Cheairs v. City of Seattle

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TAYLOR CHEAIRS, No. 24-3163

D.C. No.

Plaintiff - Appellant,

2:21-cv-01343-

LK

v.

CITY OF SEATTLE, and its officers,

employees and agents; SEATTLE OPINION

POLICE DEPARTMENT, and its

officers, employees and agents;

JOHN DOES, 1-10, unidentified

members of the Seattle Police

Department,

Defendants - Appellees.

Appeal from the United States District Court

for the Western District of Washington

Lauren J. King, District Judge, Presiding

Argued and Submitted May 21, 2025

Seattle, Washington

Filed August 1, 2025

Before: Ronald M. Gould, Richard C. Tallman, and

Morgan B. Christen, Circuit Judges.

Opinion by Judge Christen

2 CHEAIRS V. CITY OF SEATTLE

SUMMARY *

Excessive Force/Retaliation

The panel affirmed the district court’s summary

judgment for the City of Seattle, the Seattle Police

Department, and several police officers in a 42 U.S.C.

§ 1983 action brought by Taylor Cheairs, who alleged that

Officer Anderson used excessive force and retaliated against

him in violation of the Fourth and First Amendments when

Officer Anderson threw a blast ball diversionary device

toward a crowd during a protest dispersal, injuring Cheairs,

who was filming the protest.

A blast ball diversionary device creates a flash of light,

emits a loud sound, and a chemical irritant two seconds after

it is activated. Here, the blast ball hit the pavement near the

curb where Cheairs was standing, bounced, and exploded as

it struck him in the groin. Cheairs was seriously

injured. The district court concluded that (1) there was no

Fourth Amendment violation because Cheairs was not

seized; (2) Cheairs’s First Amendment claim failed because

there was no evidence of retaliation; and (3) there could be

no municipal liability without a colorable showing of a

constitutional violation.

Affirming the district court’s summary judgment for

defendants on the Fourth Amendment claim, the panel held

that although a reasonable fact finder could conclude that

Cheairs was seized when Anderson struck him with the blast

ball, Anderson’s use of force was reasonable under the

*

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

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

CHEAIRS V. CITY OF SEATTLE 3

circumstances. A person is seized when an officer uses force

with intent to restrain. On this record a reasonable fact

finder could find that Anderson’s use of force manifested an

objective intent to restrain. The use of force was not

excessive, however, given that the protesters at the front of

the crowd, near whom Cheairs stood, objectively posed an

immediate threat to the safety of officers, citizens, and

property.

Cheairs failed to establish a viable First Amendment

retaliation claim because he failed to raise a material

question as to whether his filming of the protest was a

substantial or motivating factor in Anderson’s use of force

against him.

The panel agreed with the district court that without a

viable constitutional claim, Cheairs could not establish a

claim for municipal liability.

COUNSEL

Jay S. Carlson (argued), Carlson Legal, Seattle, Washington;

Jason B. Moore, Paradigm Law PLLC, Seattle, Washington;

for Plaintiff-Appellant.

Thomas P. Miller (argued) and Stuart A. Cassel, Keating

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

Defendants-Appellees.

4 CHEAIRS V. CITY OF SEATTLE

OPINION

CHRISTEN, Circuit Judge:

On the evening of June 7–8, 2020, a crowd gathered in

Seattle to protest the killing of George Floyd, and Taylor

Cheairs decided to film the protesters’ interaction with the

police. Shortly after midnight, protesters advanced on the

East Precinct police station in Seattle’s Capitol Hill

Neighborhood. The police ordered the crowd to disperse,

and an officer threw several less-lethal munitions toward the

crowd. One of the munitions was a blast ball grenade, a

diversionary device that creates a flash of light and emits a

loud sound and a chemical irritant two seconds after it is

activated. The blast ball hit the pavement near the curb

where Cheairs was standing, bounced, and exploded as it

struck him in the groin. Cheairs was seriously injured.

Cheairs sued the City of Seattle, the Seattle Police

Department (SPD), and several unnamed police officers

pursuant to 42 U.S.C. § 1983. He claimed that the officer

who threw the blast ball that injured him used excessive

force and retaliated against him for filming the protest. The

district court granted summary judgment in favor of

Defendants, concluding that the City and SPD did not violate

Cheairs’s Fourth Amendment rights because he was not

seized, and did not violate his First Amendment rights

because there was no evidence that SPD acted in retaliation

for Cheairs filming the protest. The district court concluded

that there could be no municipal liability without a colorable

showing of a constitutional violation. The City’s motion did

not seek a ruling that Defendants were entitled to qualified

immunity.

CHEAIRS V. CITY OF SEATTLE 5

We affirm the district court’s judgment. Though a

reasonable fact finder could conclude that Cheairs was

seized when an SPD officer struck him with a blast ball, the

officer’s use of force was reasonable under the

circumstances. Cheairs failed to establish a viable First

Amendment retaliation claim because he did not raise a

material question as to whether his filming of the protest was

a substantial or motivating factor in the SPD officer’s use of

force against him. We agree with the district court that

without a viable constitutional claim, Cheairs could not

establish a claim for municipal liability.

