of the individual plaintiffs

against certain PPD officers.

The panel affirmed the district court’s summary

judgment for defendants on the class claims for excessive

force under the Fourth and Fourteenth Amendments. There

was no “seizure” of the class members within the meaning

of the Fourth Amendment because the record showed that

defendants’ use of airborne and auditory irritants was not

objectively aimed at restraining the class members, even

temporarily. Because the class’s excessive-force claims

arose outside the context of a seizure, the panel evaluated

those claims under the Fourteenth Amendment shocks-the-

conscience test rather than the Fourth Amendment’s

objective reasonableness standard. Given the quickly

escalating situation, there was no triable issue that the

officers had an improper purpose to harm rather than

legitimate law enforcement objectives at the time they

decided to employ chemical irritants and flash-bang

grenades to disperse the crowd.

The panel reversed the district court’s denial of summary

judgment to the individual defendants on the excessive-force

damages claims asserted by individual plaintiffs Yedlin,

Travis and Guillen, who were physically impacted by

projectiles. The panel held that the officers were entitled to

qualified immunity because they acted reasonably under the

circumstances or did not violate clearly established law.

PUENTE V. CITY OF PHOENIX 5

The panel next affirmed the district court’s summary

judgment for the individual defendants with respect to the

First Amendment claims asserted by all plaintiffs, on their

own behalf, and on behalf of the classes. The individual

defendants were entitled to qualified immunity because,

based on the undisputed facts, including the use of

unidentified gas and pyrotechnic devices by agitators, there

were sufficient objectively reasonable grounds to establish

the requisite clear and present danger of an immediate threat

to public safety, peace, or order. Moreover, there was no

triable issue that the dispersal of the crowd was undertaken

with retaliatory intent.

The panel affirmed the district court’s summary

judgment to Police Chief Williams. Because the panel

concluded that all of Plaintiffs’ claims either fail or did not

involve the violation of a clearly established right, Plaintiffs’

claims of supervisorial liability necessarily fail. Finally, the

panel affirmed the district court’s summary judgment to the

City of Phoenix on the municipal liability claim. Plaintiffs

failed to raise a triable issue that Chief Williams caused or

ratified the use of excessive force against Guillen or that the

City was deliberately indifferent to Guillen’s constitutional

rights.

6 PUENTE V. CITY OF PHOENIX

COUNSEL

Gerard J. Cedrone (argued), Goodwin Procter LLP, Boston,

Massachusetts; Alexis S. Coll, Indra N. Chatterjee, and Yoo

N. Lee, Goodwin Procter LLP, Redwood City, California;

Andrew Kim, Goodwin Procter LLP, Washington, D.C.;

James Nikraftar, Goodwin Procter LLP, Santa Monica,

California; Kathleen E. Brody, Mitchell Stein Carey

Chapman PC, Phoenix, Arizona; Darrell Hill and Jared G.

Keenan, American Civil Liberties Union of Arizona,

Phoenix, Arizona; Paul L. Hoffman, Schonbrun Seplow

Harris Hoffman & Zeldes LLP, Hermosa Beach, California;

John C. Washington, Schonbrun Seplow Harris Hoffman &

Zeldes LLP, Los Angeles, California; Barrett S. Litt,

McLane Bednarski & Litt LLP; Pasadena, California; Dan

Stormer, Hadsell Stormer & Renick LLP, Pasadena,

California; Hong-An Vu, Foundation Law Group LLP, Los

Angeles, California; Cindy Pánuco, Nisha Kashyap, and

Joanna E. Adler, Public Counsel, Los Angeles, California;

for Plaintiffs-Appellees.

Mary R. O'Grady (argued), David B. Rosenbaum, and

Joshua J. Messer, Phoenix, Arizona; Steven J. Renick

(argued), Mildred K. O'Linn, and Scott Wm. Davenport,

Manning & Kass Ellrod Ramirez Trester LLP, Los Angeles,

California; for Defendants-Appellants.

PUENTE V. CITY OF PHOENIX 7

OPINION

COLLINS, Circuit Judge:

In this action under 42 U.S.C. § 1983, two organizations

and four individuals assert a variety of claims arising from

the actions that the Phoenix Police Department (“PPD”) took

against political demonstrators protesting outside a rally held

by then-President Trump at the Phoenix Convention Center

on August 22, 2017. In particular, Plaintiffs allege that the

PPD violated their constitutional rights under the First,

Fourth, and Fourteenth Amendments by dispersing the

protesters through the use of tear gas, other chemical

irritants, and “flash-bang grenades” that “produce loud

explosive noises and bright flashes of light.” After certifying

two distinct classes—one for certain damages claims and

another for injunctive relief—the district court ultimately

granted summary judgment to Defendants on all claims

except for the individual Fourth Amendment excessive-

force claims asserted by three of the individual Plaintiffs

against certain officers. Those officers have appealed that

partial denial of summary judgment, arguing that they are

entitled to qualified immunity. After the district court

certified its partial judgment against Plaintiffs for immediate

appeal under Federal Rule of Civil Procedure 54(b),

Plaintiffs appealed that judgment as well. We reverse the

district court’s partial denial of summary judgment to

Defendants, and we affirm the court’s partial grant of

summary judgment to Defendants on all remaining claims.

8 PUENTE V. CITY OF PHOENIX

I

A

Because this appeal challenges a partial grant and partial

denial of summary judgment to Defendants, we recite the

underlying facts by construing the record evidence in the

light most favorable to Plaintiffs. See O’Doan v. Sanford,

991 F.3d 1027, 1035 (9th Cir. 2021).

On August 22, 2017, then-President Trump held a

scheduled rally at the Phoenix Convention Center. After the

announcement of the rally, various organizations announced

their intention to protest outside the event. These included

Plaintiffs Poder in Action (“Poder”) and Puente, which are

Phoenix-based membership organizations that engage in

advocacy concerning immigrants’ rights and other issues. In

anticipation of the rally and accompanying counter-protests,

the PPD coordinated with federal, state, and local agencies

to develop a security plan.

As part of that security plan, the PPD decided to

designate two separate areas for security and protest-

assembly purposes. The first of these was the so-called

“Free Speech Zone,” on the block immediately north of the

convention center, where “anti-Trump protesters were

expected to gather.” 1 The second of these was the so-called

“Public Safety Zone,” which ran between the Free Speech

Zone and the convention center itself. In order to facilitate

emergency vehicle and police access, the Public Safety Zone

(which included the street between the Free Speech Zone

and the convention center) was closed to the public and was

fenced off from the Free Speech Zone. The following image

1

On appeal, Plaintiffs do not raise any contention that the establishment

of the Free Speech Zone was itself unconstitutional.

PUENTE V. CITY OF PHOENIX 9

from the record shows the position of the Free Speech Zone

(marked as the “Protest Area”):

The Free Speech Zone began on the north side of Monroe

Street and ran between 2nd and 3rd Street. The Public Safety

Zone included the entirety of Monroe Street itself and ran

eastward from 2nd Street all the way to 5th Street (which is

not included in the above image).

Acting through its Community Relations Bureau

(“CRB”), the PPD also communicated with local groups

who had notified the PPD that they were planning

demonstrations. These efforts included a meeting, the day

before the rally, between a Detective in the CRB and “the

protest organizer” for Puente. Various protest organizers

met with members of the CRB to discuss their plans, arrange

for delivery of supplies, and coordinate a police escort to the

Free Speech Zone on the day of President Trump’s rally.

10 PUENTE V. CITY OF PHOENIX

The PPD anticipated the possibility of isolated unlawful

conduct occurring in the vicinity of the rally. Among the

“potential threats” or weapons that the PPD thought might

possibly be used were “improvised incendiary devices, guns,

knives, rocks, and human excrement.” Based on its

experience with prior protests, the PPD also had specific

concerns about the decentralized movement known as

“Antifa,” whose members the PPD believed might attend the

event. The PPD was aware that Antifa members had

engaged in violence or vandalism at previous public political

events.

Nonetheless, the PPD’s planning for this specific event

did not include any particularized rules of engagement

concerning the use of force beyond those applicable to such

deployments generally. Similarly, while the PPD

anticipated that it might need to declare an unlawful

assembly, it did not create a specific plan for doing so and

instead distributed general guidance regarding the unlawful

assembly statute to its officers. The PPD’s general training

emphasized the tactic of isolating and addressing groups of

individuals acting unlawfully within a larger protest.

The PPD also planned to have available at the event a

contingent of persons from its “Tactical Response Unit”

(“TRU”). This group, also known as the “Field Force,” is a

specialized PPD unit that responds to civil disturbances. Its

members are trained on, and governed by, specific PPD

policies covering potential uses of force. This training

includes guidance for protecting First Amendment assembly

and free speech rights. Defendant Lieutenant Benjamin

Moore headed the TRU deployment at this particular event.

Within TRU is an even more specialized group called the

Grenadiers. Grenadiers train in the use of chemical agents

PUENTE V. CITY OF PHOENIX 11

and munitions such as “pepper balls”—concentrated

powdered chemical projectiles that induce a physical

reaction similar to that caused by pepper spray. That training

includes instruction on when and how to appropriately

deploy chemical agents. Although Grenadiers are present at

dozens of protests each year, the most recent prior incident

where they actually used chemical agents was in July 2016.

All named Defendants in this case who are individuals

(except for Police Chief Jeri Williams) were experienced

Grenadiers who had overseen multiple protests prior to

August 22, 2017. Moore in particular had overseen

hundreds of protests.

B

Pursuant to its security plan and to prevent protesters in

the Free Speech Zone from occupying the Public Safety

Zone on Monroe Street, the PPD erected a three-foot high

pedestrian fence “threaded with yellow police tape that said

‘Police Line Do Not Cross.’” To handle the crowds,

approximately 985 public safety employees—including

TRU officers and Grenadiers—were deployed in the area.

The PPD also stationed undercover officers in the Free

Speech Zone to observe the demonstrators’ activities and to

monitor the crowd for possible threats throughout the

afternoon and evening.

Protesters began arriving outside the convention center

on the morning of August 22. As noted earlier, some protest

groups had notified the CRB in advance of their intention to

protest, and the CRB assisted them with logistical details,

including escorting some groups as they made their way to

the convention center area. Members of Plaintiffs Puente

and Poder arrived at the Free Speech Zone shortly after 4:00

PM and demonstrated there for several hours.

12 PUENTE V. CITY OF PHOENIX

Approximately 6,000 people gathered outside the

convention center at the height of the protest, which

proceeded without major incidents during the day. President

Trump arrived at the convention center around 6:30 PM, and

the demonstrators continued to remain largely peaceful.

