Bryan v. MacPherson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARL BRYAN, 

Plaintiff-Appellee,

No. 08-55622

v.

D.C. No.

BRIAN MACPHERSON; CORONADO  3:06-CV-01487-

POLICE DEPARTMENT; CITY OF LAB-CAB

CORONADO, a municipal

OPINION

corporation,

Defendants-Appellants.



Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted

October 9, 2009—Pasadena, California

Filed June 18, 2010

Before: Harry Pregerson, Stephen Reinhardt and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Wardlaw

8885

BRYAN v. MACPHERSON 8889

COUNSEL

Steven E. Boehmer, David Stotland, Carrie L. Mitchell of

McDougal, Love, Eckis, Smith, Boehmer & Foley, El Cajon,

California, for the appellant.

Eugene G. Iredale, Julia Yoo of Law Offices of Eugene G.

Iredale, San Diego, California, for the appellee.

OPINION

WARDLAW, Circuit Judge:

Early one morning in the summer of 2005, Officer Brian

MacPherson deployed his taser against Carl Bryan during a

traffic stop for a seatbelt infraction. Bryan filed this action

under 42 U.S.C. § 1983, asserting excessive force in violation

of the Fourth Amendment. Officer MacPherson appeals the

denial of his motion for summary judgment based on quali-

fied immunity. We affirm the district court in part because,

viewing the circumstances in the light most favorable to

Bryan, Officer MacPherson’s use of the taser was unconstitu-

tionally excessive. However, we reverse in part because the

violation of Bryan’s constitutional rights was not clearly

8890 BRYAN v. MACPHERSON

established at the time that Officer MacPherson fired his taser

at Bryan on July 24, 2005.

I. FACTUAL AND PROCEDURAL BACKGROUND

Carl Bryan’s California Sunday was off to a bad start. The

twenty-one year old, having stayed the night with his younger

brother and some cousins in Camarillo, which is in Ventura

County, planned to drive his brother back to his parents’

home in Coronado, which is in San Diego County. However,

Bryan’s cousin’s girlfriend had accidently taken Bryan’s keys

to Los Angeles the previous day. Wearing the t-shirt and

boxer shorts in which he had slept, Bryan rose early, traveled

east with his cousins to Los Angeles, picked up his keys and

returned to Camarillo to get his car and brother. He then

began driving south towards his parents’ home. While travel-

ing on the 405 highway, Bryan and his brother were stopped

by a California Highway Patrolman who issued Bryan a

speeding ticket. This upset him greatly. He began crying and

moping, ultimately removing his t-shirt to wipe his face. Con-

tinuing south without further incident, the two finally crossed

the Coronado Bridge at about seven-thirty in the morning.

At that point, an already bad morning for Bryan took a turn

for the worse. Bryan was stopped at an intersection when

Officer MacPherson, who was stationed there to enforce seat-

belt regulations, stepped in front of his car and signaled to

Bryan that he was not to proceed. Bryan immediately realized

that he had mistakenly failed to buckle his seatbelt after his

earlier encounter with the police. Officer MacPherson

approached the passenger window and asked Bryan whether

he knew why he had been stopped. Bryan, knowing full well

why and becoming increasingly angry at himself, simply

stared straight ahead. Officer MacPherson requested that

Bryan turn down his radio and pull over to the curb. Bryan

complied with both requests, but as he pulled his car to the

curb, angry with himself over the prospects of another cita-

tion, he hit his steering wheel and yelled expletives to himself.

BRYAN v. MACPHERSON 8891

Having pulled his car over and placed it in park, Bryan

stepped out of his car.

There is no dispute that Bryan was agitated, standing out-

side his car, yelling gibberish and hitting his thighs, clad only

in his boxer shorts and tennis shoes. It is also undisputed that

Bryan did not verbally threaten Officer MacPherson and,

according to Officer MacPherson, was standing twenty to

twenty-five feet away and not attempting to flee. Officer Mac-

Pherson testified that he told Bryan to remain in the car, while

Bryan testified that he did not hear Officer MacPherson tell

him to do so. The one material dispute concerns whether

Bryan made any movement toward the officer. Officer Mac-

Pherson testified that Bryan took “one step” toward him, but

Bryan says he did not take any step, and the physical evidence

indicates that Bryan was actually facing away from Officer

MacPherson. Without giving any warning, Officer MacPher-

son shot Bryan with his taser gun. One of the taser probes

embedded in the side of Bryan’s upper left arm. The electrical

current immobilized him whereupon he fell face first into the

ground, fracturing four teeth and suffering facial contusions.

Bryan’s morning ended with his arrest1 and yet another drive

—this time by ambulance and to a hospital for treatment.

Bryan sued Officer MacPherson and the Coronado Police

Department, its police chief, and the City of Coronado for

excessive force in violation of 42 U.S.C. § 1983, assault and

battery, intentional infliction of emotional distress, a violation

of California Civil Code § 52.1, as well as failure to train and

related causes of action. On summary judgment, the district

court granted relief to the City of Coronado and Coronado

Police Department, but determined that Officer MacPherson

was not entitled to qualified immunity at this stage of the pro-

1

Bryan was charged with resisting and opposing an officer in the perfor-

mance of his duties in violation of California Penal Code § 148. Bryan

was tried on this violation, but following a hung jury, the state dismissed

the charges.