I

Protests erupted across the United States after a

Minneapolis police officer killed George Floyd while

arresting him on May 25, 2020. 1 Demonstrations began in

Seattle a few days later. The protests caused significant

property destruction in the downtown area, but they took

place throughout the city, including the Capitol Hill

neighborhood. The protests spurred Seattle Mayor Jenny

Durkan to issue a proclamation of civil emergency on May

30 that delegated authority to Seattle’s Fire and Police

Chiefs to direct any measures necessary to protect people

and property and to maintain public order.

1

For our statement of facts, we rely on SPD’s Police Manual; the blast

ball manufacturer’s specifications; the Seattle Police Operations Center

computer-aided dispatch log; SPD officers’ post-incident reports; SPD

officers’ body-cam videos from June 7–8, 2020; Cheairs’s sworn

deposition testimony; and the two videos Cheairs filmed of the incident.

Officer Anderson was not deposed. In large part, we rely on the video

recordings in the record. See Scott v. Harris, 550 U.S. 372, 380–81

(2007) (admonishing courts to “view[] the facts in the light depicted by

the videotape” when unchallenged). The parties do not dispute the

accuracy of these materials.

6 CHEAIRS V. CITY OF SEATTLE

On June 7, 2020, the day before Cheairs was injured,

protesters marched down Interstate 5; threw rocks, bottles,

and other projectiles at police officers; lit patrol cars on fire;

and threw Molotov cocktails. By then, after more than a

week of protests, SPD was following a revised “Incident

Action Plan” intended “to help de-escalate the highly

energized crowd” and to reduce the protesters’ ability to

verbally and physically engage with SPD personnel. Among

other facilities, SPD planned to protect Capitol Hill’s East

Precinct police station near the intersection of 12th Avenue

and Pine Street. At least three violent clashes between police

and protesters had already occurred near the East Precinct,

and the streets around the precinct had been closed for

several days.

SPD equipped the officers responding to the protests

with less-lethal munitions, including blast balls. 2 SPD used

two types of blast balls on the night of June 7–8: inert and

oleoresin capsicum (OC). Inert blast balls create a flash of

light and emit a loud noise. OC blast balls create a flash of

light, emit a loud noise, and also disperse OC powder,

commonly known as pepper spray. Officer Carl Anderson

was SPD’s Chemical Agent Response Team Leader on the

night Cheairs was injured. His assignment required special

training and made him responsible for deploying blast balls

2

The manufacturer’s label dubs these munitions “rubber ball blast

grenades,” and the parties refer to them as “grenades” and “blast balls.”

They are about three inches in diameter, are activated by pulling a pin,

and operate like grenades. Once activated, there is a 1.5-second delay

that initiates the fuse assembly separation, followed by another 0.5-

second delay before detonation. We use the terms “blast ball” and “blast

ball grenade” because those terms are used in SPD’s Police Manual and

by the manufacturer.

CHEAIRS V. CITY OF SEATTLE 7

and other munitions as necessary to protect police officers

and citizens, and to prevent significant property damage.

SPD planned to use various barricades on June 7 to

protect the East Precinct and to maintain distance from that

night’s anticipated crowd. SPD had installed heavy-duty

metal fencing at several intersections near the East Precinct

station to prevent protesters from interfering with police

entering and exiting the facility. If protesters breached the

fence, SPD planned to form a line of officers backed by a

line of National Guard troops to prevent the protesters from

advancing on the precinct. The police captain leading the

response as the incident commander was prepared to use a

public address system, if necessary, to warn the protesters to

return to the other side of the fence.

The barricades did not hold. At 7:17 p.m., protesters

breached the police fencing, and the incident commander

used the public address system to issue multiple warnings

directing the protesters to remain on their side of the

barricades. He later recounted in his use-of-force report that

protesters disregarded his announcements and continued

crossing over to the police side of the fence. At

approximately 7:43 p.m., protesters established their own

line using some of the fencing the police had installed for

crowd control. Rather than moving back as directed, the

crowd began slowly inching toward the police line at 11th

and Pine. At approximately 7:54 p.m., SPD issued an

additional warning to the protesters breaching the police

line, and about a minute after that, the officers on the line

were ordered to activate their body cameras.

Interactions between SPD and protesters continued to

escalate. Protesters continued to disassemble the fencing the

police had installed to close off the streets surrounding the

8 CHEAIRS V. CITY OF SEATTLE

East Precinct, and the Operations Center log indicates that at

9:20 p.m., a group of protesters on the police side of the

barricades was “making announcements to burn down the

precincts.” From 9:23 p.m. to 11:38 p.m., SPD warned the

protesters multiple times to refrain from removing fencing

and advancing toward the officers. However, the Operations

Center log noted protesters shining lasers into SPD officers’

eyes at 9:24 p.m., 10:26 p.m., and 12:07 a.m.; breaking

fencing and using it as weapons at 10:10 p.m.; throwing

bottles at 11:36 p.m.; and throwing a bottle with a chemical

irritant at 11:52 p.m.

