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-

LAB-CAB

POLICE DEPARTMENT; CITY OF

CORONADO, a municipal ORDER AND

corporation, OPINION

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 November 30, 2010

Before: Harry Pregerson, Stephen Reinhardt and

Kim McLane Wardlaw, Circuit Judges.

Order;

Concurrence to Order by Judge Wardlaw;

Dissent to Order by Judge Tallman;

Opinion by Judge Wardlaw

18883

BRYAN v. MACPHERSON 18887

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.

ORDER

The opinion filed on June 18, 2010, and reported at 608

F.3d 614, is hereby withdrawn. The clerk shall file the

attached superseding opinion.

Having considered the opinion as amended, the panel has

unanimously voted to deny the Petition for Panel Rehearing

and the Petition for Rehearing En Banc.

The full court was advised of the Petition for Rehearing En

Banc and a judge of the court requested a vote on whether to

rehear the case en banc. The en banc call failed to receive a

majority of votes by active judges in favor of en banc consid-

eration. Fed. R. App. P. 35.

18888 BRYAN v. MACPHERSON

The Petition for Panel Rehearing and the Petition for

Rehearing En Banc are DENIED. No further petitions for

rehearing or for rehearing en banc may be filed.

WARDLAW, Circuit Judge, joined by Judges PREGERSON,

REINHARDT, and W. FLETCHER, concurring in the denial

of rehearing en banc:

The panel paid the “require[d] careful attention to the facts

and circumstances of [this] case, including the severity of the

crime at issue, whether the suspect pose[d] an immediate

threat to the safety of the officers or others, and whether he

[was] actively resisting arrest or attempting to evade arrest by

flight,” Graham v. Connor, 490 U.S. 386, 396 (1989). We

concluded that Officer Brian MacPherson used excessive

force when, on July 24, 2005, he deployed his X26 taser in

dart mode to apprehend Carl Bryan for a seatbelt infraction,

where Bryan was obviously and noticeably unarmed, made no

threatening statements or gestures, did not resist arrest or

attempt to flee, but was standing inert twenty to twenty-five

feet away from the officer. See Bryan v. MacPherson, 608

F.3d 614, 618 (9th Cir. 2010). At the heart of our holding was

the conclusion that the X26 taser and similar devices, when

used in dart mode, constitute an “intermediate, significant

level of force that must be justified by the governmental inter-

est involved.” Id. at 622. We nonetheless concluded that Offi-

cer MacPherson was entitled to qualified immunity from

Bryan’s 42 U.S.C. § 1983 suit, because this principle was not

clearly established in 2005 when Officer MacPherson

deployed his dart gun on Bryan. See id. at 629. A majority of

the active judges of our court voted against rehearing en banc,

and I concur.

The opinion accurately recites the factual record and we

need not repeat it here. See id. at 618-19. Although the panel’s

original opinion affirmed the district court’s denial of quali-

BRYAN v. MACPHERSON 18889

fied immunity, Officer MacPherson and amici curiae League

of California Cities and California State Association of Coun-

ties suggested we reconsider given that two other taser cases

arising from incidents that occurred about the same time as

Bryan’s tasing were pending in our circuit. We did so, and,

although we did not alter our holding that Officer MacPher-

son used excessive force on Bryan, we concluded that, based

on “recent statements [in other circuit opinions] regarding the

use of tasers, and the dearth of prior authority,” 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 con-

fronted in July 2005.” Id. at 629. After the panel filed its

amended opinion, only Bryan petitioned for panel rehearing

or rehearing en banc. Officer MacPherson opposed Bryan’s

petition, arguing that the panel had correctly applied the law

of qualified immunity. In other words, our current decision is

a denial of Bryan’s — and not Officer MacPherson’s — peti-

tion for rehearing en banc.