8892 BRYAN v. MACPHERSON

ceedings. The court concluded that a reasonable jury could

find that Bryan “presented no immediate danger to [Officer

MacPherson] and no use of force was necessary.” In particu-

lar, it found that a reasonable jury could find that Bryan was

located between fifteen to twenty-five feet from Officer Mac-

Pherson and was not facing him or advancing toward him.

The court also found that a reasonable officer would have

known that the use of the taser would cause pain and, as

Bryan was standing on asphalt, that a resulting fall could

cause injury. Under the circumstances, the district court con-

cluded it would have been clear to a reasonable officer that

shooting Bryan with the taser was unlawful.

II. STANDARD OF REVIEW

The district court’s denial of qualified immunity is

reviewed de novo. Blanford v. Sacramento County, 406 F.3d

1110, 1114 (9th Cir. 2005). Where disputed issues of material

fact exist, we assume the version of the material facts asserted

by the non-moving party. See KRL v. Estate of Moore, 512

F.3d 1184, 1188-89 (9th Cir. 2008). All reasonable inferences

must be drawn in favor of the non-moving party. John v. City

of El Monte, 515 F.3d 936, 941 (9th Cir. 2008).

III. DISCUSSION

[1] In evaluating the denial of a police officer’s assertion

of qualified immunity, we ask two distinct questions. First, we

must determine whether, taking the facts in the light most

favorable to the non-moving party, the officer’s conduct vio-

lated a constitutional right; and second, if a violation

occurred, whether the right was “clearly established in light

of the specific context of the case.” al-Kidd v. Ashcroft, 580

F.3d 949, 964 (9th Cir. 2009) (citing Saucier v. Katz, 533 U.S.

194, 201 (2001)). We may “exercise [our] sound discretion in

deciding which of the two prongs of the qualified immunity

analysis should be addressed first.” Pearson v. Callahan, 129

S. Ct. 808, 818 (2009).

BRYAN v. MACPHERSON 8893

A. Did Officer MacPherson Employ Constitutionally

Excessive Force?

[2] Allegations of excessive force are examined under the

Fourth Amendment’s prohibition on unreasonable seizures.

Graham v. Connor, 490 U.S. 386, 394 (1989); Deorle v. Ruth-

erford, 272 F.3d 1272, 1279 (9th Cir. 2001). We ask “whether

the officers’ actions are ‘objectively reasonable’ in light of the

facts and circumstances confronting them.” Graham, 490 U.S.

at 397. We must balance “ ‘the nature and quality of the intru-

sion on the individual’s Fourth Amendment interests’ against

the countervailing governmental interests at stake.” Id. at 396

(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)); see also

Scott v. Harris, 550 U.S. 372, 383 (2007). Stated another way,

we must “balance the amount of force applied against the

need for that force.” Meredith v. Erath, 342 F.3d 1057, 1061

(9th Cir. 2003).

1. Nature and Quality of the Intrusion

We begin by analyzing the quantum of force—the type and

amount of force—that Officer MacPherson used against Bryan.2

See Deorle, 272 F.3d at 1279; Chew v. Gates, 27 F.3d 1432,

1440 (9th Cir. 1994). Officer MacPherson shot Bryan with a

Taser X26 provided by the Coronado Police Department. The

X26 uses compressed nitrogen to propel a pair of “probes”—

aluminum darts tipped with stainless steel barbs connected to

the X26 by insulated wires—toward the target at a rate of

over 160 feet per second. Upon striking a person,3 the X26

delivers a 1200 volt, low ampere electrical charge through the

2

Although the taser used by Officer MacPherson was the X26 model,

our holding applies to the use of all controlled electric devices that cause

similar physiological effects.

3

According to the manufacturer, the probes do not need to penetrate the

skin of the intended target to result in a successful connection. The probes

are capable of delivering their electrical charge through up to two inches

of clothing. Here, Bryan was shirtless when confronted by Officer Mac-

Pherson. As a result, one probe penetrated his skin.

8894 BRYAN v. MACPHERSON

wires and probes and into his muscles.4 The impact is as pow-

erful as it is swift. The electrical impulse instantly overrides

the victim’s central nervous system, paralyzing the muscles

throughout the body, rendering the target limp and helpless.

See Draper v. Reynolds, 369 F.3d 1270, 1273 n.3 (11th Cir.

2004); Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993).

The tasered person also experiences an excruciating pain that

radiates throughout the body. See Lewis v. Downey, 581 F.3d

467, 475 (7th Cir. 2009) (“[O]ne need not have personally

endured a taser jolt to know the pain that must accompany it

. . . .”); Hickey, 12 F.3d at 757.

[3] Bryan vividly testified to experiencing both paralysis

and intense pain throughout his body when he was tasered. In

addition, Officer MacPherson’s use of the X26 physically

injured Bryan. As a result of the taser, Bryan lost muscular

control and fell, uncontrolled, face first into the pavement.