Shortly after midnight, the situation significantly

escalated. Some protesters were holding plywood shields

with “nails in them concealed by paint,” and, at about the

same time, the video record shows protesters throwing

bottles, rocks, and fireworks at the police line. As the

incident commander later described it, the protest had

devolved into “a riot,” and he determined that “it was

tactically unsound to remain in place.” The incident

commander ordered the line officers to advance from

midblock on Pine toward 11th, 3 and authorized the officers

on the line to use less-lethal munitions to break up the crowd.

At approximately 12:04 a.m., the incident commander

authorized the officers to begin deploying OC blast balls.

Using a public address system, SPD broadcast several orders

for the crowd to immediately disperse. The dispersal orders

warned those in the crowd that they would be subject to

arrest if they did not comply. The announcements also gave

notice that the police would use chemical agents or less-

lethal munitions, and informed protesters of two egress

3

King County Maps and Apps Gallery, King County iMap,

https://gismaps.kingcounty.gov/iMap/ (last visited July 25, 2025).

CHEAIRS V. CITY OF SEATTLE 9

routes they could use to leave the area safely. As the officers

slowly advanced, they were again assaulted by the crowd

with projectiles. After SPD began deploying less-lethal

munitions, the video record and witness statements show

that the crowd alternated between retreating in response to

tear gas and blast balls, and moving forward to reengage

with the police line. At 12:05 a.m., the record shows that the

police had created space between the protesters and the

police line, but by 12:11 a.m., the Operations Center log

indicates the crowd was surrounding the officers on three

sides.

Meanwhile, Cheairs was having dinner on Capitol Hill.

He was aware of the ongoing protests and out of curiosity he

decided to walk toward the “interaction between the

protesters and the police” after dinner to “see and film what

was happening at the front.” Cheairs denied that he was

there to participate in the protest and the record contains no

evidence that he did. The video record shows that Cheairs

walked up to a position on a sidewalk at the intersection of

11th and Pine that was abreast of all but a few of the

protesters at the front of the crowd. As he approached, some

protesters were dispersing in the opposite direction. Cheairs

positioned himself to get a better vantage point but stayed on

the sidewalk. The video record suggests that, at the time

Cheairs arrived, about 15 yards separated the protesters from

the police line. The audio portion of Cheairs’s first iPhone

recording captured one of SPD’s dispersal orders. 4

4

Cheairs’s iPhone recorded the dispersal order that was issued at 12:08

a.m. The order consisted of the following: “I command all those

assembled at 11th and Pine to immediately disperse, which means leave

this area. If you do not do so, you may be arrested or subject to other

police action. Other police action could include the use of chemical

10 CHEAIRS V. CITY OF SEATTLE

Officer Anderson’s body-cam video recorded that he

threw several blast balls in the ten minutes between 12:04

and 12:14 a.m. One of the blast balls Officer Anderson

threw overhand landed on the pavement near the curb where

Cheairs was standing, bounced and exploded, and struck

Cheairs in the groin as he was filming the protest. Cheairs

later described feeling “some of the worst [] acute pain” he

had ever experienced. His pants were shredded and he was

bleeding from his groin, but he was able to walk away from

the protest and drive to a nearby hospital where he received

emergency medical attention. Cheairs was treated at a burn

clinic about a week later. His physical injuries healed in

approximately six weeks. He testified that he also received

psychological counseling because of the trauma associated

with the experience.

II

On October 1, 2021, Cheairs filed a complaint pursuant

to 42 U.S.C. § 1983 in the United States District Court for

the Western District of Washington. The complaint

requested damages for violations of his First and Fourth

Amendment rights. The complaint did not name any

individual officers, but in a May 2022 response to Cheairs’s

discovery requests, Defendants identified Officer Anderson

as the SPD officer who threw the blast ball that struck

Cheairs.

agents or less lethal munitions, which may inflict significant pain or

result in serious injury. If you remain in the area just described,

regardless of your purpose, you will be in violation of city and state law.

The following routes of dispersal are available: Westbound on Pine.

Southbound on Twelve.” Cheairs later testified at his deposition that he

did not know if he heard this dispersal order and that there were many

different “extremely loud” sounds happening.

CHEAIRS V. CITY OF SEATTLE 11

Defendants filed a motion for summary judgment, which

the district court granted. The court first ruled that

Defendants did not violate Cheairs’s Fourth Amendment

rights because Officer Anderson’s use of force did not

constitute a seizure. The court also ruled that Cheairs’s First

Amendment claim failed because he was present at the

protest in violation of a lawful order to disperse and because

he did not show that SPD used force in retaliation for

engaging in a protected First Amendment activity. The court

concluded that Cheairs’s failure to establish a colorable

claim for a constitutional violation foreclosed any municipal

liability claim pursuant to Monell v. Department of Social

Services, 436 U.S. 658 (1978).

III

A

We review de novo the district court’s rulings on

summary judgment. Sabbe v. Wash. Cnty. Bd. of Comm’rs,

84 F.4th 807, 815 (9th Cir. 2023). At the summary judgment

stage, we view disputed facts in the light most favorable to

the nonmoving party. Scott v. Harris, 550 U.S. 372, 378

(2007). However, we are “limited to considering what facts

the officer[s] could have known at the time of the incident.”