The first violent incidents occurred shortly after 7:00

PM, when unknown persons in the Free Speech Zone began

throwing water bottles across Monroe Street at the police

and at those waiting in line to enter the convention center.

The PPD responded by moving additional TRU officers to

Monroe Street and by broadcasting a loud message using a

long-range acoustic device (“LRAD”) reminding protesters

to stop throwing objects and to remain peaceful. Around that

time, Moore received reports regarding the presence of

potential Antifa members in the crowd, and he ordered his

officers to watch them and attempt to communicate with

them. About an hour later, around 8:00 PM, Moore received

specific reports that certain of these potential Antifa

members were carrying signs, including signs on tall poles.

Antifa members were known to have used “tall signs” in the

past to topple fences and barriers, and Moore suspected that

a similar attempt might be made to breach the fence

separating the Public Safety Zone from the Free Speech

Zone.

At 8:05 PM, Moore was informed that approximately 10

to 20 individuals thought to be members of Antifa were

beginning “to start some trouble” in the Free Speech Zone.

Given the group’s distinctive clothing, banners, and

behavior, Moore was able to identify several suspected

Antifa members within the crowd in the Free Speech Zone,

and at approximately 8:07 PM, he directed the head of the

Grenadiers, Sergeant Douglas McBride, to “get eyes on it.”

According to McBride, the Antifa members were acting

PUENTE V. CITY OF PHOENIX 13

aggressively and shouting profanities. Around the same

time, officers observed suspected Antifa members shove a

protester who had told them to stop throwing objects. CRB

officers approached these members and attempted to talk

with them in an effort to de-escalate the situation, but the

officers reported to Moore that the members would not

communicate with them. McBride made all Grenadiers

aware of the suspected Antifa members in the crowd, but the

PPD did not attempt to remove or arrest these people at this

time.

At 8:11 PM, Moore was informed that President

Trump’s motorcade would soon depart from the convention

center. At 8:15 PM, Moore was informed that people were

throwing water bottles down from a parking garage located

at the edge of the Free Speech Zone, requiring the

deployment of TRU officers to secure the building. The

PPD used the LRAD to make continuous announcements to

warn people not to throw objects.

Around 8:20 PM, Moore noticed that the suspected

Antifa members had erected large signs near the fence

separating the Free Speech Zone from the Public Safety

Zone on Monroe Street. The PPD officers approached and

saw these members hooking their flags and banners to the

fencing; Moore believed that this could be a tactic to breach

the fence. At about 8:30 PM, Moore noticed these members

gathering behind the signs, and other officers reported seeing

them opening bags and handing out unidentified items. The

PPD officers did not attempt to separate these individuals

from the crowd of protesters. Moore directed McBride to

prepare the Grenadiers in the Public Safety Zone to deploy

pepper balls if the suspected Antifa members tried to breach

the fence.

14 PUENTE V. CITY OF PHOENIX

Around 8:32 PM, the suspected Antifa members began

pushing the fence. Moore ordered officers to fire pepper

balls at the ground in front of the suspected Antifa group.

These pepper balls released “PAVA powder,” which

temporarily irritates the eyes of persons nearby. As a result,

some members of the group dispersed into the crowd of

protesters. The PPD did not provide warnings or attempt to

make arrests before firing the pepper balls. In a declaration,

Moore explained he made the decision not to attempt

individualized arrests based on his belief that the suspected

Antifa group’s members “had not committed a crime or

given cause for arrest” and that—even if they had—sending

officers into the crowd to conduct arrests would risk hand-

to-hand violence, strain police manpower, and require

opening the police fence. Some Antifa members remained,

however, and another person who was not a suspected Antifa

member but who was standing near the fence began shaking

it with some force. That person was Plaintiff Ira Yedlin.

According to Moore, “Grenadiers then deployed more

pepper balls in that area.” Yedlin was physically hit by some

of these pepper balls.

With the suspected Antifa members then cleared away

from the police fence and dispersed among the crowd,

Moore directed the Grenadiers to “hold off” from firing any

more pepper balls to see whether the unlawful activity would

stop. But the activity instead escalated, with individuals in

the Free Speech Zone throwing rocks, water bottles, and

other objects at an increasing rate. This escalation in

violence coincided with President Trump’s motorcade

leaving the convention center at around 8:33 PM. At 8:34

PM, an individual in the Free Speech Zone threw a canister

into the Public Safety Zone that began emitting an unknown

gas. Moore ordered the officers present to don gas masks

PUENTE V. CITY OF PHOENIX 15

and to “deploy smoke canisters.” The smoke itself is “inert”

and does not produce the same physical effects as tear gas.

Although the smoke was deployed in an effort to “defuse the

situation, create distance, and . . . avoid escalating tactics,”

it did not succeed. Although some in the crowd left when

the PPD deployed the smoke, many in the crowd continued

to throw objects back at police; indeed, “the frequency of

items being thrown at officers significantly increased.” The

objects being thrown included a “pyrotechnical munition” of

some kind, which burned for a few minutes before being

extinguished by police.

Moore concluded that, once these unknown devices were

thrown at officers, the assembly had become unlawful, but

he did not make any announcement to that effect. He instead

ordered the Grenadiers to deploy tear gas and authorized the

further use of pepper balls as well as other riot-control

devices. From approximately 8:35 PM to 8:45 PM, PPD

officers began dispersing the crowd in the section of the Free

Speech Zone immediately across from the Phoenix

Convention Center by using tear gas and flash-bang

grenades. At 8:39 PM, Moore ordered the Grenadiers to cut

a gap in the police fence, enter the Free Speech Zone, and

begin clearing the remaining individuals in the area using

“targeted munitions like pepper balls when necessary to

drive back any threatening or aggressive individuals.” He

also organized a “skirmish line” of officers to walk slowly

down Monroe Street from 3rd Street to 2nd Street, where

there seemed to be a larger number of “unlawful actors.” As

that line of officers proceeded down Monroe Street, some

members of the TRU “deployed pepper spray from handheld

canisters at or near specific individuals they perceived as

threatening or aggressive.”

16 PUENTE V. CITY OF PHOENIX

At some point between 8:42 PM and 8:47 PM, Moore

decided to make a declaration that the assembly was

unlawful. This declaration was first announced at 8:52 PM

by a PPD helicopter using a public address system above the

Free Speech Zone—though the noise and chaos of the

concurrent police action substantially diminished protesters’

ability to understand and respond to the orders. At 9:02 PM,

a police vehicle at the intersection of Second and Monroe

Streets—one corner of the Free Speech Zone—began

repeatedly communicating unlawful-assembly declarations

as well. To clear those protesters remaining in the Free

Speech Zone, at 9:04 or 9:05 PM, TRU officers formed

another skirmish line and slowly marched north along

Second Street. Officers in the line used further non-lethal

munitions—including pepper balls and spray—against

particular individuals continuing to throw objects or

otherwise act aggressively. Plaintiff Janet Travis, who was

recording the events from a position directly in front of the

skirmish line, was hit by a projectile.

By approximately 9:10 PM, the PPD had cleared the last

remaining individuals away from the Free Speech Zone. The

PPD arrested a total of five people over the course of the day,

none of whom are Plaintiffs in this case.

At a post-event press conference, Police Chief Williams

stated that, in her view, officers handled the crowd

“successfully and professionally” and that “all in all” the

event was “a successful celebration.” She later stated that

the department’s conduct was “textbook perfect.” In a

subsequent memorandum to the City Manager, Ed Zuercher,

Williams wrote that she “believe[d] the actions of [her]

officers reflected the direction [she] gave them.” Zuercher

responded, writing that what the PPD “accomplished on

August 22 was notable” and hailed the officers’

PUENTE V. CITY OF PHOENIX 17

“professionalism in ensuring the safety and First

Amendment rights of the community.” Zuercher informed

Williams that the City planned to conduct an independent

investigation of the PPD’s conduct at the event, but he added

that his request did not “diminish the professionalism of our

Phoenix Police officers.”

Sometime after the protest, a “challenge coin”

commemorating the events of August 22, 2017 was created.

On one side, the coin depicted a protestor being hit in the

groin by a munition. That side also bore the inscription

“Good night left nut.” On the other side was the date of the

protest surrounded by the inscription “Making America

great again one nut at a time.” At least four PPD officers

possessed the coin, and at least one officer sold and

distributed it.

C

On September 4, 2018, Plaintiffs filed this action in the

district court, alleging that the PPD’s actions in dispersing

the crowd of protesters constituted excessive force under the

Fourth and Fourteenth Amendments, deprived the protesters

of their First Amendment speech rights, and discriminated

against the protesters in contravention of the Fourteenth

Amendment’s Equal Protection Clause.

In September 2019, the district court certified two

classes. 2 First, the court held that, under Federal Rule of

Civil Procedure 23(b)(3), individual Plaintiffs Gonzalez

Goodman, Guillen, and Travis could represent the following

class seeking damages with respect to certain claims alleging

excessive force under the Fourth and Fourteenth

2

Neither side challenges the class certification order on appeal, and we

therefore do not address any issue concerning whether the district court

properly certified a class action in this case.

18 PUENTE V. CITY OF PHOENIX

Amendments, deprivation of First Amendment rights, and

discrimination in contravention of the Fourteenth

Amendment’s Equal Protection Clause: 3

“[T]hose persons who were present on

August 22, 2017” in the Free Speech Zone

“and forced by PPD onto adjacent streets at

any point between 8:25 and 10:00 P.M., who

neither threw objects nor attempted to breach

the ‘free speech zone’ barrier along Monroe

Street, and who were subjected to the PPD’s

dispersal by the use of force, or other

unlawful police activity arising from the

police response to anti-Trump protestors,”

and “who were unlawfully dispersed by the

use of gas, pepper spray, pepper bullets, or

other chemical agents” (emphasis added).

The district court also held, under Rule 23(b)(2), that the

same three individuals, as well as Puente and Poder, could

3

The district court’s certification order should itself have clearly stated

the exact definition of the damages class that it was certifying and the

relevant claims. See FED. R. CIV. P. 23(c)(1)(B) (stating that “[a]n order

that certifies a class action must define the class and the class claims,

issues, or defenses”). Here, we are able to discern the damages class’s

definition only by reading the court’s order together with other

documents in the record. Moreover, the order, standing alone, clearly

suggests that the equal protection claim was being certified for class

treatment together with the First Amendment claim, but the court later

confusingly suggested in its summary judgment order that it had not

certified a class as to the equal protection claim.