After mischaracterizing the record, misstating our holding,

and attacking our opinion for language it does not in fact con-

tain, Judge Tallman ultimately bases his dissent to our deci-

sion against rehearing en banc upon the largely unsupported

and nonsensical belief that use of a device designed to fire a

dart up to one-half inch into bare skin and deliver a 1200 volt

charge somehow does not constitute an intermediate use of

force. He cites no intra-circuit conflict created by our deci-

sion, but instead asserts that we erred by quoting binding cir-

cuit precedent. He cites no inter-circuit conflict created by our

decision, but instead faults us for joining the growing national

judicial consensus that tasers in dart mode constitute an inter-

mediate level of force. More strikingly, he fails to tell the

public that our court has simultaneously chosen to rehear the

two other taser cases en banc — not because those opinions

disagreed with the intermediate-level-of-force conclusion in

Bryan, for they did not — but instead to reconsider how best

to balance “the nature and quality of the intrusion on the indi-

18890 BRYAN v. MACPHERSON

vidual’s Fourth Amendment interests” against “the counter-

vailing governmental interests at stake” as required by

Graham, 490 U.S. at 396. See Brooks v. City of Seattle, 599

F.3d 1018 (9th Cir. 2010), rehr’g en banc granted by ___

F.3d __, 2010 WL 3896202 (9th Cir. Sep 30, 2010); Mattos

v. Agarano, 590 F.3d 1082 (9th Cir. 2010), rehr’g en banc

granted by ___ F.3d ___, 2010 WL 3931122 (9th Cir. Oct 04,

2010).1

I.

Our conclusion that use of the X26 taser and similar

devices in dart mode constitutes an “intermediate, significant

level of force that must be justified by the governmental inter-

est involved,” Bryan, 608 F.3d at 622, falls well within the

national mainstream of the decisions which have examined

the nature and quality of the intrusion posed by tasers. Most

recently, the Tenth Circuit (Judges Kelly, Brorby, and Gor-

such) concluded that the use of a taser gun like the one at

issue here “against a non-violent misdemeanant who appeared

to pose no threat and who was given no warning” was uncon-

1

In Brooks, Judges Hall and O’Scannlain properly distinguished tasers

employed in stun mode as opposed to dart mode. Citing Bryan, the panel

majority observed that a taser in “dart” mode is an intermediate level of

force, and recognized that “[o]ther circuit and district court decisions have

also found the Taser dart application to be an intermediate amount of

force.” Brooks, 599 F.3d at 1027 n.13. In Mattos, the three-judge panel

(Chief Judge Kozinski, Judge Bybee, and Judge Callahan), addressing the

nature and quality of the intrusion resulting from use of a taser in dart

mode, noted “[w]e are left with evidence that the Taser, in general, is more

than a non-serious or trivial use of force but less than deadly force” and

stated “we have no difficulty concluding that the Taser stun was a serious

intrusion into the core of the interests protected by the Fourth Amend-

ment: the right to be ‘secure in [our] persons.’ ” Mattos, 590 F.3d at 1087

(quoting U.S. Const. amend. IV). In neither decision did the panel find the

use of force to be excessive, based upon consideration of the facts unique

to each case, and the issue to be determined by the en banc panel is

whether that assessment was correct. These appeals have been consoli-

dated for rehearing on December 14, 2010.

BRYAN v. MACPHERSON 18891

stitutional excessive force under Graham, for which the offi-

cer did not enjoy qualified immunity. Cavanaugh v. Woods

Cross City, ___ F.3d ___, 2010 WL 4332289, at *2-4 (10th

Cir. 2010). Citing our decision in Bryan, Judge Kelly wrote

Although Tasers may not constitute deadly force,

their use unquestionably “seizes” the victim in an

abrupt and violent manner. Accordingly, the “nature

and quality” of the intrusion into the interests of Ms.

Cavanaugh protected by the Fourth Amendment was

quite severe.

Id. at *3. This follows upon numerous decisions agreeing that

the use of tasers is at least an intermediate, if nonlethal, level

of force. See, e.g., Oliver v. Fiorino, 586 F.3d 898, 903 (11th

Cir. 2009) (recognizing that the taser is “designed to cause

significant, uncontrollable muscle contractions”); Orem v.