Sabbe, 84 F.4th at 816 (citations omitted). We have

jurisdiction pursuant to 28 U.S.C. § 1291.

B

1

Cheairs first argues that SPD used excessive force

against him in violation of his Fourth Amendment rights.

The Fourth Amendment guarantees the right to be free from

unreasonable seizures. Torres v. Madrid, 592 U.S. 306, 311

(2021). As we recently explained, the Fourth Amendment

12 CHEAIRS V. CITY OF SEATTLE

protects against “arbitrary and oppressive interference by

enforcement officials with the privacy and personal security

of individuals.” Sanderlin v. Dwyer, 116 F.4th 905, 912 (9th

Cir. 2024) (citation omitted).

Before we consider whether the force used was

reasonable, we first address whether Cheairs was seized

within the meaning of the Fourth Amendment. See Seidner

v. de Vries, 39 F.4th 591, 596 (9th Cir. 2022). 5 “A person is

seized by the police and thus entitled to challenge the

government’s action under the Fourth Amendment when the

officer by means of physical force or show of authority

terminates or restrains his freedom of movement through

means intentionally applied.” Nelson v. City of Davis, 685

F.3d 867, 875 (9th Cir. 2012) (quoting Brendlin v.

California, 551 U.S. 249, 254 (2007)). “A seizure requires

the use of force with intent to restrain.” Torres, 592 U.S. at

317 (emphasis in original); see also Terry v. Ohio, 392 U.S.

1, 19 n.16 (1968). “Accidental force will not qualify. Nor

will force intentionally applied for some other purpose.”

Torres, 592 U.S. at 317 (citation omitted); see also Nelson,

685 F.3d at 876 (“To constitute a seizure, the governmental

conduct must be purposeful and cannot be an unintentional

act which merely has the effect of restraining the liberty of

the plaintiff.”). It is well settled that the inquiry into the

5

The district court observed that Cheairs had not specifically responded

to Defendants’ allegation that the blast ball did not effectuate a seizure,

but the court went on to address the merits of the City’s argument and

ruled that no seizure had occurred. On appeal, Cheairs denies waiving

this argument and the City maintains that the court did not rely on waiver

in reaching its decision. Because the district court extensively discussed

the merits of the seizure issue, and the City addressed it in depth at the

trial court and in its brief on appeal, we exercise our discretion to reach

it as well.

CHEAIRS V. CITY OF SEATTLE 13

intentionality of the use of force considers “whether the

challenged conduct objectively manifests an intent to

restrain.” Torres, 592 U.S. at 317 (emphasis in original);

Sanderlin, 116 F.4th at 913; see also Villanueva v.

California, 986 F.3d 1158, 1166 (9th Cir. 2021) (“The intent

that counts under the Fourth Amendment is the intent

conveyed, not the officers’ subjective intent.”) (citation and

internal quotation marks omitted).

An individual need not remain immobilized to plead a

cognizable Fourth Amendment claim, because “brief

seizures are seizures all the same.” Torres, 592 U.S. at 318,

325 (holding that seizures may occur “even if the person

does not submit and is not subdued”). Our recent decision

in Sanderlin cited with approval cases from sister circuits

recognizing that seizures had occurred when officers used

force to restrict the ability of individuals to move about

freely, even if for a brief period of time, and where the force

was not applied to effectuate an arrest. 116 F.4th at 912

(citing Salmon v. Blesser, 802 F.3d 249, 254 (2d Cir. 2015)

(concluding a seizure occurred where an officer used

“painful force to control [a person’s] movements”); Hess v.

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

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

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

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

when a deputy sheriff physically grabbed plaintiff’s wrist for

a brief time); United States v. Delaney, 955 F.3d 1077, 1083

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

restrict a citizen’s freedom of movement” to effectuate a

seizure (quoting United States v. Smith, 794 F.3d 681, 686

(7th Cir. 2015))).

Sanderlin considered a Fourth Amendment claim that

arose after a non-violent protester at a George Floyd protest

14 CHEAIRS V. CITY OF SEATTLE

held in California was injured by a police officer’s

deployment of a crowd-control munition fired from a high-

velocity launcher. Id. at 908. Sanderlin was standing on a

sidewalk holding a protest sign when a police officer fired a

foam baton round directly at him. Id. at 909. Discovery

showed that Sanderlin’s sign was blocking the police

officer’s view of two subjects hiding behind a dumpster. Id.

The video record showed that the officer shouted, “I’m going

to hit you, dude. You better move!” and then fired a 40mm

foam baton round that hit Sanderlin’s groin. Id. Sanderlin

suffered a severe injury that required emergency surgery. Id.

He filed suit pursuant to 42 U.S.C. § 1983, arguing that the

officer’s use of force violated his Fourth Amendment rights.

Id. The officer contended that the use of the foam baton

round did not constitute a seizure because he had intended to

disperse Sanderlin rather than to apprehend or restrain him.

Id. at 912.