PUENTE V. CITY OF PHOENIX 19

represent the following certified class seeking injunctive

relief:

“[A]ll persons who have in the past,

including those present at the anti-Trump

protest on August 22, 2017, between 8:25 and

10:00 P.M., or may in the future, participate

in, or be present at, demonstrations within the

City of Phoenix in the exercise of their rights

of free speech and assembly without

engaging in any conduct justifying the use of

force.”

The court, however, rejected Plaintiffs’ request to certify an

additional damages class with respect to persons who had

been “struck with projectiles of any type,” concluding that

the claims of such persons raised individualized issues that

precluded classwide treatment.

At the close of discovery, the parties cross-moved for

summary judgment. In February 2022, the district court

denied Plaintiffs’ motion in its entirety and granted

Defendants’ motion in part.

First, the district court granted summary judgment to

Defendants on all claims brought by the two certified

classes.

Regarding the classes’ excessive-force claims, the

district court began by addressing whether those claims were

properly evaluated under the Fourth Amendment’s

“objectively reasonable” standard, see Graham v. Connor,

490 U.S. 386, 397 (1989), or the Fourteenth Amendment’s

“shocks the conscience” standard, see County of Sacramento

v Lewis, 523 U.S. 833, 846–47 (1998); Wilkinson v. Torres,

20 PUENTE V. CITY OF PHOENIX

610 F.3d 546, 554 (9th Cir. 2010). That issue turned on

whether the use of force in connection with the deployment

of chemical agents involved a “seizure” within the meaning

of the Fourth Amendment, and the district court held that it

did not. Applying the relevant Fourteenth Amendment

substantive due process standards, the district court held that

there was no evidence in the record from which a reasonable

jury could conclude that Defendants acted with the requisite

“purpose to harm unrelated to legitimate law enforcement

objectives.”

The district court also granted summary judgment to

Defendants on the classes’ First Amendment claim. Noting

that the parties disagreed as to the applicable First

Amendment standards, the court held that Plaintiffs’ claim

failed either way. Applying Defendants’ preferred

standards, the district court held that Plaintiffs “failed to

demonstrate a genuine issue of material fact as to whether

chilling class members’ First Amendment rights was a

substantial or motivating factor that caused the officers to

take the actions they did.” Applying Plaintiffs’ preferred

standards in the alternative, the district court also held that

“no reasonable jury could conclude from the evidence that

the officers did not have adequate justification for their

actions.” The court further concluded that the equal

protection claim “fails with Plaintiffs’ First Amendment

claim.”

Having resolved all of the class claims, the district court

addressed the named Plaintiffs’ remaining claims. The court

held that Puente’s and Poder’s claims all failed as a matter

of law. To the extent that these organizations asserted claims

on their own behalf or any non-class claims for injunctive

relief, the court held that the evidence proffered by Puente

and Poder did “not go materially further than that pertaining

PUENTE V. CITY OF PHOENIX 21

to the class members,” and any such claims failed for the

same reasons. And to the extent that Puente and Poder also

purported to invoke “associational standing” to assert any

remaining non-injunctive claims on behalf of their members,

such claims would require the participation of such

individual members, and therefore did not qualify for

associational standing under Hunt v. Washington State Apple

Advertising Commission, 432 U.S. 333, 343 (1977).

The district court granted Defendants’ motion for

summary judgment on the individual claims brought by

Gonzalez Goodman because, as with Puente and Poder’s

claims, the court concluded that “the evidence related to

[her] claims d[id] not go materially further than that

pertaining to the class members.”

However, the district court denied summary judgment to

the relevant individual officers with respect to the individual

Fourth Amendment excessive-force claims asserted by

Yedlin, Travis, and Guillen. The district court held that,

because they had actually been struck by projectiles, Yedlin,

Travis, and Guillen were “seized” within the meaning of the

Fourth Amendment and that a genuine dispute of material

fact existed as to whether the force used against them was

reasonable. The court further held that the constitutional

right “not to be subjected to unreasonable force during a

seizure—by way of the deployment [of] pepper balls,

muzzle blasts, and pepper spray—where less severe or

intrusive means of applying force were available and

sufficient in the circumstances” was clearly established at

22 PUENTE V. CITY OF PHOENIX

the time, and the district court therefore denied qualified

immunity to the relevant officers as to these claims. 4

The district court nonetheless granted summary

judgment to Defendants on Yedlin’s, Travis’s, and Guillen’s

First Amendment and equal protection claims, holding that

there was insufficient evidence in the record to show that

“chilling Plaintiffs’ First Amendment rights was a

substantial motivating factor for the officers’ actions, let

alone . . . a but-for cause.”

The district court also granted summary judgment

against Plaintiffs on all claims against Williams and the City

of Phoenix. In contrast to Moore and McBride, the district

court concluded that there was insufficient evidence in the

record to demonstrate that Williams “reasonably should

have known that the actions she set in motion . . . would

cause officers to inflict constitutional injuries,” and that she

could therefore not be found liable as a supervisor under

Felarca v. Birgeneau, 891 F.3d 809, 819–20 (9th Cir. 2018).

The court also held that the record did not support a finding

that any of the constitutional violations Plaintiffs alleged

were caused by an official policy or custom of the City of

Phoenix and that consequently there was no basis for

municipal liability under Monell v. Department of Social

Services of the City of New York, 436 U.S. 658 (1978).

4

The officers involved in the particular incidents involving these three

individual Plaintiffs differed. Specifically, the court allowed Yedlin’s

excessive-force claim to go forward against Defendants Robert Scott,

Jeffrey Howell, and George Herr; Travis’s excessive-force claim to go

forward against Defendants Christopher Turiano and Howell; and

Guillen’s excessive-force claim to go forward against Defendants Scott,

Howell, Herr, and Turiano. The district court further held that McBride

and Moore could be held liable on these three claims under a theory of

supervisorial liability.

PUENTE V. CITY OF PHOENIX 23

Finally, the court held that there was sufficient evidence

to allow Plaintiffs to seek punitive damages on the individual

excessive-force claims that had survived summary

judgment.

The six individual Defendants against whom individual

excessive-force claims were allowed to proceed filed a

timely interlocutory appeal from the district court’s denial of

qualified immunity. Thereafter, the court granted Plaintiffs’

unopposed motion for entry of a partial judgment, under

Rule 54(b), on all decided claims. Plaintiffs timely appealed

that adverse partial judgment. We have jurisdiction over

both appeals under 28 U.S.C. § 1291. See Trim v. Reward

Zone USA LLC, 76 F.4th 1157, 1160 (9th Cir. 2023); Estate

of Anderson v. Marsh, 985 F.3d 726, 730–31 (9th Cir. 2021).

II

We turn first to Plaintiffs’ class claims of excessive force

under the Fourth and Fourteenth Amendments. 5 As noted

earlier, the district court certified a damages class, but only

with respect to persons in the Free Speech Zone “who were

unlawfully dispersed by the use of gas, pepper spray, pepper

bullets, or other chemical agents.” Plaintiffs contend that the

district court erred in concluding that the excessive-force

5

Because Plaintiffs do not dispute the district court’s determination that

the evidence concerning the various claims asserted by Puente, Poder,

and Gonzalez Goodman were co-extensive with those of the classes, we

will not separately discuss the claims of those three Plaintiffs. Our

holdings with respect to the class claims are dispositive of any separate

claims of Puente, Poder, and Gonzalez Goodman. Plaintiffs’ opening

brief also does not contest the district court’s determination that, if the

district court correctly held that the damages class’s excessive-force

claims failed, then Plaintiffs’ class claims for injunctive relief based on

excessive-force also fail. We therefore do not separately discuss such

injunctive claims.

24 PUENTE V. CITY OF PHOENIX

claims of these class members were governed by Fourteenth

Amendment standards rather than Fourth Amendment

standards. They also contend that, under either set of

standards, summary judgment for Defendants was improper.

We consider these contentions in turn.

A

By its terms, the Fourth Amendment protects the “right

of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures.”

See U.S. CONST. amend. IV (emphasis added). Accordingly,

when a police application of force involves a “seizure” of a

“person,” we evaluate whether that force was excessive

under the Fourth Amendment’s “‘objective reasonableness’

standard.” Graham v. Connor, 490 U.S. 386, 388 (1989)

(citation omitted). In contrast, when presented with a claim

of injuries resulting from alleged excessive force applied

“outside the context of a seizure,” we apply a Fourteenth

Amendment substantive due process standard that asks

whether the police behavior “shocks the conscience.”

County of Sacramento v Lewis, 523 U.S. 833, 844, 846–47

(1998). Here, we agree with the district court that the PPD’s

dispersal of class members by the airborne transmission of

chemical irritants (such as tear gas and pepper spray) and

auditory or visual irritants (such as the sound and flash

produced by flash-bang grenades) does not constitute a

seizure within the meaning of the Fourth Amendment.

“The ‘seizure’ of a ‘person’ can take the form of physical

force or a show of authority that in some way restrains the

liberty of the person.” Torres v. Madrid, 592 U.S. 306, 311

(2021) (simplified). A seizure by show of authority, “such

as an order for a suspect to halt,” does not constitute a

“seizure” within the meaning of the Fourth Amendment

PUENTE V. CITY OF PHOENIX 25

“unless and until the arrestee complies with the demand.” Id.

(emphasis added); see also California v. Hodari D., 499 U.S.

621, 626 (1991). But a seizure by physical force may occur

even “if the force, despite hitting its target, fails to stop the

person.” Torres, 592 U.S. at 311. In reaching this latter

conclusion, Torres drew on the common law governing

“arrests,” which constitute the “quintessential[]” “seizure”

covered by the Fourth Amendment. Id. at 312 (citation

omitted). Because, at common law, “an officer’s application

of physical force to the body of a person for the purpose of

arresting him was itself an arrest—not an attempted arrest—

even if the person did not yield,” id. at 311 (emphasis

altered) (internal quotation marks omitted), the Court

concluded that a “seizure” includes a “laying on of hands or

application of physical force to restrain movement, even

when it is ultimately unsuccessful.” Id. at 312 (emphasis

added) (citation omitted). Accordingly, the Court held that

“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.” Id. at 325.