Rephann, 523 F.3d 442, 447-48 (4th Cir. 2008) (rejecting the

contention that a taser constitutes a minor or de minimus level

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

(“We find defendants’ attempt, on appeal, to minimize the

pain of being shot with a stun gun . . . to be completely base-

less. The defendants’ own testimony reveals that a stun gun

inflicts a painful and frightening blow, which temporarily par-

alyzes the large muscles of the body, rendering the victim

helpless.”); Cavanaugh v. Woods Cross City, 2009 WL

4981591, at *5 (D. Utah Dec. 14, 2009) (“The Graham fac-

tors in this case clearly cautioned against a significant use of

force, such as the deployment of a taser.”); Crowell v. Kirk-

patrick, 667 F. Supp. 2d 391, 408 (D. Vt. 2009) (recognizing

that tasers have “been described by other courts as ‘moderate,

non-lethal force” and cause “acute — even severe — physical

pain”); Orsak v. Metro. Airports Comm’n, 675 F. Supp. 2d

944, 957-59 (D. Minn. 2009); Cyrus v. Town of Mukwonago,

2009 WL 1110413, at *21 (E.D. Wis. April 24, 2009) (“The

Court will view the use of a taser as an intermediate or

medium, though not insignificant, quantum of force . . . .”);

Kaady v. City of Sandy, 2008 WL 5111101, at *16 (D. Or.

18892 BRYAN v. MACPHERSON

Nov. 26, 2008) (“I therefore conclude that use of a Taser con-

stitutes an intermediate level of force and a significant intru-

sion on a victim’s Fourth Amendment rights.”); McDonald v.

Pon, 2007 WL 4420936, at *2 (W.D. Wash. Dec. 14, 2007)

(“Taser use is considered an intermediate control tactic.”);

Beaver v. City of Federal Way, 507 F. Supp. 2d 1137, 1144

(W.D. Wash. 2007) (“[T]he Court first finds that the use of a

Taser constituted significant force.”); Parker v. City of South

Portland, 2007 WL 1468658, at *22 (D. Me. May 18, 2007)

(“In the circumstances, the Taser fairly can be characterized

— as it has been by one court—as a significantly violent level

of force.”); DeSalvo v. City of Collinsville, 2005 WL

2487829, at *4 (S.D. Ill. Oct. 7, 2005). Indeed, Judge Tallman

fails to cite a single case in any circuit or district court sug-

gesting otherwise.

The growing national consensus that devices such as the

X26 when used in dart mode constitute an intermediate level

of force is also clearly reflected in national studies — includ-

ing the one study that Judge Tallman cites in his dissent —

and in the views of law enforcement professionals. See, e.g.,

William P. Bozeman et al., Safety and Injury Profile of Con-

ducted Electrical Weapons Used by Law Enforcement Offi-

cers Against Criminal Suspects, Annals of Emerg. Medicine,

April 2009, at 480 (“Conducted electrical weapons are one of

several intermediate force options available to officers faced

with violent or combative suspects.”); id. at 485 (“Prevention

of significant or fatal injuries is desirable and an important

consideration in discussion of the safety of intermediate force

options, including conducted electrical weapons.”).

Police research organizations also agree that tasers are at

least an intermediate level of force. Canadian Police Research

Centre, Review of Conducted Energy Devices 25 (Aug. 22,

2005) (“[Controlled Electric Devices] are considered interme-

diate weapons in the North American, law enforcement, use

of force vernacular.”), http://www.css.drdc-rddc.gc.ca/cprc/tr/

tr-2006-01.pdf; see also Merrick Bobb et. al, Police Assess-

BRYAN v. MACPHERSON 18893

ment Resource Center, A Bad Night at Powell Library: The

Events of November 14, 2006, at 75 (“[T]he shock from a

Taser constitutes a significant and painful use of force

. . . .”).

Tellingly, in a 2005 report on the use of tasers in seven

selected law enforcement agencies, the United States Govern-

ment Accountability Office (GAO) found that six of the seven

agencies permitted taser use only when situations had reached

the third (“Volatile”) and fourth (“Harmful”) levels of the

five-level FLETC (Federal Law Enforcement Training Cen-

ter) Use-of-Force Continuum, which permit the use of “Com-

pliance techniques” and “Defensive tactics” respectively.