We affirmed the district court’s decision denying the

officer’s motion for summary judgment. In doing so, we

reiterated that the officer’s subjective intent is not the focus

of the Fourth Amendment analysis, and we concluded that

firing a foam baton round at the plaintiff’s groin constituted

a seizure because the record showed that the 40mm foam

baton launcher used in that case was “chiefly designed,

intended, and used for the purpose of incapacitating its

target.” Id. at 913. We concluded that a seizure had occurred

because “there can be no reasonable dispute that

‘incapacitating’ an individual by firing a projectile at them

is an act that ‘meaningfully interferes’ with their freedom of

movement.” Id. (quoting United States v. Jacobsen, 466

U.S. 109, 113 n.5 (1984)) (alteration adopted). In reaching

this conclusion, we considered the police department’s

training manual, which memorialized that the foam baton

CHEAIRS V. CITY OF SEATTLE 15

munition was designed and intended to cause incapacitation

or serious injury, especially when aimed at the groin. Id. We

also considered the video record, which corroborated

Sanderlin’s sworn statement that after he was struck, he fell

to the ground and was unable to move. Id. at 912. The fact

that Sanderlin’s freedom of movement was only temporarily

restricted—his wife later helped him to his feet and he was

able to walk away—did not change the outcome because

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

with intent to restrain is a seizure even if the person does not

submit and is not subdued.” Id. at 912 (quoting Torres, 592

U.S. at 325).

Sanderlin instructs that design, intent, and use of

munitions are factors we consider when determining

whether deployment manifests an objective intent to restrain.

Id. at 913. Here, looking first at design and intent, the

manufacturer’s specifications for the OC blast balls that

Officer Anderson used the night Cheairs was injured state:

“The purpose of the Rubber Ball Blast grenade is to

minimize the risks to all parties through temporary

distraction or disorientation of potentially violent or

dangerous subjects.” The manufacturer further explains that

the device is designed and intended to serve as an “irritant,

distraction and/or disorientation device for crowd

management.” Cf. Sanderlin, 116 F.4th at 913.

It seems plain that a fact finder could decide that

munitions that are fired at high velocity, such as foam baton

rounds or pepperballs, 6 are “chiefly designed” to inflict a

6

A pepperball is “an object that combines the shock of kinetic impact

(similar to paintballs) with the sensory discomfort associated with pepper

spray.” Nelson, 685 F.3d at 878 (citation and internal quotation marks

omitted).

16 CHEAIRS V. CITY OF SEATTLE

greater degree of force than a hand-thrown blast ball grenade

that creates a flash-bang and cloud of pepper spray. Id. at

913. A reasonable fact finder could certainly decide that a

device like a pepperball was designed to incapacitate. See

Nelson, 685 F.3d at 873 (finding a seizure occurred where

officers used devices we described as “in essence, paintball

guns” to fire rounds containing pepper spray at 350–380 feet

per second). But the grenade that Officer Anderson used

was not designed to be deployed at high velocity; it was

designed to be thrown by hand. To be sure, the record shows

that the detonation of the blast ball causes the grenade casing

to separate two seconds after it is deployed, and as the

manufacturer’s warning makes clear, that explosion is

certainly capable of causing serious injury. Nevertheless, we

cannot say that the record shows the design of the munition

used in this case was comparable to the high-velocity

pepperballs in Nelson or designed to incapacitate like the

foam baton used in Sanderlin.

In addition to considering design, we consider the way

munitions are used because the way munitions are employed

may also manifest an objective intent to restrain and thus

result in a seizure. Id. at 913. The SPD Manual reflects

SPD’s policy that officers must have completed SPD blast

ball training in order to deploy this type of munition, and it

requires that the use of each blast ball must be individually

justified. The Manual cautions that the preferred method of

blast ball deployment is an underhand toss, “bowling style,”

but it permits throwing blast balls overhand “when the need

for a farther deployment or the need to get around an

obstruction outweighs the risk created by [overhand

deployment of] the separating sub-munition.” The SPD

Manual categorizes the force associated with various police

actions as de minimis, “handcuff discomfort,” Type I, Type

CHEAIRS V. CITY OF SEATTLE 17

II, Type III, and deadly force. The deployment of blast balls

away from people is classified as Type I force, and within

close proximity to people as Type II force that may rise to

Type III if deployment results in certain types of injury or

complaints of injury.

Officer Anderson threw the blast ball that injured

Cheairs overhand, but the video record corroborates his

statement that he did so because he was behind a number of

other officers standing on the front line. Importantly, the

blast ball that struck Cheairs landed on the pavement

between the crowd and police, skidded across the pavement

until it struck a curb, bounced, then exploded. Throwing this

device in the space between the protesters and the police is

consistent with an objective intent to disperse the crowd and

“create space” between the protesters and the police line

because protesters can be expected to move back from a

cloud of dispersing pepper spray. Indeed, the video record

shows that the deployment of less-lethal munitions in the

space between the crowd and the police line did move the

crowd back. Had the device been thrown overhand and into

the crowd of protesters, the use of the blast ball objectively

would be more likely to risk injury for the reasons explained

in SPD’s Manual—“the risk created by the separating sub-

munition” at head height. Throwing a blast ball grenade into

a crowd would also be less likely to create space between the

protesters and the police line because, for people standing

near the front of a crowd, moving away from a cloud of

pepper spray emerging behind them would require moving

toward the police line. Had the blast ball been deployed

overhand and into the crowd, rather than into the space

between the crowd and the police line, the use would not be

consistent with an objective intent to push the crowd back

and away from the police.