The Court in Torres underscored the importance of the

common law’s intent-to-restrain requirement to any finding

of a “seizure” based on the “application of physical force to

the body of a person.” 592 U.S. at 325; see also id. at 317

(“A seizure requires the use of force with intent to

restrain.”). That critical element prevents the “common law

rule” from “transform[ing] every physical contact between a

government employee and a member of the public into a

Fourth Amendment seizure.” Id. at 317. The Court further

explained that, with respect to this element, “the appropriate

inquiry is whether the challenged conduct objectively

manifests an intent to restrain, for [the courts] rarely probe

the subjective motivations of police officers in the Fourth

26 PUENTE V. CITY OF PHOENIX

Amendment context.” Id. And just as an officer’s purely

subjective intent is not relevant, so too the inquiry does not

“depend on the subjective perceptions of the seized person.”

Id.

Plaintiffs do not contend that they were seized by a

“show of authority” to which they submitted, but only that

they were seized by an application of physical force with an

objective intent to restrain. We will assume, without

deciding, that the diffuse airborne transmission of chemical

irritants or intense flashes or sounds at a group of persons

may constitute an “application of physical force to the body

of [those] person[s].” Torres, 592 U.S. at 311; cf.

Headwaters Forest Def. v. County of Humboldt, 276 F.3d

1125, 1129–30 (9th Cir. 2002) (holding that the direct

application of pepper spray to the eyes of protesters using a

Q-tip was an application of force for Fourth Amendment

purposes); Edrei v. Maguire, 892 F.3d 525, 543 (2d Cir.

2018) (holding that deliberate use of sounds loud enough to

cause physical injury constitutes an application of force for

Fourth Amendment purposes). But even on that assumption,

Defendants’ use of such irritants to disperse the crowd from

the Free Speech Zone does not constitute a seizure because

there is no basis in the record for concluding that it was

undertaken with the necessary objective intent to restrain.

See Torres, 592 U.S. at 317–18.

Torres makes clear that an objective intent to “restrain,”

for Fourth Amendment purposes, refers to measures that

objectively aim to detain or confine the person, even if only

temporarily or even if only through a “mere touch.” 592

U.S. at 317–18; see also id. at 318 (“[B]rief seizures are

seizures all the same.”). In deriving the contours of its

understanding of a “seizure,” Torres relied on two common

law analogies—namely, the common law governing

PUENTE V. CITY OF PHOENIX 27

“arrests” (for seizures with probable cause) and the common

law of “false imprisonment” (for seizures without probable

cause). Id. at 311, 320. As the Court noted, “[t]he point of

an arrest” is “to take custody of a person to secure his

appearance at a proceeding.” Id. at 319 (emphasis added).

Likewise, “[t]he tort of false imprisonment”—which the

Court agreed was “the closest analogy to an arrest without

probable cause”—“required ‘confinement,’ such as ‘taking a

person into custody under an asserted legal authority.’” Id.

(emphasis added) (simplified) (quoting RESTATEMENT OF

TORTS §§ 35, 41 (1934)). Because an objective intent to

assert custody over a person, or to confine the person, was

required for any form of “arrest,” the requisite intent to

restrain is present only when the force applied objectively

aims at detaining or confining the person. It follows that an

application of force with an objective intent merely to

disperse or exclude persons from an area—and without any

measures objectively aimed at detaining or confining them

in the process—does not involve the necessary “intent to

restrain” that might give rise to a “seizure.”

The correctness of this conclusion is confirmed by

considering what a contrary conclusion would mean with

respect to the other form of “seizure” covered by the Fourth

Amendment (and not at issue in this case). As noted earlier,

the Court in Torres confirmed that a “‘seizure’ of a ‘person’

can take the form of physical force or a show of authority

that in some way restrains the liberty of the person.” Torres,

592 U.S. at 311 (emphasis added) (simplified). However, a

“show of authority that in some way restrains” a person does

not become a seizure “unless and until the [person] complies

with the demand.” Id. (emphasis added). If a mere objective

intent to disperse suffices to constitute an intent to “restrain,”

that would mean that a simple instruction to leave an area or

28 PUENTE V. CITY OF PHOENIX

certain premises would constitute a “seizure” if it is obeyed.

And that would mean, for example, that a public librarian

who merely instructs all the patrons to leave at closing time

has “seized” all of those who comply. We are aware of no

support for such an extravagant proposition. On the

contrary, the common law consistently treated orders of

“exclusion” from a place as not satisfying the “confinement”

requirement of the tort of false imprisonment. See

RESTATEMENT OF TORTS § 36 cmt. b (1934) (“[If] A

wrongfully prevents B from entering the United States[,] A

has not confined B, although B, in a sense, may be said to be

confined within the residue of the habitable world”); see also

RESTATEMENT (THIRD) OF TORTS: INTEN. TORTS TO

PERSONS § 8, Reporter’s Note on cmt. b (Tentative Draft No.

3, 2018) (stating that “exclusion from a place, even if

wrongful, does not ordinarily constitute confinement”).

We hasten to add that the analysis would be different if,

in the course of accomplishing such an intended dispersal or

exclusion, a person uses measures that objectively aim to

detain or confine another person. Thus, for example, the

public librarian who, in order to accomplish the dispersal or

exclusion of patrons who ignore a closing-time instruction

to leave, grabs them and then pushes or throws them out has

effectuated a “seizure.” The same would be true if the

librarian pressed the shoulder of overstaying patrons and

physically escorted them to the door. In both instances, a

seizure has occurred because the librarian has used measures

that objectively detained or confined the patrons’

movement—even if only temporarily—so that, under the

librarian’s control, the patrons will be moved out the door.

The fact that the librarian’s ultimate objective was to exclude

the patrons from the premises is not normally enough, by

PUENTE V. CITY OF PHOENIX 29

itself, to constitute an objective intent to restrain that gives

rise to a seizure.

With these principles in mind, we conclude that

Plaintiffs failed to produce sufficient evidence to establish

that, in the course of attempting to disperse and exclude class

members from the Free Speech Zone, the Defendant

officers’ application of force through the use of various

diffusely-applied airborne irritants involved measures that

objectively aimed at detaining or confining them, even

temporarily. As we have noted, and as the district court

emphasized, the district court did not certify a class with

respect to Plaintiffs’ claims that some persons were directly

physically impacted by projectiles, such as the physical

pepper balls. And the district court certified a class of

persons dispersed by exposure to chemical irritants only

because it concluded that “the very nature of the use of gas

is that it is not contained to a certain individual or a small

area” (emphasis added). Thus, in evaluating the class’s

excessive-force claims, we set aside any individualized

physical impacts to individual class members by projectiles

and focus only upon the class members’ generalized

exposure to chemical irritants that were objectively aimed at

moving them out of the area. But Plaintiffs have produced

no evidence that the chemical deployments at issue here

were undertaken with an objective intent to restrain, such as,

for example, by targeting an immobilizing level of force at

selected individuals. They also do not show that the

deployments somehow resulted in any submission to the

officers’ show of force, which arguably would have

constituted a seizure from a show of authority. See Torres,

592 U.S. at 311 (“An arrest requires either physical force . . .

or, where that is absent, submission to the assertion of

authority.” (simplified)). On the contrary, Plaintiffs

30 PUENTE V. CITY OF PHOENIX

expressly conceded in their opening brief that the

deployments at issue here “quickly dispersed all protesters

from the crowded Free-Speech Zone.” On this record, the

only reasonable conclusion is that the dispersal of the class

members was accomplished without measures objectively

aimed at detaining or confining them. There was thus no

objective intent to restrain and no seizure for Fourth

Amendment purposes.

In nonetheless arguing that the Defendant officers here

effectuated a seizure, Plaintiffs rely on a variety of clearly

distinguishable cases, all of which involved scenarios where

the defendant officers did detain or confine persons, even if

only briefly, or applied force objectively aimed at restraint

or confinement in the course of attempting to disperse them.

Cf. Torres, 592 U.S. at 323 (noting that a seizure can occur

even if the arrestee is “never actually brought within the

physical control of the party making an arrest” (citation

omitted)); id. (“[A] seizure is a single act, and not a

continuous fact.” (simplified)). For example, in

Headwaters, the officers repeatedly, directly, and

individually applied pepper spray with a Q-tip to the eyes of

a set of protesters who had linked themselves together using

“black bears,” i.e., metal devices that shielded the protesters’

arms from being separated unless the protesters

affirmatively unlocked the devices from the inside. 276 F.3d

at 1127–29. The aim was to cause irritation that was so

intolerable that the protesters would voluntarily release

themselves from the black bears, which some of them did.

Id. In addressing the protesters’ excessive-force claims, we

considered whether the officers’ use of pepper spray

constituted excessive force “to effect an arrest.” Id. at 1130

(emphasis added). We also emphasized that, at the time that

the officers applied the pepper spray, they already “had

PUENTE V. CITY OF PHOENIX 31

control over the protesters,” who were guarded over by the

officers. Id. A situation, such as Headwaters, in which

persons are already being detained under the control of

officers, and for the objective purpose of effectuating their

arrest, is obviously a “seizure” under Torres. Nothing

comparable is presented with respect to the claims of the

class members here.

Likewise, in Nelson v. City of Davis, 685 F.3d 867 (9th

Cir. 2012), campus police officers attempting to clear

partygoers out of an apartment complex launched

pepperballs directly at a particular group of students, and one

of the pepperballs “struck Nelson in the eye,” causing him to

“immediately collapse[] on the ground and f[a]ll into the

bushes where he writhed in pain for ten to fifteen minutes.”

Id. at 874. Nelson suffered permanent eye injuries requiring

“multiple surgeries.” Id. In rejecting the officers’ argument

that there was no seizure because they had not subjectively

intended to hit Nelson, we concluded that there was a seizure

because “[t]heir conduct was intentional, it was aimed

towards Nelson and his group, and it resulted in the

application of physical force to Nelson’s person as well as

the termination of his movement.” Id. at 877; see also

Sanderlin v. Dwyer, 116 F.4th 905, 917 n.2 (9th Cir. 2024)

(observing that the officers in Nelson “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”). The airborne

dissemination of irritants in this case, by contrast, involves

no such measures that were objectively aimed at restraining

the class members or that actually succeeded in the

“termination of [their] movement.” Nelson, 685 F.3d at 877;

cf. Sanderlin, 116 F.4th at 913 (finding an objective intent to

32 PUENTE V. CITY OF PHOENIX

restrain when the type of force applied was “chiefly

designed, intended, and used for the purpose of

incapacitat[ion],” and the force was indisputably “an act that

meaningfully interfere[d]” with the targets’ “freedom of

movement” (simplified)).