GAO., Taser Weapons: Use of Tasers by Selected Law

Enforcement Agencies, at 7-10 (May 2005),

http://www.gao.gov/new.items/d05464.pdf. In other words,

these six agencies classified tasers as intermediate levels of

force. (Once a situation has reached the fifth (“Lethal”) level,

officers are permitted to use deadly force in response. Id. at

8.)

II.

Because Officer MacPherson raised an interlocutory appeal

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

basis of qualified immunity, we were bound by the procedural

posture to view the facts in the light most favorable to the

non-moving party (here Bryan), and then to ask “whether the

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

facts and circumstances confronting them.” Bryan, 608 F.3d

at 620 (quoting Graham, 490 U.S. at 397). In doing so, we

remained “cognizant of the Supreme Court’s command to

evaluate an officer’s actions ‘from the perspective of a rea-

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

of hindsight.’ ” Id. at 627-28 (quoting Graham, 490 U.S. at

396). We concluded that, even viewing the facts from Officer

MacPherson’s perspective, the “intermediate level of force

employed by Officer MacPherson against Bryan was exces-

18894 BRYAN v. MACPHERSON

sive” in light of the facts that Bryan had complied with Offi-

cer MacPherson’s instructions to pull over based on a minor

seatbelt infraction, never attempted to flee, was clearly

unarmed, and was standing, without advancing in any direc-

tion, next to his vehicle, while Officer MacPherson was stand-

ing “approximately twenty feet away observing Bryan’s

stationary, bizarre tantrum with his X26 drawn and charged.”

Id. at 628. Judge Tallman quibbles with the facts on which we

relied and claims that we incorrectly viewed those facts from

Bryan’s perspective — but the sole example he offers of our

supposed judicial astigmatism, our acceptance of the district

court’s factual determination that “there was no clear indica-

tion” that Bryan heard or understood, is “categorically unre-

viewable on interlocutory appeal.” Eng v. Cooley, 552 F.3d

1062, 1067 (9th Cir. 2009); see also Bryan v. McPherson,

2008 WL 904906, at *3 (S.D. Cal. Apr. 3, 2008) (“While

Plaintiff was apparently ignoring McPherson’s instructions,

there was no clear indication he heard or understood the

instructions . . . .”).

III.

We based our holding that use of an X26 taser or similar

device in dart mode — not, as Judge Tallman misleadingly

suggests, the use of “all tasers” — constitutes an intermediate

use of force on uncontested and uncontroversial descriptions

in the record and in case law describing how tasers are

designed to operate, rather than solely on the injury that

Bryan himself suffered when he fell to the pavement and

smashed his face and teeth. See, e.g., Bryan, 608 F.3d at 620

(citing Lewis v. Downey, 581 F.3d 467, 475 (7th Cir. 2009);

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

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

Indeed, one of the sources of our information on how the X26

taser functions was the manufacturer itself. See Taser Int’l,

General Faqs, http://www.taser.com/research/Pages/FAQ

General.aspx. Taser International explains that its

BRYAN v. MACPHERSON 18895

TASER devices utilize compressed nitrogen to proj-

ect two small probes up to various ranges . . . at a

speed of over 160 feet per second. These probes are

connected to the TASER device by insulated wires.

An electrical signal is transmitted through the wires

to where the probes make contact with the body or

clothing, resulting in an immediate loss of the per-

son’s neuromuscular control and the ability to per-

form coordinated action for the duration of the

impulse.

IV.

In concluding that Officer MacPherson used excessive

force when he tased Bryan, we explicitly recognized and

applied both the “settled principle that police officers need not

employ the ‘least intrusive’ degree of force,” Bryan, 608 F.3d

at 627 n.15 (citing Gregory v. County of Maui, 523 F.3d 1103,

1107 (9th Cir. 2008)), and the equally clear rule that “the

presence of feasible alternatives is a factor to include in our

analysis.” Id. at 627; see also, e.g., Smith v. City of Hemet,

394 F.3d 689, 701 (9th Cir. 2005) (en banc); Headwaters For-

est Def. v. County of Humboldt, 240 F.3d 1185, 1205 (9th Cir.