This fall shattered four of his front teeth and caused facial

abrasions and swelling. Additionally, a barbed probe lodged

in his flesh, requiring hospitalization so that a doctor could

remove the probe with a scalpel. A reasonable police officer

with Officer MacPherson’s training on the X26 would have

foreseen these physical injuries when confronting a shirtless

individual standing on asphalt. We have held that force can be

unreasonable even without physical blows or injuries. See,

e.g., Headwaters Forest Def. v. County of Humboldt, 240 F.3d

1185, 1199 (9th Cir. 2000), vacated and remanded on other

grounds 534 U.S. 801 (2001);5 Tekle v. United States, 511

4

Tasers have been described as delivering a 50,000 volt charge. See,

e.g., Brown v. City of Golden Valley, 574 F.3d 491, 495 n.3 (8th Cir.

2009). While technically accurate, this does not entirely describe the elec-

trical impulse encountered by a taser victim. According to the manufac-

turer, this 50,000 volt charge is needed to ensure that the electrical current

can “jump” through the air or victim’s clothing, thus completing a circuit.

The manufacturer maintains, however, that the full 50,000 volts do not

enter the victim’s body; rather, it represents that the X26 delivers a peak

voltage of 1,200 volts into the body.

5

On remand from the Supreme Court in light of its then-recent opinion

in Saucier, the Headwaters panel reaffirmed its earlier excessive force

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

1125 (9th Cir. 2002).

BRYAN v. MACPHERSON 8895

F.3d 839, 845 (9th Cir. 2007). The presence of non-minor

physical injuries like those suffered by Bryan, however, is

certainly relevant in evaluating the degree of the Fourth

Amendment intrusion.

[4] We, along with our sister circuits, have held that tasers

and stun guns fall into the category of non-lethal force.6 See,

e.g., Lewis, 581 F.3d at 476; United States v. Fore, 507 F.3d

412, 413 (6th Cir. 2007); San Jose Charter of Hells Angels

Motorcycle Club v. City of San Jose, 402 F.3d 962, 969 n.8

(9th Cir. 2005).7 Non-lethal, however, is not synonymous with

non-excessive; all force—lethal and non-lethal—must be jus-

tified by the need for the specific level of force employed.

Graham, 490 U.S. at 395; see also Deorle, 272 F.3d at 1285

(“Less than deadly force, like deadly force, may not be used

without sufficient reason; rather, it is subject to the Graham

balancing test.”). Nor is “non-lethal” a monolithic category of

force. A blast of pepper spray and blows from a baton are not

necessarily constitutionally equivalent levels of force simply

because both are classified as non-lethal. Rather than relying

on broad characterizations, we must evaluate the nature of the

specific force employed in a specific factual situation. See

Chew, 27 F.3d at 1441 (stating that the Graham factors “are

not to be considered in a vacuum but only in relation to the

amount of force used to effect a particular seizure.”).

The physiological effects, the high levels of pain, and fore-

seeable risk of physical injury lead us to conclude that the

X26 and similar devices are a greater intrusion than other

non-lethal methods of force we have confronted. In Headwa-

ters, we held that a jury could conclude that pepper spray was

6

“Lethal force” is force that creates a substantial risk of death or serious

bodily injury. See Smith v. City of Hemet, 394 F.3d 689, 705-07 (9th Cir.

2005) (en banc).

7

We recognize, however, that like any generally non-lethal force, the

taser is capable of being employed in a manner to cause the victim’s death.

See, e.g., Oliver v. Fiorino, 586 F.3d 898, 906 (11th Cir. 2009).

8896 BRYAN v. MACPHERSON

more than a “minimal intrusion” as it caused “intense pain

. . . , an involuntary closing of the eyes, a gagging reflex, and

temporary paralysis of the larynx.” 240 F.3d at 1200. We

rejected the district court’s characterization of pepper spray’s

intrusiveness as “merely the infliction of transient pain with-

out significant risk of physical injury.” Id. at 1199. We simi-

larly reject any contention that, because the taser results only

in the “temporary” infliction of pain, it constitutes a non-

intrusive level of force. The pain is intense, is felt throughout

the body, and is administered by effectively commandeering

the victim’s muscles and nerves. Beyond the experience of

pain, tasers result in “immobilization, disorientation, loss of

balance, and weakness,” even after the electrical current has

ended. Matta-Ballesteros v. Henman, 896 F.2d 255, 256 n.2

(7th Cir. 1990); see also Beaver v. City of Federal Way, 507

F. Supp. 2d 1137, 1144 (W.D. Wash. 2007) (“[A]fter being

tased, a suspect may be dazed, disoriented, and experience

vertigo.”). Moreover, tasering a person may result in serious

injuries when intense pain and loss of muscle control cause a

sudden and uncontrolled fall.

[5] The X26 thus intrudes upon the victim’s physiological

functions and physical integrity in a way that other non-lethal

uses of force do not. While pepper spray causes an intense

pain and acts upon the target’s physiology, the effects of the

X26 are not limited to the target’s eyes or respiratory system.

Unlike the police “nonchakus” we evaluated in Forrester v.

City of San Diego, 25 F.3d 804 (9th Cir. 1994), the pain deliv-

ered by the X26 is far more intense and is not localized, exter-

nal, gradual, or within the victim’s control. Id. at 807, 805 n.5.

In light of these facts, we agree with the Fourth and Eighth

Circuit’s characterization of a taser shot as a “painful and

frightening blow.” Orem v. Rephann, 523 F.3d 442, 448 (4th

Cir. 2008) (quoting Hickey, 12 F.3d at 757). We therefore

conclude that tasers like the X26 constitute an “intermediate

or medium, though not insignificant, quantum of force,”

Sanders v. City of Fresno, 551 F. Supp. 2d 1149, 1168 (E.D.