18 CHEAIRS V. CITY OF SEATTLE

On the record before us, we conclude that whether the

use of force in this case manifested an objective intent to

restrain Cheairs is not capable of resolution at the summary

judgment stage. At the outset, we note that for the same

reasons that Sanderlin’s ability to walk away was not

dispositive of whether a seizure occurred in that case,

Cheairs’s ability to walk away from the protest in Seattle

does not foreclose his argument that he was seized when

Officer Anderson struck him with a blast ball. But there are

facts in the record that would allow a reasonable jury to

decide Cheairs was not seized. First, it is uncontested that

the device was thrown by hand, not fired at high velocity.

Second, the video record corroborates that there was a

barrier to deploying the device in the preferred “bowling

style” underhand method, and while SPD policy discourages

overhand deployment, it does not prohibit it. Third, the

device that injured Cheairs landed between the crowd and

the police line, and there is no evidence that Officer

Anderson aimed at Cheairs rather than the space between the

crowd and the police. From these facts, a reasonable jury

could decide that the use of force was objectively intended

to push back the crowd, rather than to restrain the crowd or

any member of the crowd. Indeed, the record shows the

crowd did retreat multiple times when less-lethal munitions

landed in the space between the crowd and the police.

However, a reasonable jury could also reach the contrary

conclusion because the blast ball that injured Cheairs is

capable of inflicting very serious injury—if not by design,

then if used in the way we have described. Thrown

overhand, as it was here, a blast ball presents a greater risk

of injury if it detonates at head level, and Officer Anderson

threw the device in the direction of the crowd. See Nelson,

685 F.3d at 877 (finding seizure because the officers’

CHEAIRS V. CITY OF SEATTLE 19

“conduct was intentional, it was aimed towards [the plaintiff

and the group he was standing with], and it resulted in the

application of physical force to [the plaintiff’s] person as

well as the termination of his movement”). Finally, it is

evident from the video record that the crowd’s proximity to

the police line was fluid as protesters alternated between

engaging closely with the police and falling back in response

to SPD’s use of less-lethal munitions, and the video record

does not allow a clear picture of what a reasonable officer in

Officer Anderson’s position would have been able to see in

the moments before he threw the blast ball that injured

Cheairs.

2

Whether Cheairs’s Fourth Amendment claim survives

the motion for summary judgment depends on whether the

record supports his contention that a jury could find that

Officer Anderson’s use of force was unreasonable. Graham

v. Connor, 490 U.S. 386, 396 (1989) (explaining that the

critical question in determining whether a seizure comports

with the Fourth Amendment is whether the use of force was

objectively reasonable under the circumstances). This

question requires us to “balance the nature and quality of the

intrusion on the individual’s Fourth Amendment interests

against the importance of the governmental interests alleged

to justify the intrusion” to determine whether the

government’s use of force was excessive. Scott, 550 U.S. at

383 (quotation omitted). The government’s interest in the

use of force depends on: “(1) the severity of the crime;

(2) whether the suspect posed an immediate threat to the

safety of the officers or others; and (3) whether the suspect

was actively resisting arrest or attempting to evade arrest by

flight.” Sabbe, 84 F.4th at 822; Graham, 490 U.S. at 396–

20 CHEAIRS V. CITY OF SEATTLE

97. The “immediate threat” factor is the most important.

Sabbe, 84 F.4th at 822.

When balancing these interests, we consider the “totality

of the circumstances,” Plumhoff v. Rickard, 572 U.S. 765,

774 (2014), including the “particular situation” and the

“particular type of force” used. Scott, 550 U.S. at 382. “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. We allow for an officer’s need “to make split-

second judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount of force

that is necessary in a particular situation.” Id. at 397.

By midnight on June 8, the government had strong

justification to use some degree of force to respond to serious

threats to police, the public, and property. The

comprehensive record disproves Cheairs’s assertion that the

crowd was “largely peaceful.” Officers’ body cams

recorded, and Cheairs’s own videos confirm, that protesters

near Cheairs were throwing projectiles, launching fireworks,

and shining lasers at officers in the minutes before Officer

Anderson threw the blast ball that struck Cheairs. The

protest had gone on since the afternoon and the degree of

violence appeared to be escalating. There is no question that

SPD had given orders to disperse before Cheairs was injured,

and the announcements included directions for safely exiting

the area. Some of the protesters complied, but others ignored

the orders in violation of Washington law. See Wash. Rev.

Code § 9A.84.020(1)(a)–(b) (providing that failure to

comply with a lawful order to disperse is a misdemeanor

offense). The Operations Center log includes entries

reporting that protesters had threatened to burn down the

nearby precincts.