2000), vacated and remanded on other grounds sub nom.

County of Humboldt v. Headwaters Forest Def., 534 U.S. 801

(2001). We see no conflict between the rule that an officer

need not use the least intrusive means in apprehending a sus-

pect and the concept that there are nonetheless circumstances

in which an officer who does not use the least intrusive means

might use a level of force that cannot be justified. Judge Tall-

man’s only concern with the standard we applied is our cite

to our nine-year-old decision in Deorle v. Rutherford, 272

F.3d 1272 (9th Cir. 2001). Deorle in fact remains good law,

in part because the Supreme Court denied certiorari.2 We cited

2

At the time Deorle was filed, a judge of our court sought but failed to

secure rehearing en banc. See Deorle, 272 F.3d at 1274-75. The United

States Supreme Court then denied Butte County Deputy Sheriff Greg

18896 BRYAN v. MACPHERSON

Deorle, along with other opinions, for the obvious principle

that the use of force by law enforcement must be justified by

an appropriate government interest. Judge Tallman specifi-

cally objects to the fact that now-withdrawn versions of our

Bryan opinion quoted language from Deorle and Drummond

with which he disagrees, but the amended opinion no longer

relies upon the language to which he objects. It is puzzling,

to say the least, that Judge Tallman continues to rail against

Bryan for something the opinion does not say.

V.

There is an obvious and critical distinction between con-

cluding (as did one study cited by the dissent) that tasers

cause “mild” (rather than “serious” or “fatal”) injuries on the

one hand and suggesting that tasers cause no injuries on the

other. See, e.g., Bozeman et al., supra, at tbl.5 (finding that

injuries characterized as “mild” occur roughly a quarter of a

time). Most of the “mild” injuries described in this study

“were superficial puncture wounds” from the taser darts, but

the fact that puncture wounds through the skin are classified

as “superficial” rather than as “serious” or “life-threatening”

does not mean that such wounds are insignificant. In fact,

such “superficial” barbed dart injuries have the potential to be

quite significant. See, e.g., GAO, supra at 6-7 (“If the barbs

penetrate the skin, it is impossible to predict how deeply they

will embed . . . . The manufacturer estimated that the barbs

will generally penetrate bare skin no more than half an

inch.”); National Institute of Justice, Study of Deaths Follow-

ing Electro Muscular Disruption: Interim Report, at 3,

http://www.ncjrs.gov/pdffiles1/nij/222981.pdf (June 2008)

Rutherford’s petition for certiorari. Rutherford v. Deorle, 536 U.S. 958

(2002). Our court again voted against rehearing a decision that relied upon

Deorle’s language, Drummond ex rel. Drummond v. City of Anaheim, 343

F.3d 1052 (9th Cir. 2003), and the Supreme Court again denied certiorari.

City of Anaheim v. Drummond ex rel. Drummond, 542 U.S. 918 (2004).

BRYAN v. MACPHERSON 18897

(“[D]arts may cause puncture wounds or burns. Puncture

wounds to an eye by a barbed dart could lead to a loss in

vision in the affected eye. Head injuries or fractures resulting

from falls due to muscle incapacitation may occur.”). In this

case, Bryan required emergency surgery to have the dart

removed. Moreover, the sudden electrical charge that immo-

bilizes an individual can cause significant injury, especially if

the tasered individual, like Bryan, lands on a hard surface.3

These injuries may even prove fatal, as Taser International’s

own training materials warn: “The TASER conducted energy

weapons cause temporary incapacitation and the inability to

catch yourself as you fall. This incapacitation and the result-

ing fall can be dangerous and even fatal under specific cir-

cumstances. For example, someone hit by the X26 in a high

place could be seriously injured in a fall . . . .” Bryan v. Mac-

Pherson, No. 06-CV-01487 (S.D. Cal. Mar. 12, 2008) (Dkt

83-4, at 3) (emphasis added).