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

similarly distinguishable. In Felarca, the protesters engaged

in apparent misdemeanor violations when they “link[ed]

arms with other students” in order to block officers from

taking down tents that had been illegally set up on campus

grounds. Id. at 816, 818. But the officers did not use force

that was objectively merely aimed at dispersal. Rather, they

sought to accomplish the dispersal by the use of direct force

that objectively aimed at momentarily detaining the

plaintiffs within the officers’ control—specifically, the

officers physically struck or jabbed the plaintiffs with batons

and knocked one of them to the ground. Id. at 816. That sort

of conduct, which involves force objectively aimed at the

temporary restraint of the person, is more akin to our earlier

example of the librarian who accomplishes a dispersal by

throwing a patron out bodily or physically escorting them

out. Again, nothing comparable has been shown with

respect to the class claims in this case. 6 Cf. Torres 592 U.S.

at 317 (“While a mere touch can be enough for a seizure, the

amount of force remains pertinent in assessing the objective

intent to restrain.”).

6

Likewise unavailing is Plaintiffs’ reliance on Bennett v. City of

Eastpointe, 410 F.3d 810, 834 (6th Cir. 2005). There, the officer first

seized the plaintiffs by stopping them on their bicycles by “flash[ing] his

overhead lights,” and he then ordered and “escorted” them in crossing

the street. Id. at 833–34. This case does not involve any such directed

and specific control over a person’s movements following an initial

conceded seizure.

PUENTE V. CITY OF PHOENIX 33

Because the record shows that the Defendant officers’

use of airborne irritants here was not objectively aimed at

restraining the class members, even temporarily, there was

no “seizure” of the class members within the meaning of the

Fourth Amendment.

B

Having found that the class’s excessive-force claims

arose “outside the context of a seizure,” we evaluate those

claims under the Fourteenth Amendment “shocks-the-

conscience test.” County of Sacramento, 523 U.S. at 844,

854.

We have used “two tests” to determine “whether

officers’ conduct ‘shocks the conscience,’” and “[w]hich test

applies turns on whether the officers had time to deliberate

their conduct.” Ochoa v. City of Mesa, 26 F.4th 1050, 1056

(9th Cir. 2022). Where “the situation at issue evolved in a

time frame that permits the officer to deliberate before

acting,” then an officer’s use of force will be found to

“shock[] the conscience” if the officer acted with “deliberate

indifference” toward any resulting harm. Id. (simplified);

see also County of Sacramento, 523 U.S. at 849–53. If, on

the other hand, “the situation at issue escalated so quickly

that the officer had to make a snap judgment,” then the

officer’s use of force “shocks the conscience” only if the

officer acted with “a purpose to harm [the plaintiff] for

reasons unrelated to legitimate law enforcement objectives.”

Ochoa, 26 F.4th at 1056 (simplified); see also County of

Sacramento, 523 U.S. at 852–54.

We have stated that the word “deliberation,” for these

purposes, should not be interpreted in a “narrow, technical

sense.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir.

2010). Though a police officer may literally have “time to

34 PUENTE V. CITY OF PHOENIX

deliberate” while, e.g., chasing a suspect, we nevertheless

apply the “purpose to harm” standard whenever the

circumstances “force the officers to act quickly.” Id. In

other words, “actual deliberation is practical” only when

officials have “time to make unhurried judgments, [with] the

chance for repeated reflection, largely uncomplicated by the

pulls of competing obligations.” County of Sacramento, 523

U.S. at 851, 853 (emphasis added). Thus, for example, we

have applied the “purpose to harm” standard in cases

involving the active use of force during “sudden police

chases” or “prison riot[s],” where officers “have obligations

that tend to tug against each other,” which they must balance

“in haste, under pressure, and frequently without the luxury

of a second chance.” Id. at 853 (citation omitted); see also

Porter v. Osborn, 546 F.3d 1131, 1139 (9th Cir. 2008)

(“[W]hen an officer encounters fast paced circumstances

presenting competing public safety obligations, the purpose

to harm standard must apply.”).

We conclude that the situation in this case is one that

escalated quickly, requiring officers to respond promptly

without “the luxury . . . of having time to make unhurried

judgments.” County of Sacramento, 523 U.S. at 853;

Sanderlin, 116 F.4th at 914 (finding that “officers obviously

have a legitimate safety interest in controlling a mass of

people” and that such circumstances can force “split-second

judgments” (simplified)). It is therefore governed by the

“purpose to harm” standard. Although the situation in the

Free Speech Zone may not have risen to the level of an actual

“riot,” see County of Sacramento, 523 U.S. at 852–53

(referring to a “prison riot” as an archetypal situation in

which “a much higher standard of fault than deliberate

indifference has to be shown for officer liability”), it

presented significant public safety concerns that warranted

PUENTE V. CITY OF PHOENIX 35

prompt action. It is undisputed that the decision to disperse

the crowd in this case was made over the course of three

minutes between 8:34 and 8:36 PM, after members of the

crowd had thrown at officers both a canister emitting an

unknown gas and a pyrotechnic device. Moreover, in the

minutes immediately preceding this decision, the crowd had

become increasingly unruly, with suspected Antifa members

attempting to breach the fence separating the Free Speech

Zone from the Public Safety Zone. Persons in the crowd

were also throwing objects with increasing frequency,

despite PPD’s more targeted deployment of pepper balls to

deter such behavior. On top of that, these events occurred

contemporaneously with the President of the United States

departing the immediate vicinity. We conclude that, based

on the undisputed facts, the rapidly deteriorating situation

had evolved into one requiring quick judgments under

pressure, and that the “purpose to harm” standard therefore

governs.

Applying that standard, we conclude that there is no

triable issue of any such purpose to harm here. Plaintiffs

point to “nothing in the record suggesting that the officers

had an improper purpose to harm” at the time they decided

to employ chemical irritants and flash-bang grenades to

disperse the crowd. See Ochoa, 26 F.4th at 1058. The level

of force here is not so gratuitous as to give rise to a

reasonable inference that it was applied for the purpose of

inflicting harm rather than for the “legitimate law

enforcement objectives” of “self-protection, and protection

of the public.” Id. at 1056 (citations omitted). Any such

inference is all the more unreasonable given the undisputed

record evidence about the officers’ overall restrained

management of the protest prior to the decision to clear the

Free Speech Zone. Plaintiffs argue that a contrary inference

36 PUENTE V. CITY OF PHOENIX

is nonetheless warranted in light of the fact that, sometime

after the protest, an unknown person arranged for the

creation of a commemorative coin that mockingly displayed

a protester being hit by a munition, and several PPD officers

possessed or distributed the coins. But such later-occurring

events, even if distasteful, have “minimal relevance”

because they “took place after the officers” applied the force

in question. Id. at 1058 (reaching a similar conclusion about

officers’ alleged “cheering and laughing,” after the fact,

about their use of force).

Because the Fourteenth Amendment’s “purpose to

harm” standard (rather than the Fourth Amendment’s

reasonableness standard) governs the Defendant officers’

use of chemical irritants and flash-bangs against the class

members, and because there is no triable issue of such a

purpose to harm, the district court correctly granted

summary judgment against the class on its claims of

excessive force in violation of the Fourth and Fourteenth

Amendments.

III

We turn next to the individual excessive-force claims

asserted by Plaintiffs Yedlin, Travis, and Guillen.

These claims are presented to us in the context of the

individual Defendants’ interlocutory appeal of the denial of

qualified immunity to them on these claims. “Our de novo

review of a grant [or denial] of summary judgment based on

qualified immunity involves two distinct steps.” Sandoval

v. Las Vegas Metro. Police Dep’t, 756 F.3d 1154, 1160 (9th

Cir. 2014). Specifically, government officials are entitled to

qualified immunity “unless (1) they violated a federal

statutory or constitutional right, and (2) the unlawfulness of

their conduct was ‘clearly established at the time.’” District

PUENTE V. CITY OF PHOENIX 37

of Columbia v. Wesby, 583 U.S. 48, 62–63 (2018) (citation

omitted). “A right is clearly established when it is

‘sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.’” Rivas-

Villegas v. Cortesluna, 595 U.S. 1, 5 (2021) (quoting

Mullenix v. Luna, 577 U.S. 7, 11 (2015)). “We may address

these two prongs in either order.” Sandoval, 756 F.3d at

1160 (citing Pearson v. Callahan, 555 U.S. 223, 236

(2009)).

To the extent that these Plaintiffs’ individual excessive-

force claims overlap with the class’s claims, our earlier

analysis governs as well, and those claims fail at the first

prong of the qualified immunity analysis. However, each of

these three Plaintiffs’ situations differs from the class claims

in that each of them individually experienced a direct

physical impact from a munition fired by a PPD officer. Our

earlier analysis finding no “seizure” with respect to the class

claims therefore does not carry over to these Plaintiffs’

individual claims based on such physical impacts. However,

we need not resolve whether these individual Plaintiffs

experienced a temporary “seizure” when they were directly

impacted by physical objects that were potentially

momentarily disabling. See Nelson, 685 F.3d at 877. Even

assuming that they were, we conclude that, based on the

undisputed facts, the Defendant officers were entitled to

qualified immunity because they acted reasonably under the

circumstances or violated no clearly established law.

A

We first address Yedlin’s individual excessive-force

claim.

As noted earlier, around 8:32 PM on August 22, 2017,

members of the crowd began aggressively pushing the fence

38 PUENTE V. CITY OF PHOENIX

separating the Free Speech Zone from the Public Safety

Zone in an apparent attempt to breach it. Plaintiff Ira Yedlin

was among the members of the crowd shaking the fence.

Defendant Moore ordered Defendant officers to fire pepper

balls at the ground directly in front of the group, which

caused the group to back away. Grenadiers fired additional

pepper balls at individuals who did not disperse. Yedlin,

who had initially retreated after the first volley, resumed

shaking the fence within 11 seconds of his retreat, and at that

point he was struck several times by pepper balls—in the

face, lower back, and in three places on the legs.

“[W]hether an officer has used excessive force” in

violation of the Fourth Amendment’s objective

reasonableness standard “‘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). We also consider

“the availability of less intrusive alternatives to the force

employed and whether warnings were given.” Felarca, 891

F.3d at 817. Whether there is an immediate threat to physical

safety is generally the most important consideration. Young

v. County of Los Angeles, 655 F.3d 1156, 1163 (9th Cir.

2011). “The ‘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.”