Cal. 2008); Beaver, 507 F. Supp. 2d at 1144 (“[T]he Court

BRYAN v. MACPHERSON 8897

first finds that the use of a Taser constituted significant

force.”).

[6] We recognize the important role controlled electric

devices like the Taser X26 can play in law enforcement. The

ability to defuse a dangerous situation from a distance can

obviate the need for more severe, or even deadly, force and

thus can help protect police officers, bystanders, and suspects

alike. We hold only that the X26 and similar devices consti-

tute an intermediate, significant level of force that must be

justified by “ ‘a strong government interest [that] compels the

employment of such force.’ ” Drummond ex rel. Drummond

v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir. 2003)

(quoting Deorle, 272 F.3d at 1280 (9th Cir. 2001)).

2. Governmental Interest in the Use of Force

[7] Under Graham v. Connor, we evaluate the govern-

ment’s interest in the use of force by examining three core

factors, “the severity of the crime at issue, whether the suspect

poses an immediate threat to the safety of the officers or oth-

ers, and whether he is actively resisting arrest or attempting

to evade arrest by flight.” 490 U.S. at 396; see also Deorle,

272 F.3d at 1280. These factors, however, are not exclusive.

Rather, we examine the totality of the circumstances and con-

sider “whatever specific factors may be appropriate in a par-

ticular case, whether or not listed in Graham.” Franklin v.

Foxworth, 31 F.3d 873, 876 (9th Cir. 1994). This analysis

allows us to “determine objectively ‘the amount of force that

is necessary in a particular situation.’ ” Deorle, 272 F.3d at

1280 (quoting Graham, 490 U.S. at 396-97). Viewing the

facts in the light most favorable to Bryan, the totality of the

circumstances here did not justify the deployment of the Taser

X26.

[8] The “most important” factor under Graham is whether

the suspect posed an “immediate threat to the safety of the

officers or others.” Smith v. City of Hemet, 394 F.3d 689, 702

8898 BRYAN v. MACPHERSON

(9th Cir. 2005) (en banc) (quoting Chew, 27 F.3d at 1441). “A

simple statement by an officer that he fears for his safety or

the safety others is not enough; there must be objective factors

to justify such a concern.” Deorle, 272 F.3d at 1281. The dis-

trict court correctly concluded that Bryan’s volatile, erratic

conduct could lead an officer to be wary. While Bryan’s

behavior created something of an unusual situation, this does

not, by itself, justify the use of significant force. “A desire to

resolve quickly a potentially dangerous situation is not the

type of governmental interest that, standing alone, justifies the

use of force that may cause serious injury.” Id. Rather, the

objective facts must indicate that the suspect poses an imme-

diate threat to the officer or a member of the public.

[9] We agree with the district court that Bryan did not pose

an immediate threat to Officer MacPherson or bystanders

despite his unusual behavior. It is undisputed that Bryan was

unarmed, and, as Bryan was only dressed in tennis shoes and

boxer shorts, it should have been apparent that he was

unarmed. Cf. id. at 1281 (“Deorle was wearing no shirt or

shoes, only a pair of cut-off jeans shorts. There was nowhere

for him to secrete any weapons.”). Although Bryan had

shouted expletives to himself while pulling his car over and

had taken to shouting gibberish, and more expletives, outside

his car, at no point did he level a physical or verbal threat

against Officer MacPherson. See Smith, 394 F.3d at 702-03

(recognizing that although the victim was shouting expletives,

there was no threat leveled against the officer). Bryan was

standing, without advancing, fifteen to twenty-five feet away

from Officer MacPherson between the door and body of the

car. We reject Officer MacPherson’s contention that Bryan

constituted a threat by taking a step in Officer MacPherson’s

direction. First, when explicitly asked if he “[took] a step out

of the car” or a “step out away from the car,” Bryan testified

“no.” There is, therefore, a genuine issue of fact on this point,

one that, on this procedural posture, we must resolve in

Bryan’s favor and conclude that Bryan did not advance

BRYAN v. MACPHERSON 8899

towards the officer.8 Second, even if Bryan had taken a single

step toward Officer MacPherson, this would not have ren-

dered him an immediate threat justifying an intermediate level

of force, as he still would have been roughly nineteen to

twenty-four feet away from Officer MacPherson, by the offi-

cer’s own estimate.

[10] Not only was Bryan standing, unarmed, at a distance

of fifteen to twenty-five feet, but the physical evidence dem-

onstrates that Bryan was not even facing Officer MacPherson

when he was shot: One of the taser probes lodged in the side

of Bryan’s arm, rather than in his chest, and the location of

the blood on the pavement indicates that he fell away from the

officer, rather than towards him.9 An unarmed, stationary

individual, facing away from an officer at a distance of fifteen

to twenty-five feet is far from an “immediate threat” to that

officer. Nor was Bryan’s erratic, but nonviolent, behavior a

potential threat to anyone else, as there is no indication that

there were pedestrians nearby or traffic on the street at the

time of the incident.10 Finally, while confronting Bryan, Offi-

cer MacPherson had unholstered and charged his X26, plac-

8

Counsel for Officer MacPherson argued that there is no genuine issue

regarding whether Bryan took a step towards Officer MacPherson on the

basis of Bryan’s response to the question of “Did you move your feet in

any way?” Bryan answered, “I don’t think so.” There are, however, any

number of ways one can move one’s feet without taking a “step.” Because

Bryan specifically denied taking a step when expressly asked, we find a

genuine issue exists as to this fact.