Such injuries, while perhaps “mild” in an abstract, relative

sense, are clearly not insubstantial. Use of a device which can

cause such injuries in the mine run of cases surely rises to the

level of significant, intermediate force.

VI.

Judge Tallman claims that we have mischaracterized the

facts, but it is Judge Tallman who has mischaracterized the

evidence in the record in an attempt to minimize the quantum

of force represented by use of an X26 taser or similar device

in dart mode. For example, Judge Tallman says that “during

training, nearly all Coronado Police Department officers are

tased themselves.” In fact, the record demonstrates clearly

3

The similar use of the taser on Ms. Cavanaugh, “whose feet were on

the front steps of her home,” caused her to go rigid, spin around, and strike

her head on the concrete steps. Cavanaugh, 2010 WL 4332289, at *1. “As

a result of this fall, Ms. Cavanaugh suffered a traumatic brain injury.” Id.

(emphasis added).

18898 BRYAN v. MACPHERSON

that “[i]t’s not a requirement” for Coronado officers to be

tased before being certified — even though the vast majority

in that department reportedly voluntarily were, albeit under

highly-controlled circumstances.

The point is irrelevant in any event. The record shows only

that Coronado police officers could volunteer to be tased by

a taser deployed in drive stun mode while they were being

held upright by two other officers. This is because, in the

words of the Coronado Police Department trainer, “we don’t

want them to fall down and hurt themselves in a training ses-

sion.” This opportunity to submit to stungunning obviously

has nothing to do with the question of whether an X26 taser

in dart mode constitutes an intermediate level of force. More-

over, there is absolutely no evidence in the record that Officer

MacPherson himself was ever tased in stun or dart mode; and,

if there were, it would demonstrate that he was well aware of

the substantial level of force he used on Bryan, as he would

have been familiar with the loss of control (and inability to

remain standing rather than crash to the ground) accompany-

ing an electrical current running through the body.

Judge Tallman similarly misrepresents evidence in the

record regarding the potential for injury the X26 or similar

devices used in dart mode represents to those harpooned and

tased. For example, he cites to Taser’s own Instructor Certifi-

cation Lesson Plan from 2004, which makes the unsupported

assertion that there is a “0% injury rate for the 26 watt

ADVANCED TASER,” for the principle that these devices

are entirely safe and innocuous. Notably, however, this same

document begins with a warning that tasers “should be treated

as serious weapons and should only be deployed in situations

where the alternative would be to use other force measures

which carry similar or higher degrees of risk.” More impor-

tantly, this warning includes an observation about exactly

what constitutes an “injury” that casts serious doubt upon the

usefulness of the “0% injury rate” figure: the “extensive med-

ical evidence,” the document reads, “strongly supports the

BRYAN v. MACPHERSON 18899

TASER X26 and ADVANCED TASER M26 and M18 will

not cause lasting aftereffects or fatality . . . .” In other words,

in a study in which 1000 volunteers were tased — whether by

tasers in drive-stun mode or in dart mode is not clear — none

was killed or permanently injured. Fair enough — but surely

it is possible for a weapon to cause injury, or even serious

injury, without causing death or permanent injury.

VII.

We explicitly “recognize[d] the important role controlled

electric devices like the Taser X26 can play in law enforce-

ment” to “help protect police officers, bystanders, and sus-

pects alike.” Bryan, 608 F.3d at 622. This recognition,

however, which is shared by Judge Tallman, is entirely con-

sistent with the eminently reasonable principle that the major-

ity of active judges on our court, along with many other

judges and law enforcement personnel, have also recognized:

the X26 taser and similar devices, when used in dart mode,

constitute an “intermediate, significant level of force that

must be justified by the governmental interest involved.”

Bryan, 608 F.3d at 622.

I respectfully concur with denial of rehearing en banc.