Graham, 490 U.S. at 396. The reasonableness analysis must

further “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

PUENTE V. CITY OF PHOENIX 39

particular situation.” Id. at 396–97. We have emphasized

that the “ultimate inquiry” always remains “whether the

totality of the circumstances justifies a particular sort of

seizure.” Young, 655 F.3d at 1163 (simplified).

We have previously described as “significant” the risk of

physical harm from the physical impact of pepper balls.

Nelson, 685 F.3d at 879. In Nelson, the “actual harm

caused” was also quite serious, because Nelson was

“rendered immobile,” experienced “temporary blindness,”

suffered “permanent loss of visual acuity,” and was “forced

to endure multiple surgeries.” Id. at 875, 879. Yedlin’s

actual injuries, which consisted predominantly of bruising,

were not as serious as those in Nelson. Accordingly, the

district court properly characterized the resulting physical

force used against Yedlin as “intermediate.”

Defendants do not contend that Yedlin was committing

a crime at the time he was struck by the pepper balls, and the

record does not disclose that there was any attempt to

actually arrest Yedlin or that he resisted any such arrest. As

a result, this is not a situation in which the use of force can

be justified by either the “severity of the crime at issue” or

the need to overcome resistance to arrest. Graham, 490 U.S.

at 396. Rather, Defendants’ asserted justification for the

particular deployment of force that struck Yedlin was “the

severity of the security problem at issue,” Kingsley v.

Hendrickson, 576 U.S. 389, 397 (2015), and the immediate

threat that Yedlin’s actions created in that regard. The PPD

had a very significant interest in avoiding any breach of the

security fence separating the Free Speech Zone from the

Public Safety Zone, because that would present an

immediate and substantial threat to the safety of the officers,

nearby members of the public, and potentially even the

President’s motorcade. By returning and vigorously shaking

40 PUENTE V. CITY OF PHOENIX

the fence just seconds after the PPD had repelled an apparent

attempt to breach it, Yedlin posed an immediate threat to the

PPD’s ability to maintain this boundary. Cf. Nelson, 685

F.3d at 880–81 (noting that police officers faced no

immediate security concerns at the time they fired pepper

balls at Nelson). Moreover, although no verbal warnings

were given, see Felarca, 891 F.3d at 817, that carries little

weight here given that Yedlin returned to the fence after a

prior round of pepper balls had just been fired to the ground

to prevent what the officers reasonably perceived to be an

attempt by suspected Antifa members to breach the fence.

Yedlin was thereby actually on notice of such a potential use

of force even without verbal warnings.

Examining the totality of the circumstances, we conclude

that, as a matter of law, Defendants’ use of intermediate

force against Yedlin was a reasonable response that was

“commensurate[]” to the PPD’s strong interest in avoiding

any breach of the fence. Young, 655 F.3d at 1163; see also

Nelson, 685 F.3d at 882 (“[O]fficers ‘are not required to use

the least intrusive degree of force possible’” (citation

omitted)). Consequently, Yedlin’s Fourth and Fourteenth

Amendment rights were not violated. We therefore

conclude that the relevant individual Defendants were

entitled to qualified immunity on Yedlin’s claim and that the

district court erred in concluding otherwise.

B

We next address the individual excessive-force claim

asserted by Travis.

After the PPD made several attempts to disperse the

crowd and announced an unlawful assembly from a

helicopter above the Free Speech Zone, at about 9:02 PM a

police vehicle arrived at one corner of the Free Speech Zone

PUENTE V. CITY OF PHOENIX 41

and repeatedly communicated further unlawful assembly

announcements. Some individuals remained on Second

Street, including Travis. PPD then formed a “skirmish line”

and moved north on Second Street, using pepper balls to

disperse the remaining individuals, particularly those that

PPD officers perceived as aggressive.

Undisputed video evidence and Travis’s own testimony

show that Travis intentionally approached the moving

skirmish line in order to “get a shot of [it]” with her camera.

Travis positioned herself “right in front” of the skirmish line,

at a distance of “about ten to [fifteen] feet,” as it marched

forward. The video evidence demonstrates that Travis

moved toward the skirmish line even after officers had

begun deploying chemical spray at the crowd in her

immediate vicinity. After taking her photos, Travis turned

and began to slowly walk away from the police line, at which

point police fired a weapon toward her at close range, the

force of which grazed her shoulder, knocked her sunglasses

off of the top of her head, and caused her to fall over.

Viewing the record in the light most favorable to Travis, she

was targeted with a “muzzle blast”—a burst of chemical

powder with irritating properties—as well as pepper spray

and an unknown projectile. Travis walked home shortly

thereafter, which she was able to do unassisted. Travis was

left with a burning sensation in her eyes for roughly fifteen

minutes, a temporary cough, and bruising on her backside

that caused her to miss a day of work.

We conclude that Defendants’ use of force against Travis

was objectively reasonable. As with Yedlin, Travis’s actual

injuries were nowhere near as serious as those in Nelson, and

we view the force deployed against her as intermediate. See

Nelson, 685 F.3d at 875, 879. Like Yedlin, Travis was not

being arrested and was not resisting arrest. However, unlike

42 PUENTE V. CITY OF PHOENIX

Yedlin’s situation, Travis was struck after she remained in

the area in clear disregard of the repeated announcement that

an unlawful assembly had been declared and after multiple

orders to disperse had been issued. Moreover, Travis chose

to place herself directly in front of the advancing skirmish

line, and in doing so, she placed herself between the officers

and near the remaining crowd behind her, which was

continually throwing objects at the officers. That Travis

chose to place herself in that situation does not diminish the

PPD’s strong interests in addressing the lawlessness behind

her, in maintaining the advance of the skirmish line, and in

enforcing the unlawful-assembly order. Viewing all of the

circumstances in context, the repeated applications of force

made by the advancing officers, including the particular

blast that impacted Travis, were reasonable measures to

accomplish the PPD’s substantial interests in public safety.

See Forrester v. City of San Diego, 25 F.3d 804, 807–08 (9th

Cir. 1994) (noting the distinctive public safety interests

involved with responding to organized and concerted

lawlessness).

But even if we were to assume that the Defendant

officers violated Travis’s Fourth Amendment rights, they are

nevertheless entitled to qualified immunity because the

relevant right asserted by Travis was not clearly established.

For a right to have been “clearly established,” it must have

had a “sufficiently clear foundation” in precedent at the time

of the challenged conduct. Wesby, 583 U.S. at 63. This

typically means that then-existing precedent must have

“clearly prohibit[ed] the officer’s conduct in the particular

circumstances before him,” id., but general rules may suffice

to clearly establish the illegality of an officer’s action in an

“obvious case,” Kisela, 584 U.S. at 105 (citation omitted).

Here, Plaintiffs do not cite any case that could have “clearly

PUENTE V. CITY OF PHOENIX 43

establish[ed]” that Defendants’ use of force against Travis

was objectively unreasonable. The closest case is Nelson,

which similarly dealt with the use of projectile chemical

tools against an unruly group. But the defendants in Nelson

deployed force against a group of college partiers at an

apartment complex who had already been effectively

confined by police and were peacefully awaiting instructions

on how and when they could leave. See Nelson, 685 F.3d at

872–74. Furthermore, there was no objective indication of

any “threatening or dangerous behavior.” Id. at 880–81.

These differences, among others, make clear that Nelson “is

materially distinguishable” and thus does not clearly

establish the law governing this case. Rivas-Villegas, 595

U.S. at 6. And this is plainly not an “obvious” case in which

every reasonable officer would have recognized that the

Defendant officers’ conduct was unlawful.

For these reasons, we conclude that the district court

erred in failing to grant summary judgment, on qualified

immunity grounds, to the relevant individual Defendants

with respect to Travis’s excessive-force claims.

C

We turn next to Guillen’s excessive-force claim.

The use of force against Plaintiff Guillen occurred at the

intersection of Monroe Street and Third Street—the eastern

edge of the Free Speech Zone. At the time, protesters in the

area directly across from the Phoenix Convention Center had

been dispersed, but many protesters remained in the larger

area. Although Defendant Moore had already decided to

declare an unlawful assembly at this time, PPD had not yet

begun broadcasting that order to the protesters. Prior to

escalating their use of force, the PPD officers across from

Guillen’s section of the Free Speech Zone deployed inert

44 PUENTE V. CITY OF PHOENIX

smoke on the ground in front of the police fence. Guillen

expressed confusion over the officers’ intention, although

her companion stated that he believed the PPD wanted the

protesters to “go home.” Uncontroverted video evidence

shows that, at 8:50 PM, an unidentified object was fired into

the crowd of protesters from the direction of the Public

Safety Zone. This prompted most of the protesters present

at the intersection—including Guillen—to walk northward

along Third Street, away from the police fence. She was hit

by a projectile of some kind in her stomach and upper hip,

causing her to bleed. Video shows that Guillen was able to

walk with some assistance from her friend. According to

Guillen, this wound caused her severe pain in the immediate

aftermath of the protest, as well as for several days

afterward. Additionally, Guillen claims that the range of

movement in her leg has not fully returned, and that she now

requires the use of an inhaler.

Viewing the record in the light most favorable to Guillen,

the PPD’s use of force against her constituted a seizure, and

we conclude that there is a triable issue as to whether that

use of force was objectively unreasonable. There are a

number of features surrounding the particular use of force

that struck Guillen that distinguish it from the uses of force

against Yedlin and Travis. In particular, in contrast to

Travis’s situation, the video evidence does not show any

obviously unlawful or threatening conduct occurring in

Guillen’s immediate vicinity prior to the relevant

Defendants’ use of force. Nor did Guillen engage in any

personal conduct, as Yedlin had done, that itself presented a

risk to public safety. Guillen was also not disobeying any

orders—at the time, no announcement of an unlawful

assembly had been made, and the video evidence indicates

that she was confused as to what she was supposed to do.

PUENTE V. CITY OF PHOENIX 45

But in the absence of the sort of factors we noted with respect

to Yedlin and Travis, we conclude that, even if Guillen had

“heard and was in non-compliance with the officers’ orders

to disperse, this single act of non-compliance, without any

attempt to threaten the officers or place them at risk,” would

not make reasonable the particular use of chemical

projectiles against her, causing the moderately serious

injuries she experienced. See Nelson, 685 F.3d at 882.