9

Officer MacPherson’s deposition testimony only bolsters this conclu-

sion. He testified that Bryan fell “faced forward” onto the pavement while

Bryan similarly testified that he fell straight forward.

10

Officer MacPherson testified in his deposition that the intersection

where he tasered Bryan does not have a lot of traffic on it early on Sunday

mornings and that he did not remember the presence of any traffic on the

specific morning in question. Other than Bryan, his younger brother, and

Officer MacPherson, the record indicates that the only individuals near the

scene were an individual playing tennis nearby and a jogger located across

the street. Their declarations indicate that they were fifty to seventy-five

feet and forty feet away, respectively.

8900 BRYAN v. MACPHERSON

ing him in a position to respond immediately to any change

in the circumstances. The circumstances here show that Offi-

cer MacPherson was confronted by, at most, a disturbed and

upset young man, not an immediately threatening one.

Officer MacPherson relies heavily on the Eleventh Circuit

opinion in Draper v. Reynolds, 369 F.3d 1270 (11th Cir.

2004), which addressed the use of a taser during the arrest of

an aggressive, argumentative individual. Although we do not

adopt Draper as the law of this circuit, the present case is

clearly distinguishable from the one before the Eleventh Cir-

cuit. Unlike Bryan, who was yelling gibberish and gave no

sign of hearing or understanding Officer MacPherson’s

orders, it was undisputed in Draper that Draper heard and

understood the officer’s commands, and not only failed to

comply, but engaged the officer in an increasingly heated

argument. Id. at 1273. Four times the officer asked Draper to

retrieve paperwork from the cab of his truck and four times

Draper heard the officer, turned toward the truck to comply,

but then turned around, walked back toward the officer and

loudly accused the officer of “harassing” and “disrespecting”

him, displaying a growing belligerence. Id. It was not until the

fifth time that the officer requested the paperwork and Draper

refused to comply, yelled at the officer, and paced toward him

in agitation that the officer resorted to the taser. Id. The Elev-

enth Circuit determined that a verbal arrest command (when

Draper had refused to comply with the first five commands)

accompanied by an attempt to physically handcuff Draper “in

these particular circumstances, may well have or would likely

have escalated a tense and difficult situation into a serious

physical struggle, in which either Draper or [the officer]

would be seriously hurt.” Id. at 1278.

Bryan never addressed, let alone argued with, Officer Mac-

Pherson once he left his car. In addition, whereas Bryan

remained stationary at a distance of approximately twenty

feet, or at most took a single step forward, Draper was located

close to the officer and pacing in an agitated fashion while

BRYAN v. MACPHERSON 8901

arguing with him. Id. Thus, the officer in Draper was con-

fronting a belligerent, argumentative individual who was

angrily pacing within feet of his position. Officer MacPher-

son, by contrast, was confronted with a half naked, unarmed,

stationary, apparently disturbed individual shouting gibberish

at a distance of approximately twenty feet. The only similarity

to the factual circumstances in Draper is that both Draper and

Bryan were stopped for a traffic violation, were loud, and

were tasered by the police.

[11] The severity of Bryan’s purported offenses “pro-

vide[ ] little, if any, basis for [Officer MacPherson’s] use of

physical force.” Smith, 394 F.3d at 702. It is undisputed that

Bryan’s initial “crime” was a mere traffic infraction—failing

to wear a seatbelt—punishable by a fine. Traffic violations

generally will not support the use of a significant level of

force. See Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir.

2009) (“Deville was stopped for a minor traffic violation . . .

making the need for force substantially lower than if she had

been suspected of a serious crime.”). Officer MacPherson also

claims that he reasonably believed Bryan had committed three

misdemeanors—resisting a police officer, failure to comply

with a lawful order, and using or being under the influence of

any controlled substance11— and that these constitute “serious

—and dangerous—criminal activity.” We disagree with Offi-

cer MacPherson’s assessment. While “the commission of a

misdemeanor offense is ‘not to be taken lightly,’ it militates

against finding the force used to effect an arrest reasonable

where the suspect was also nonviolent and ‘posed no threat to

the safety of the officers or others.’ ” Headwaters, 240 F.3d

at 1204 (quoting Hammer v. Gross, 932 F.2d 842, 846 (9th

11

Cal. Veh. Code § 2800(a) (making it a misdemeanor to willfully fail

or refuse to comply with an order of a peace officer); Cal. Health & Safety

Code § 11550 (making it unlawful to “use, or be under the influence of

any controlled substance”); Cal. Penal Code § 148 (punishing every indi-

vidual “who willfully resists, delays, or obstructs any public officer . . .

in the discharge . . . of his or her office” with a fine up to $1000 or up

to 1 year in a county jail).