CHEAIRS V. CITY OF SEATTLE 21

There is little doubt based upon the video evidence that

a reasonable officer in Officer Anderson’s shoes would have

concluded, before Officer Anderson deployed the OC blast

ball grenade that injured Cheairs, that probable cause existed

to arrest at least some of the protesters for disregarding the

dispersal orders, or for assaulting or attempting to assault

police officers on the line, at the intersection of 11th and

Pine. Thus, the government had an important interest in

using force to protect officers and bystanders and to prevent

serious property damage.

Although following department policy does not

necessarily guarantee that an officer’s conduct will be

constitutional under the Fourth Amendment, we also

consider that Officer Anderson deployed the blast ball that

struck Cheairs in accordance with SPD policy and in

response to an increasingly hostile, threatening crowd. The

SPD Manual provides that “when feasible, officers will not

deploy blast balls until a dispersal order has been issued to

the crowd, the crowd has been given a reasonable amount of

time to comply, and a supervisor has authorized the

deployment.” When protesters continued shining lasers and

throwing projectiles at the line of officers, SPD issued

another dispersal order, then deployed OC blast balls. Key

to our analysis, the blast ball that injured Cheairs struck the

pavement before it detonated. Had it been thrown in a way

calculated to explode at head height, it would have presented

a far greater risk of injury and thus could have constituted an

unreasonable use of force. See Nelson, 685 F.3d at 878.

On the record before us, we conclude that it was

reasonable for the police to perceive that the protesters at the

front of the crowd, near whom Cheairs stood, objectively

posed an immediate threat to the safety of officers, citizens,

and property. Therefore, having considered the totality of

22 CHEAIRS V. CITY OF SEATTLE

the circumstances, we conclude that the force Officer

Anderson employed was not excessive. Cf. Young v. City of

Los Angeles, 655 F.3d 1156, 1167 (9th Cir. 2011) (holding

that pepper spray and baton blows were excessive uses of

force against a non-compliant but non-violent subject who

was seated on a curb and then prone and handcuffed on the

sidewalk) (citing Headwaters Forest Def. v. County of

Humboldt, 276 F.3d 1125, 1130–31 (9th Cir. 2002) (holding

that directly applying pepper spray to the eyes of non-violent

environmental protesters who refused to unchain

themselves, by holding Q-tips doused with pepper spray to

the corners of their eyes, was unnecessary and excessive

force)).

Cheairs urges us to consider an order entered by a

different district court judge in the Western District of

Washington in response to the same protests. That order

enjoined SPD “from employing chemical irritants or

projectiles of any kind against persons peacefully engaging

in protests or demonstrations.” Black Lives Matter Seattle-

King Cnty. v. City of Seattle, Case No. 2:20-cv-00887-RAJ

(W.D. Wash. 2020), Dkt. No. 34. But that order was issued

on June 12, 2020, several days after Cheairs was injured, and

it addressed the use of force against peaceful protesters.

“The reasonableness of a particular use of force must be

judged from the perspective of a reasonable officer on the

scene,” based only on what was known at the time of the

incident. Graham, 490 U.S. at 396. Because it post-dated

Cheairs’s injury, the June 12 temporary restraining order

CHEAIRS V. CITY OF SEATTLE 23

does not impact our analysis of the reasonableness of the

force that injured Cheairs. 7

Cheairs also argues that we should take into account

evidence that Officer Anderson threw another blast ball

overhand shortly after deploying the blast ball at issue in this

case. That blast ball struck a protester in the chest and

caused serious injury. This evidence is relevant because it

confirms that the munition that injured Cheairs is capable of

inflicting very serious injury, even if it is not designed to do

so. But it does not support Cheairs’s contention that the

force Officer Anderson used was excessive under the

circumstances. Our precedent requires that we consider the

facts that were known to Officer Anderson at the time of the

incident. Graham, 490 U.S. at 396. A reasonable officer in

Officer Anderson’s position would justify the deployment of

OC blast balls aimed at the space between police and

protesters as necessary to increase the distance between

them. Id.

Finally, Cheairs relies on Nelson v. City of Davis, 685

F.3d 867 (9th Cir. 2012) and Young v. County of Los

Angeles, 655 F.3d 1156 (9th Cir. 2011) to argue that Officer

Anderson used excessive force. This precedent does not

persuade us that Officer Anderson’s use of force was

unreasonable, because the facts that pertained to the

reasonableness of the officers’ use of force in Nelson and

Young are easily distinguishable from the facts in this case.

In Nelson, the police responded to an apartment complex

where approximately 1,000 partygoers had gathered for the

7

Accordingly, we deny the motion for judicial notice of parts of the

docket in the Black Lives Matter Seattle-King County Case (Dkt. No.

25).

24 CHEAIRS V. CITY OF SEATTLE

annual Picnic Day festivities at the University of California

at Davis. Id. at 872–73. The police responded to a request

from a property owner “in the absence of” any exigency. Id.

at 880. At some point, some members of the crowd began

throwing objects at the police, but the police testified that

none of the objects came from the direction where Nelson

and his friends were standing. Id. The police ordered the

crowd to disperse, but they did not give Nelson and his

friends an opportunity to comply with the order and the

crowd had no path to exit safely. Id. at 872, 874. Discovery

showed that the students “called out to the police, asking the

officers to inform them what they wanted the students to do,

and repeatedly raised their hands to show their willingness

to comply.” Id. at 874. Without warning, the police shot

pepperballs toward the crowd at high velocity and struck

Nelson in the eye, severely injuring him. Id. at 872.