Nonetheless, we conclude that Nelson is “materially

distinguishable” in several respects and that it therefore did

not “clearly establish” that the relevant Defendants’ actions

violated Guillen’s rights. First, Nelson emphasized the

overall “absence of exigency involved” in the officers’

dispersal of the gathering at issue in that case. 685 F.3d at

880. Though the officers in that case “plainly had an interest

in clearing [an] apartment complex” of rowdy college

partiers once the owner of the complex requested it, we

found that “the desire to do so quickly, in the absence of any

actual exigency, [could not] legitimize the application of

force when it is not otherwise justified.” Id. Thus, Nelson

did not involve the larger exigent public safety concerns that

are present in the overall context of this case. Second, we

emphasized in Nelson that Nelson was part of a group of

“students gathered with [him] in the breezeway” of the

apartment, which was a separate and “very narrow and

confined space,” and that several of the “defendant officers

stated in their depositions that they did not see anyone in

Nelson’s group throwing bottles or engaging in any other

threatening or dangerous behavior.” Id. at 873, 880.

Although there was no apparent misconduct in Guillen’s

immediate area at the time that she was struck, she was not

in a discretely separate zone from those down the block in

the Free Speech Zone who were still engaged in such acts.

46 PUENTE V. CITY OF PHOENIX

Moreover, the officers were reasonably concerned about the

possibility of troublemakers “circulat[ing] anonymously

within the larger crowd of protesters.” Third, although (like

Nelson) no verbal order to disperse had been given at that

point, there had been (unlike Nelson) numerous objective

indicia that the police were trying to clear the area.

Because no precedent “‘squarely governs’ the specific

facts at issue” and because this is not an “obvious case,”

Kisela, 584 U.S. at 104–05 (citations omitted), we conclude

that the relevant Defendants are entitled to qualified

immunity with respect to the force used against Guillen.

Accordingly, on that basis, we reverse the district court’s

denial of summary judgment to the relevant individual

Defendants.

IV

We turn next to the First Amendment claims, which are

asserted by all Plaintiffs, on their own behalf and on behalf

of the classes.

A

We have stated that “protests or assemblies cannot be

dispersed on the ground that they are unlawful unless they

‘are violent or pose a clear and present danger of imminent

violence’ or they are violating some other law in the

process.” Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir.

1996) (citation omitted); see also id. (stating that “enjoining

or preventing First Amendment activities before

demonstrators have acted illegally or before the

demonstration poses a clear and present danger is

presumptively a First Amendment violation”). Plaintiffs

contend that the PPD’s dispersal of the class members

PUENTE V. CITY OF PHOENIX 47

violated the First Amendment because, in their view, the

requisite “clear and present danger” was not present.

Whether a particular situation presents a clear and

present danger of imminent lawlessness must be evaluated

under an objective standard, rather than based on the

subjective apprehensions of the officers. Johnson v. Perry,

859 F.3d 156, 171 (2d Cir. 2017) (stating that “[f]ear of

serious injury cannot alone justify suppression of free speech

and assembly” and that “there must be reasonable ground to

fear that serious evil will result” (emphasis omitted) (citation

omitted)). Moreover, in assessing whether a sufficient clear

and present danger justifies dispersal of a crowd, “[i]t is the

tenor of the demonstration as a whole that determines

whether the police may intervene; and if it is substantially

infected with violence or obstruction the police may act to

control it as a unit.” Washington Mobilization Comm. v.

Cullinane, 566 F.2d 107, 120 (D.C. Cir. 1977) (citing

Grayned v. City of Rockford, 408 U.S. 104, 16 (1972)).

Accordingly, the question here is whether the conduct of the

persons in the Free Speech Zone, taken as a whole, created

objectively reasonable grounds to conclude that there was a

“clear and present danger of riot, disorder, interference with

traffic upon the public streets, or other immediate threat to

public safety, peace, or order.” Cantwell v. Connecticut, 310

U.S. 296, 308 (1940); see also Grayned, 408 U.S. at 116

(“[W]here demonstrations turn violent, they lose their

protected quality as expression under the First

Amendment.”).

We conclude that, based on the undisputed facts, there

were sufficient objectively reasonable grounds to establish

the requisite “clear and present danger” of an “immediate

threat to public safety, peace, or order.” The decision that

the assembly had become unlawful was made by Moore at

48 PUENTE V. CITY OF PHOENIX

some point during the minutes of 8:34 to 8:36 PM, after

unknown persons in the crowd had thrown into the Public

Safety Zone a canister emitting an unidentified gas as well

as a pyrotechnic device. By that point, the PPD had already

repelled, through the use of chemical munitions, one

organized attempt to breach the police fence that separated

protesters from the Public Safety Zone. Despite that limited

use of force, it is undisputed that the suspected Antifa

members who had attempted to breach the Public Safety

Zone then proceeded to “circulate anonymously within the

larger crowd of protesters,” followed by a significant

escalation of “objects being thrown from the crowd.” It was

only after this escalation occurred and, in particular, after the

gas canister and pyrotechnic device were thrown, that the

PPD began to disperse the protesters from the Free Speech

Zone. Whatever the outer boundaries of the “clear and

present danger” test may be, we think that circumstances

involving the use of unidentified gas and pyrotechnic

devices by agitators dispersed throughout a crowd,

escalating violence toward the officers, an organized attempt

to breach a police line, and the exigent concern of

presidential security, falls within it.

Accordingly, we hold that Defendants were properly

granted summary judgment with respect to Plaintiffs’ First

Amendment claim that there was an insufficient “clear and

present danger” to justify dispersal of the Free Speech Zone.

But even if we assumed that there was a triable issue on that

score, we conclude that Plaintiffs have failed to identify any

precedent that would clearly establish that Defendants

violated Plaintiffs’ rights in the context that they confronted.

See Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014)

(stating that, for a right to be “clearly established,” the

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

PUENTE V. CITY OF PHOENIX 49

any reasonable official in the defendant’s shoes would have

understood that he was violating it”). Accordingly, the

individual Defendants are also entitled to qualified immunity

on this claim.

B

It is not entirely clear from Plaintiffs’ briefs whether

Plaintiffs are contending that a First Amendment retaliation

claim may properly be asserted in the crowd-dispersal

context in addition to a clear-and-present-danger claim or

only as an alternative to it. There are strong arguments that

a conventional First Amendment retaliation framework, with

its focus on subjective causation, is a poor fit for the crowd-

dispersal context, because it adds little to the objective clear-

and-present-danger analysis and will often raise

“particularly difficult” causation questions. Nieves v.

Bartlett, 587 U.S. 391, 402 (2019) (relying upon similar

concerns in holding that First Amendment retaliatory arrest

claims require a showing of a lack of objective probable

cause). But we need not resolve any such issues because,

even assuming that conventional First Amendment

retaliation principles may also be applied here, we conclude

that there is no triable issue that the dispersal of the crowd

was undertaken with retaliatory intent.

As the district court correctly concluded, the undisputed

facts do not support a reasonable inference of retaliatory

intent. The PPD worked in advance to coordinate with

protesters in order to ensure that the protests were conducted

peacefully, and the protests went on without any serious

incident for several hours. When problems then began to

arise, the PPD initially responded with more limited

measures and only decided to disperse the crowd when the

requisite objective clear and present danger had

50 PUENTE V. CITY OF PHOENIX

materialized. On these facts, no reasonable jury could

conclude that the dispersal was in fact subjectively

motivated by antipathy to Plaintiffs’ political speech.

Plaintiffs again point to the after-the-fact distribution,

among some officers, of a commemorative coin that

mockingly displayed a protester being hit in the groin by a

munition and that bore the politicized inscription “Making

America great again one nut at a time.” But such later-

occurring conduct by individual officers, even if distasteful

or immature, does not provide a sufficient basis for

reasonably inferring, in the context of all of the

circumstances of this case, that the actions taken in

immediate response to a clear and present danger were

instead undertaken because of hostility to the protesters’

views. Cf. Ochoa, 26 F.4th at 1058. We affirm the district

court’s grant of summary judgment on this claim.

C

Plaintiffs also argue that their First Amendment rights

were violated because Defendants failed to issue a verbal

dispersal order before beginning to try to disperse the crowd.

We disagree.

Plaintiffs contend that the Second Circuit’s decision in

Jones v. Parmley, 465 F.3d 46 (2d Cir. 2006), supports their

view that the First Amendment always requires a verbal

dispersal order. That is wrong. Jones held that such a verbal

order was required in the context of a “peaceful protest” in

which, without warning and in the absence of a clear and

present danger, the police “charged into the crowd, arresting

protesters indiscriminately.” Id. at 60 & n.5. Indeed, Jones

made clear in a footnote that it did not adopt any per se rule.

See id. at 60 n.5 (stating that the court “ha[s] no occasion to

determine whether police would be permitted to disperse

PUENTE V. CITY OF PHOENIX 51

without warning a crowd more akin to a mob than the

peaceful protest plaintiffs describe”); see also Garcia v.

Does, 779 F.3d 84, 94 n.11 (2d Cir. 2015) (rejecting the view

that Jones establishes a per se rule of advance notice). We

reject Plaintiffs’ claim that the First Amendment required a

verbal dispersal order before officers could begin

undertaking measures to clear the Free Speech Zone. 7

V

We affirm the district court’s summary judgment to

Defendant Police Chief Williams. Plaintiffs contend that, as

a supervisor, she was liable for the individual officers’

violations of their constitutional rights. To establish such

liability, Plaintiffs must demonstrate that Williams either

“participated in or directed the violations, or knew of the

violations of subordinates and failed to act to prevent them.”

Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d

1175, 1182 (9th Cir. 2007) (simplified). But there can be no

such supervisorial liability in the absence of an underlying

constitutional violation. Moreover, we have held that, when

the subordinate officers have not been shown to have

“violated a clearly established right, it necessarily follows

that [their police supervisors] cannot have violated a clearly

established right by supervising” those officers. Felarca,

891 F.3d at 823. Because we have concluded that all of

Plaintiffs’ claims either fail or did not involve the violation

7

We express no view as to whether other provisions of the Constitution

might require advance notice before undertaking steps such as, for

example, individual arrests for failing to disperse. Cf. Barham v.

Ramsey, 434 F.3d 565, 575–76 (D.C. Cir. 2006) (stating that the “Fourth

Amendment” requires that, in clearing an “unruly demonstration,”

officers must “invok[e] a valid legal mechanism for clearing the area and

then provid[e] an opportunity for affected persons to follow an order to

disperse”).

52 PUENTE V. CITY OF PHOENIX

of a clearly established right, Plaintiffs’ claims of

supervisorial liability necessarily fail. On that basis, we

affirm the district court’s grant of summary judgment to

Williams. 8

VI

Lastly, we address Plaintiffs’ claims of municipal

liability against the City of Phoenix under 42 U.S.C. § 1983.