8902 BRYAN v. MACPHERSON

Cir. 1991)). None of the offenses for which Bryan was cited

or of which he was suspected is inherently dangerous or vio-

lent, and as already discussed, Bryan posed little to no safety

threat. Cf. Parker v. Gerrish, 547 F.3d 1, 9 (1st Cir. 2008)

(“Though driving while intoxicated is a serious offense, it

does not present a risk of danger to the arresting officer that

is presented when an officer confronts a suspect engaged in

an offense like robbery or assault.”). Therefore, there was no

substantial government interest in using significant force to

effect Bryan’s arrest for these misdemeanor violations that

even the State of California has determined are minor.12 Cf.

Miller v. Clark County, 340 F.3d 959, 964 (9th Cir. 2003)

(finding a felony to be “by definition a crime deemed serious

by the state”).

[12] Officer MacPherson now argues that use of the taser

was justified because he believed Bryan may have been men-

tally ill and thus subject to detention. To the contrary: if Offi-

cer MacPherson believed Bryan was mentally disturbed he

should have made greater effort to take control of the situation

through less intrusive means. As we have held, “[t]he prob-

lems posed by, and thus the tactics to be employed against, an

unarmed, emotionally distraught individual who is creating a

disturbance or resisting arrest are ordinarily different from

those involved in law enforcement efforts to subdue an armed

and dangerous criminal who has recently committed a serious

offense.” Deorle, 272 F.3d at 1282-83. Although we have

refused to create two tracks of excessive force analysis, one

for the mentally ill and one for serious criminals, we have

found that even “when an emotionally disturbed individual is

‘acting out’ and inviting officers to use deadly force to subdue

12

Our sister circuits have likewise concluded that misdemeanors are rel-

atively minor and will generally not support the deployment of significant

force. See, e.g., Fogarty v. Gallegos, 523 F.3d 1147, 1160 (10th Cir.

2008); Reese v. Herbert, 527 F.3d 1253, 1274 (11th Cir. 2008). In addi-

tion, we have previously suggested that felonies not involving violence

provide limited support for the use of significant force under Graham. See

Meredith, 342 F.3d at 1063; Chew, 27 F.3d at 1442-43 & n.9.

BRYAN v. MACPHERSON 8903

him, the governmental interest in using such force is dimin-

ished by the fact that the officers are confronted . . . with a

mentally ill individual.” Id. at 1283. The same reasoning

applies to intermediate levels of force. A mentally ill individ-

ual is in need of a doctor, not a jail cell, and in the usual case

—where such an individual is neither a threat to himself nor

to anyone else—the government’s interest in deploying force

to detain him is not as substantial as its interest in deploying

that force to apprehend a dangerous criminal. Moreover, the

purpose of detaining a mentally ill individual is not to punish

him, but to help him. The government has an important inter-

est in providing assistance to a person in need of psychiatric

care; thus, the use of force that may be justified by that inter-

est necessarily differs both in degree and in kind from the use

of force that would be justified against a person who has com-

mitted a crime or who poses a threat to the community. Thus,

whether Officer MacPherson believed that Bryan had com-

mitted a variety of nonviolent misdemeanors or that Bryan

was mentally ill, this Graham factor does not support the

deployment of an intermediate level of force.

Turning to Bryan’s “resistance,” we note that Bryan in fact

complied with every command issued by Officer MacPherson

except the one he asserts he did not hear—to remain in the

car. Even if Bryan failed to comply with the command to

remain in his vehicle, such noncompliance does not constitute

“active resistance” supporting a substantial use of force. Fol-

lowing the Supreme Court’s instruction in Graham, we have

drawn a distinction between passive and active resistance. See

Forrester, 25 F.3d at 805 (finding that protestor’s “remaining

seated, refusing to move, and refusing to bear weight” despite

police orders to the contrary constituted “passive resistance”);

see also Headwaters, 276 F.3d at 1130-31 (finding that prote-

stors, who were chained together with devices and refused to

exit a building when ordered, passively resisted).

By shouting gibberish and hitting himself in the quadriceps,

Bryan may not have been perfectly passive. “Resistance,”

8904 BRYAN v. MACPHERSON

however, should not be understood as a binary state, with

resistance being either completely passive or active. Rather,

it runs the gamut from the purely passive protestor who sim-

ply refuses to stand, to the individual who is physically

assaulting the officer. We must eschew ultimately unhelpful

blanket labels and evaluate the nature of any resistance in

light of the actual facts of the case. For example, in Smith v.

City of Hemet, we confronted an individual who “continually

ignored” officer commands to remove his hands from his

pockets and to not re-enter his home. In addition, he “physi-

cally resisted . . . for only a brief time.” 394 F.3d at 703.

Although Smith was not perfectly passive in the encounter,

we stated that it did not appear “that Smith’s resistance was

particularly bellicose” and thus found that this factor provided

little support for a use of significant force. Id. Even purely

passive resistance can support the use of some force, but the

level of force an individual’s resistance will support is depen-

dent on the factual circumstances underlying that resistance.

[13] Reviewing Bryan’s conduct, we conclude that even if

we were to consider his degree of compliance solely from the

officer’s subjective point of view, this case would be closer

to the passive resistance we confronted in Forrester and

Headwaters or the minor resistance in Smith, than it would be

to truly active resistance. The only resistance Officer Mac-

Pherson testified to was a failure to comply with his order that

Bryan remain in his car. Shouting gibberish and hitting one’s

quadriceps is certainly bizarre behavior, but such behavior is

a far cry from actively struggling with an officer attempting

to restrain and arrest an individual. Compare Abdullahi v. City

of Madison, 423 F.3d 763, 776 (7th Cir. 2005) (involving an

arrestee swinging a belt at an officer and “strenuously resist[-

ing]” as the police attempted to handcuff him); McCormick v.