The group of college students targeted with pepperballs

in Nelson was, at most, passively resisting police dispersal

orders and not “engaging in any other threatening or

dangerous behavior.” Id. at 880. In contrast, the large crowd

of protesters at 11th and Pine had ignored multiple dispersal

orders that included directions to exit, and the crowd was

growing increasingly violent. The severity of the protesters’

crimes in this case and the immediate threat to the safety of

the officers, the public, and property easily distinguish the

reasonableness of the use of force here from the

reasonableness of the use of force in Nelson. 8 See Graham,

490 U.S. at 396–97.

8

Though Nelson’s analysis of the reasonableness of the officers’ use of

force is distinguishable, Nelson’s seizure analysis does provide a helpful

guidepost, and it closely tracks the seizure analysis in Sanderlin. In both

cases, officers shot projectiles into crowds at high velocity, intending to

CHEAIRS V. CITY OF SEATTLE 25

The facts of Young are similarly distinguishable. Young

involved a traffic stop in which an individual declined to get

back into his car after exiting to hand his vehicle registration

to a police officer who was writing a traffic citation. Young,

655 F.3d at 1159. After the plaintiff refused to reenter his

car, the officer pepper-sprayed him without warning as he

was sitting on the curb and later struck him repeatedly with

a baton after he was handcuffed and lying face-down on the

ground. Id. at 1159–60. We observed that it is rarely, if ever,

necessary “for a police officer to employ substantial force

without warning against an individual who . . . is not

resisting arrest or does not pose any apparent threat to officer

or public safety.” Id. at 1166–67. The facts in Young are not

at all comparable to the facts that warranted the use of force

in this case.

In light of all the relevant circumstances, we affirm the

district court’s order granting summary judgment on

Cheairs’s Fourth Amendment claim.

C

Cheairs argues that Officer Anderson retaliated against

him for filming the protest, thereby violating his First

Amendment rights. See Fordyce v. City of Seattle, 55 F.3d

436, 439 (9th Cir. 1995). To establish a First Amendment

retaliation claim, Cheairs must show that: (1) he was

“engaged in a constitutionally protected activity;” (2) the

SPD officer’s actions “would chill a person of ordinary

firmness from continuing to engage in the protected

strike members of the gatherings. In both cases, we concluded that

seizures occurred. Cf. Puente v. City of Phoenix, 123 F.4th 1035 (9th

Cir. 2024) (reasoning that dispersal of a crowd with airborne chemical

irritants or flashbang grenades, not projectiles, did not constitute a

seizure).

26 CHEAIRS V. CITY OF SEATTLE

activity;” and (3) “the protected activity was a substantial or

motivating factor” in the SPD officer’s conduct. Index

Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817, 827

(9th Cir. 2020).

Whether an officer was motivated by discriminatory

animus “involves questions of fact that normally should be

left for trial,” id., but here, Cheairs fails to present a triable

issue with respect to the third element of his retaliation

claim. Cheairs testified in his deposition that he had no

reason to believe that Officer Anderson intended to hit him

with a blast ball as he stood filming the protest. And in

response to the summary judgment motion, he offered no

evidence that Officer Anderson was aware that Cheairs was

filming the protest, much less that Officer Anderson sought

to retaliate against him for exercising his First Amendment

rights. Indeed, the record corroborates Officer Anderson’s

statements that there was a line of SPD officers standing in

front of him, blocking his view.

In comparison, the officer in Sanderlin did not deny that

he intended to strike the plaintiff with a foam baton round,

and he even shouted a warning that Sanderlin would be hit if

he did not move. Sanderlin, 116 F.4th at 909. Based on

these facts, we held that a factfinder “could reasonably infer

that those actions were motivated by retaliatory animus.” Id.

at 911. Similarly, in Index Newspapers, we noted there was

“exceptionally strong” evidence of retaliation where

journalists wearing clothing conspicuously marked

“PRESS” and “standing nowhere near protesters” were

targeted with pepper spray at point-blank range, shot in the

chest with less-lethal munitions, and physically assaulted

while recording federal agents’ conflict with protesters.

Index Newspapers, 977 F.3d at 829. Unlike the plaintiffs in

these cases, Cheairs did not meet his burden of offering

CHEAIRS V. CITY OF SEATTLE 27

admissible evidence to show a material dispute of fact

concerning the causal relationship between his protected

activity and his subsequent injury. See Nieves v. Bartlett,

587 U.S. 391, 398–99 (2019).

We affirm the district court’s order granting summary

judgment with respect to Cheairs’s First Amendment claim.

D

Local government units may be held responsible under

Section 1983 when they maintain a policy or custom that

causes the constitutional violation at issue. Monell, 436 U.S.

at 690, 694. But without a constitutional claim that can

survive summary judgment, the district court correctly ruled

that Cheairs cannot establish Monell liability. Yousefian v.

City of Glendale, 779 F.3d 1010, 1016 (9th Cir. 2015).

We AFFIRM the judgment of the district court.