A municipality “may be liable in a §1983 action . . .

when the plaintiff proves that the municipality caused the

plaintiff’s injury.” Barone v. City of Springfield, Oregon,

902 F.3d 1091, 1106–07 (9th Cir. 2018) (citing Monell, 436

U.S. at 691). Municipal liability will not result from every

wrongful act committed by an employee, but only those

which occur pursuant to “official policy . . . for which the

municipality is actually responsible.” Pembaur v. City of

Cincinnati, 475 U.S. 469, 479 (1986) (simplified). “Official

policy” includes “decisions of a government’s lawmakers,

the acts of its policymaking officials, and practices so

persistent and widespread as to practically have the force of

law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). A

municipality may also be liable for “decision[s] not to train

certain employees about their legal duty to avoid violating

citizens’ rights,” but such liability arises only where the

failure to train “amounts to deliberate indifference to the

rights of persons with whom the untrained employees come

into contact.” Id. (quoting City of Canton, Ohio v. Harris,

489 U.S. 378, 388 (1989)) (simplified).

On appeal, Plaintiffs rely on two theories of municipal

liability: (1) a final policymaker caused the allegedly

8

For the same reason, the district court erred in holding that Moore and

McBride could be held liable under a supervisorial liability theory. See

supra note 4.

PUENTE V. CITY OF PHOENIX 53

unconstitutional acts, and (2) the city’s failure to train its

officers amounted to “deliberate indifference.” Viewing the

record in the light most favorable to Plaintiffs, we agree with

the district court that there is no genuine issue of material

fact that could support either of these arguments.

A

A municipality may be liable for constitutional

violations if the municipal employee who caused the

plaintiff’s constitutional injury is an official with “final

policymaking authority.” City of St. Louis v. Praprotnik,

485 U.S. 112, 123 (1988). Plaintiffs argue that the district

court erred when it determined that the City Council and City

Manager—but not Defendant Chief Williams—were the

relevant final policymakers for the City of Phoenix. We

need not resolve this issue. As explained above, Plaintiffs

have raised a triable issue as to only one constitutional

violation—namely, the individual excessive-force claim

asserted by Guillen. Even assuming that Chief Williams had

final policymaking authority, Plaintiffs have failed to raise a

triable issue that Chief Williams caused or ratified the use

of excessive force against Guillen. See Chudacoff v.

University Med. Ctr. of S. Nev., 649 F.3d 1143, 1151 (9th

Cir. 2011) (stating that, to establish Monell liability based on

the actions of “an individual with ‘final policymaking

authority,’” the plaintiff must show that the constitutional

“injury was caused or ratified” by that person (citation

omitted)).

In arguing that Chief Williams’s conduct suffices to

establish municipal liability, Plaintiffs emphasize that she

“was the final policymaker for law-enforcement matters

related to President Trump’s rally” and that she oversaw the

preparations for the event and “personally briefed the TRU

54 PUENTE V. CITY OF PHOENIX

squad before they went out.” But these contentions, at best,

are directed at Chief Williams’s asserted role in the overall

preparation for, and management of, the event. These points

might conceivably have had some persuasive force if we had

found triable violations of the class members’ constitutional

rights in the course of the event, but we have rejected all of

the classes’ claims on the merits. What we have found,

instead, is a single specific use of force against Guillen that,

under the distinctive circumstances of her situation, a

reasonable jury could find to be excessive. Even assuming

arguendo that Chief Williams established municipal policy

for the overall management of the event, Plaintiffs have

proffered no evidence that Chief Williams caused the

situation-specific use of excessive force against Guillen. See

Board of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 404

(1997) (stating that “it is not enough for a § 1983 plaintiff

merely to identify conduct properly attributable to the

municipality” and that “[t]he plaintiff must also demonstrate

that, through its deliberate conduct, the municipality was the

‘moving force’ behind the injury alleged” and that this

requires a showing of “the requisite degree of culpability” as

well as “a direct causal link between the municipal action

and the deprivation of federal rights”). 9

Plaintiffs alternatively argue that Chief Williams

subsequently “ratified PPD’s conduct” in her “post-rally

9

We reject Plaintiffs’ argument that municipal liability here can rest on

the theory that Chief Williams delegated her asserted final policymaking

authority to Moore, who then caused the use of excessive force against

Guillen. At most, Plaintiffs have established that Moore exercised

discretion to act in the field pursuant to municipal policies established by

others, which we have held is not sufficient to establish a delegation of

municipal policymaking authority for purposes of municipal liability

under § 1983. See Christie v. Iopa, 176 F.3d 1231, 1236–37 (9th Cir.

1999); Tevino v. Gates, 99 F.3d 911, 920 (9th Cir. 1996).

PUENTE V. CITY OF PHOENIX 55

public statements.” “To show ratification, a plaintiff must

show that the ‘authorized policymakers approve a

subordinate’s decision and the basis for it.’” Lytle v. Carl,

382 F.3d 978, 987 (9th Cir. 2004) (citation omitted). Here,

Plaintiffs have failed to present sufficient evidence that

Chief Williams knew and approved of the particular use of

force against Guillen, much less that she endorsed the “basis

for it.” Id. Plaintiffs have instead presented evidence that

Chief Williams arguably ratified the overall management of

the event, which we have held has not been shown to have

been constitutionally deficient.

B

As to Plaintiffs’ “failure to train” theory, Plaintiffs failed

to present sufficient evidence to allow a reasonable trier of

fact to find that the City of Phoenix was “deliberately

indifferent” to Plaintiffs’ constitutional rights.

A municipality incurs liability for a failure to train when

“the need for more or different training is so obvious, and

the inadequacy so likely to result in the violation of

constitutional rights, that the policymakers of the city can

reasonably be said to have been deliberately indifferent to

the need.” City of Canton, 489 U.S. at 390. “Deliberate

indifference” is “a stringent standard of fault, requiring proof

that a municipal actor disregarded a known or obvious

consequence of his action.” Hyun Ju Park v. City & County

of Honolulu, 952 F.3d 1136, 1141 (9th Cir. 2020) (quoting

Board of County Comm’rs of Bryan County, Okl. v. Brown,

520 U.S. 397, 410 (1997)). To succeed on a “failure to train”

theory of Monell liability, it is thus “ordinarily necessary”

for a plaintiff to demonstrate “[a] pattern of similar

constitutional violations by untrained employees.” Connick,

563 U.S. at 62. However, the Court has left open the

56 PUENTE V. CITY OF PHOENIX

possibility that “a single violation of federal rights,

accompanied by a showing that the municipality has failed

to train its employees to handle recurring situations

presenting an obvious potential for such a violation, could

trigger municipal liability.” Brown, 520 U.S. at 409.

Plaintiffs base their “failure to train” argument on the

assertion that, although the City of Phoenix extensively

trains PPD officers “on how to use” chemical agents to

disperse protesters, it failed to properly teach them “whether

or when” to do so. As previously discussed, we have found

no triable issue as to whether Defendants committed a

constitutional violation in most claims in this case, but we

disposed of Guillen’s excessive-force claim solely based on

the “clearly established” prong of qualified immunity.

Given that there therefore is a triable issue only as to whether

Defendants caused Guillen to suffer a constitutional injury,

Plaintiffs’ “failure to train” claim rests on showing that

Guillen’s injury in particular was the obvious result of the

allegedly inadequate training. See Tsao v. Desert Palace,

Inc., 698 F.3d 1128, 1145 (9th Cir. 2012). But Plaintiffs

have failed to show that her constitutional injury was such

an obvious consequence that PPD’s failure to more

thoroughly train its officers on the use of chemical agents

amounted to “deliberate indifference” toward her rights.

Plaintiffs do not provide any basis to dispute the record

evidence showing that the PPD did train its officers about

“whether or when” to deploy chemical agents. The record,

including portions cited by Plaintiffs, show that PPD officers

received training on the responsibility to protect protesters’

“constitutional rights to assemble and exercise free speech”

and were told that chemical agents should only be deployed

when “absolutely necessary” and “other passive means have

failed to restore order.” Furthermore, the record

PUENTE V. CITY OF PHOENIX 57

demonstrates that the PPD instructed its commanders to

issue dispersal warnings to the crowd “with significant

amplification and repetition as necessary to be heard by the

entire crowd” “if time and circumstances permit,” prior to

the deployment of chemical agents. The PPD’s training

materials describe even the indirect use of pepper balls in

particular as justified only “[t]o prevent the possibility of

injury to an officer or another person,” or to “subdue a

person who is threatening or attempting physical harm to self

or another, resisting arrest, RIOTING, or interfering with an

arrest.”

Rather than cite any “instance[] of similar unlawful

conduct” prior to the protest—let alone a pattern—that might

provide the City with notice that its existing training

program was inadequate, Plaintiffs instead assert that this

case presents the “rare” fact pattern in which evidence of a

single violation is enough to establish Monell liability under

a “failure to train” theory. See Connick, 563 U.S. at 64. But

the record indicates that, despite deploying at numerous

protests every year, Grenadiers rarely resort to using

chemical agents. Plaintiffs do not explain how Guillen’s

alleged constitutional injury in this case is an “obvious

consequence” of PPD’s current training regimen when the

record indicates that PPD officers almost never deploy

chemical agents, let alone illegally. Cf. Connick, 563 U.S.

at 63–64 (stating that, in “the hypothetical example of a city

that arms its police force with firearms and deploys the

armed officers into the public to capture fleeing felons

without training the officers in the constitutional limitation

on the use of deadly force,” such a failure to train ”could

reflect the city’s deliberate indifference” to constitutional

violations, “[g]iven the known frequency with which police

attempt to arrest fleeing felons and the ‘predictability that an

58 PUENTE V. CITY OF PHOENIX

officer lacking specific tools to handle that situation will

violate citizens’ rights’” (citation omitted)). We therefore

determine that the district court was correct that Plaintiffs

failed to raise a material factual dispute regarding a “failure

to train” for purposes of Monell.

* * *

We therefore affirm the district court’s dismissal of

Plaintiffs’ claims against Defendant City of Phoenix.

VII

We reverse the district court’s denial of summary

judgment to the relevant individual Defendants on Plaintiffs

Yedlin, Travis, and Guillen’s excessive-force claims and

hold that these individual Defendants are entitled to qualified

immunity. We affirm the district court’s grant of summary

judgment to Defendants on all remaining claims.

AFFIRMED IN PART, REVERSED IN PART, and

REMANDED.