City of Fort Lauderdale, 333 F.3d 1234, 1241-42 (11th Cir.

2003) (involving an arrestee engaging and advancing on offi-

cers with a stick); Jackson v. City of Bremerton, 268 F.3d

646, 653 (9th Cir. 2001) (involving an individual interfering

with an attempted arrest of an individual by engaging the offi-

BRYAN v. MACPHERSON 8905

cer in a “melee”). As in Smith, Bryan’s “resistance” was not

“particularly bellicose.” Smith, 394 F.3d at 703. Indeed, when

we view the facts in the light most favorable to Bryan, as we

must at this stage of the proceedings, his conduct does not

constitute resistance at all.13

[14] Two additional considerations militate against finding

Officer MacPherson’s use of force reasonable. First, it is

undisputed that Officer MacPherson failed to warn Bryan that

he would be shot with the X26 if he did not comply with the

order to remain in his car.14 We recognized in Deorle that

police officers normally provide such warnings where feasi-

ble, even when the force is less than deadly, and that the fail-

ure to give such a warning is a factor to consider. See 272

F.3d at 1284; see also Jackson, 268 F.3d at 653 (finding that

the officer’s “safety interest” “increased further when the

group was warned by police that a chemical irritant would be

used if they did not move back . . . and the group refused to

comply”). Here, it was feasible to give a warning that the use

of force was imminent if Bryan did not comply. While a

warning to Bryan may or may not have caused him to comply,

there was “ample time to give that order or warning and no

reason whatsoever not to do so.” Deorle, 272 F.3d at 1284.

[15] Second, we have held that police are “required to con-

sider ‘[w]hat other tactics if any were available’ to effect the

arrest.” Headwaters, 240 F.3d at 1204 (quoting Chew, 27 F.3d

13

The jury may credit Bryan’s testimony that he did not hear the offi-

cer’s order to remain in the car. The evidence suggests that Bryan thought

the officer would again approach from the passenger side of his car and

that Bryan turned to face that way. That the officer was instead yards away

in the other direction may have prevented Bryan from hearing the com-

mands.

14

Officer MacPherson now argues that he did warn Bryan. However,

Officer MacPherson’s own testimony belies this claim. Officer MacPher-

son has consistently testified that he repeatedly ordered Bryan to remain

in his vehicle. This clearly constitutes a command, but it hardly warns him

that if he failed to return to his car he would be shot with a taser.

8906 BRYAN v. MACPHERSON

at 1443).15 Officer MacPherson argues that there were no less

intrusive alternatives available to apprehend Bryan. Objec-

tively, however, there were clear, reasonable, and less intru-

sive alternatives. Officer MacPherson knew additional

officers were en route to the scene. He was, or should have

been, aware that the arrival of those officers would change the

tactical calculus confronting him, likely opening up additional

ways to resolve the situation without the need for an interme-

diate level of force. Thus, while by no means dispositive, that

Officer MacPherson did not provide a warning before deploy-

ing the X26 and apparently did not consider less intrusive

means of effecting Bryan’s arrest factor significantly into our

Graham analysis.

3. Balancing the Competing Interests

[16] Our review of the Graham factors reveals that the

government had, at best, a minimal interest in the use of force

against Bryan. This interest is insufficient to justify the use of

an intermediate level of force against an individual. We are

cognizant of the Supreme Court’s command to evaluate an

officer’s actions “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 also recognize the reality that

“police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force that is necessary

in a particular situation.” Id. at 397. This does not mean, how-

ever, that a Fourth Amendment violation will be found only

in those rare instances where an officer and his attorney are

unable to find a sufficient number of compelling adjectives to

15

We do not challenge the settled principle that police officers need not

employ the “least intrusive” degree of force possible. See Gregory v.

County of Maui, 523 F.3d 1103, 1107 (9th Cir. 2008) (citing Forrester, 25

F.3d at 807-08). We merely recognize the equally settled principle that

officers must consider less intrusive methods of effecting the arrest and

that the presence of feasible alternatives is a factor to include in our analy-

sis.

BRYAN v. MACPHERSON 8907

describe the victim’s conduct. Nor does it mean that we can

base our analysis on what officers actually felt or believed

during an incident. Rather, we must ask if the officers’ con-

duct is “ ‘objectively reasonable’ in light of the facts and cir-

cumstances confronting them” without regard for an officer’s

subjective intentions. Id.

[17] We thus conclude that the intermediate level of force

employed by Officer MacPherson against Bryan was exces-

sive in light of the governmental interests at stake. Bryan

never attempted to flee. He was clearly unarmed and was

standing, without advancing in any direction, next to his vehi-

cle. Officer MacPherson was standing approximately twenty

feet away observing Bryan’s stationary, bizarre tantrum with

his X26 drawn and charged. Consequently, the objective facts

reveal a tense, but static, situation with Officer MacPherson

ready to respond to any developments while awaiting back-

up. Bryan was neither a flight risk, a dangerous felon, nor an

immediate threat. Therefore, there was simply “no immediate

need to subdue [Bryan]” before Officer MacPherson’s fellow

officers arrived or less-invasive means were attempted.

Deorle, 272 F.3d at 1282; see also, Blankenhorn v. City of

Orange, 485 F.3d 463, 480 (9th Cir. 2007) (“ ‘[I]t is the need

for force which is at the heart of the Graham factors’ ” (quot-

ing Liston v. County of Riverside, 120 F.3d 965, 976 (9th Cir.

1997))). Officer MacPherson’s desire to quickly and deci-

sively end an unusual and tense situation is understandable.

His chosen method for doing so violated Bryan’s constitu-

tional right to be free from excessive force.

B. Did Officer MacPherson Violate Bryan’s Clearly

Established Rights?

[18] Having concluded that Officer MacPherson’s actions

violated Bryan’s Fourth Amendment rights, we next must ask

whether his conduct “violate[d] clearly established statutory

or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

8908 BRYAN v. MACPHERSON

(1982). If an officer’s use of force was “premised on a rea-

sonable belief that such force was lawful,” the officer will be

granted immunity from suit, notwithstanding the fact exces-

sive force was deployed. Deorle, 272 F.3d at 1285; see also

Saucier, 533 U.S. at 202 (asserting that the qualified immu-

nity analysis asks “whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he con-

fronted”). We must, therefore, turn to the state of the law at

the time Officer MacPherson tasered Bryan to determine

whether Officer MacPherson reasonably could have believed

his use of the taser against Bryan was constitutional. See Sau-

cier, 533 U.S. at 202.

[19] All of the factors articulated in Graham—along with

our recent applications of Graham in Deorle and Headwaters

—placed Officer MacPherson on fair notice that an intermedi-

ate level of force was unjustified. See Fogarty v. Gallegos,

523 F.3d 1147, 1162 (10th Cir. 2008) (“Considering that

under Fogarty’s version of events each of the Graham factors

lines up in his favor, this case is not so close that our prece-

dents would fail to portend the constitutional unreasonable-

ness of defendants’ alleged actions.”); Boyd v. Benton County,

374 F.3d 773, 781 (9th Cir. 2004) (asking whether “a reason-

able officer would have had fair notice that the force

employed was unlawful”). Officer MacPherson stopped

Bryan for the most minor of offenses. There was no reason-

able basis to conclude that Bryan was armed. He was twenty

feet away and did not physically confront the officer. The

facts suggest that Bryan was not even facing Officer Mac-

Pherson when he was shot. A reasonable officer in these cir-

cumstances would have known that it was unreasonable to

deploy intermediate force.

[20] We do not need to find closely analogous case law to

show that a right is clearly established. Moreno v. Baca, 431

F.3d 633, 641 (9th Cir. 2005); see also Hope v. Pelzer, 536

U.S. 730, 741 (2002) (“[O]fficials can still be on notice that

their conduct violates established law even in novel factual

BRYAN v. MACPHERSON 8909

circumstances.”); Oliver, 586 F.3d at 907 (finding that a right

can be clearly established where the officer’s conduct “lies so

obviously at the very core of what the Fourth Amendment

prohibits that the unlawfulness of the conduct was readily

apparent to [the officer], notwithstanding the lack of fact-

specific case law”). However, as of July 24, 2005, there was

no Supreme Court decision or decision of our court address-

ing whether the use of a taser, such as the Taser X26, in dart

mode constituted an intermediate level of force. Indeed,

before that date, the only statement we had made regarding

tasers in a published opinion was that they were among the

“variety of non-lethal ‘pain compliance’ weapons used by

police forces.” San Jose Charter of Hells Angels Motorcycle

Club, 402 F.3d at 969 n.8. And, as the Eighth Circuit has

noted, “[t]he Taser is a relatively new implement of force, and

case law related to the Taser is developing.” Brown v. City of

Golden Valley, 574 F.3d 491, 498 n.5 (8th Cir. 2009). Two

other panels have recently, in cases involving different cir-

cumstances, concluded that the law regarding tasers is not suf-

ficiently clearly established to warrant denying officers

qualified immunity. Mattos v. Agarano, 590 F.3d 1082, 1089-

90 (9th Cir. 2010); Brooks v. City of Seattle, 599 F.3d 1018,

1031 n.18 (9th Cir. 2010).

[21] Based on these recent statements regarding the use of

tasers, and the dearth of prior authority, we must conclude

that a reasonable officer in Officer MacPherson’s position

could have made a reasonable mistake of law regarding the

constitutionality of the taser use in the circumstances Officer

MacPherson confronted in July 2005. Accordingly, Officer

MacPherson is entitled to qualified immunity. See Ctr. for

Bio-Ethical Reform v. Los Angeles County Sheriff Dept., 533

F.3d 780, 794 (9th Cir. 2008).

CONCLUSION

Viewing the facts, as we must, in the light most favorable

to Bryan, we conclude, for the purposes of summary judg-

8910 BRYAN v. MACPHERSON

ment, that Officer MacPherson used unconstitutionally exces-

sive force. However, a reasonable officer confronting the

circumstances faced by Officer MacPherson on July 24, 2005,

could have made a reasonable mistake of law in believing the

use of the taser was reasonable. Accordingly we REVERSE

the district court’s denial of summary judgment on the basis

of qualified immunity.

REVERSED.