TALLMAN, Circuit Judge, with whom Judges CALLAHAN

and N. R. SMITH join, dissenting from the denial of rehear-

ing en banc:

Police officers are allowed to act in reasonable self-

defense. Yet, in Bryan v. MacPherson, we deem unconstitu-

tional the actions of a police officer who did just that. Coro-

nado Police Officer Brian MacPherson was standing alone on

the street when he was confronted by a mostly naked man

who reacted with irrational rage to being directed to stop his

car for a simple seatbelt violation. He shouted “fuck” over

18900 BRYAN v. MACPHERSON

and over, repeatedly punched his steering wheel, ignored the

officer’s commands to remain in his car, shouted gibberish,

pummeled his own thighs, and did not retreat when the officer

yelled at him to get back in his car.

Rather than recognize the serious potential threat to a lone

officer’s safety posed by someone acting this bizarrely, the

panel determines that the officer was unreasonable to think

that he was in any danger. Further, the panel’s sweeping lan-

guage deems the officer’s use of his taser—an effective

means of ensuring compliance that is less likely to cause

injury to officers, suspects, and innocent bystanders than

nearly any other tool at an officer’s disposal—excessive force

as a matter of law. Because the panel’s decision endangers

officers and citizens alike, I dissent from denial of rehearing

en banc.

I

Officer MacPherson’s California Sunday was off to a bad

start. The City of Coronado police officer was assigned the

tedious task of enforcing seatbelt violations early on a Sunday

morning in July 2005. To carry out his task, Officer MacPher-

son stood outside his patrol car in full uniform near a stop

sign at the intersection of Pomona Avenue and Glorietta Bou-

levard to look for violators.

While Officer MacPherson was watching traffic, a tan

Toyota Camry driven by Carl Bryan approached. At the time,

Bryan was wearing only boxer undershorts, tennis shoes, and

socks. Bryan’s sixteen-year-old brother Alexander was seated

in the passenger seat. Officer MacPherson noticed that the

driver was not wearing his seatbelt, so he put out his hand to

signal the car to stop. Bryan stopped at the stop sign in the

lane of traffic. Officer MacPherson approached the passenger

window to speak with him. Looking into the car, Officer Mac-

Pherson noticed that the driver was not wearing a shirt. The

radio was turned up. Bryan sat in the driver’s seat staring

BRYAN v. MACPHERSON 18901

straight ahead with both hands clutching the steering wheel.

When the officer asked Bryan to turn the radio down, he

turned it off. Officer MacPherson then asked him to pull the

car over to the curb. In response, Bryan began punching the

steering wheel with both fists and started shouting “fuck”

over and over. He was yelling loudly enough that a man play-

ing tennis at a club fifty to seventy-five feet away could hear

him screaming “fuck, fuck, fuck.” While continuing to pound

the steering wheel and shout, Bryan pulled his car ahead and

stopped in the intersection blocking a crosswalk several feet

from the curb.

Although Bryan was compliant with the Coronado officer’s

instructions to this point, Officer MacPherson was concerned

about the odd behavior he was seeing: the driver was acting

in an irrational, violent, angry, and aggressive manner.

Because the officer considered that Bryan might be high on

PCP or another drug, or might be mentally unstable, he

radioed for backup. Help did not arrive in time.

Bryan’s next actions did nothing to dispel Officer Mac-

Pherson’s concerns. Bryan began to open the driver’s side

door. Officer MacPherson, who was fifteen to twenty feet

away, began yelling at him, “Stay in the car, stay in the car,

stay in the car,” and removed his X26 taser from its holster.

Although a jogger forty feet away and the tennis player heard

the officer yelling for him to stay in the car, Bryan continued

to open the door and get out. Officer MacPherson continued

ordering Bryan to get back in the car, but Bryan did not do

so.1

1

Officers conducting a traffic stop can order occupants to get out of the

car. Maryland v. Wilson, 519 U.S. 408, 414-15 (1997); Ruvalcaba v. City

of Los Angeles, 64 F.3d 1323, 1326-27 (9th Cir. 1995). This authority

stems from the conclusion that “[t]he risk of harm to both the police and

the occupants is minimized if the officers routinely exercise unquestioned

command of the situation.” Michigan v. Summers, 452 U.S. 692, 702-03

(1981). It follows that officers can require the occupants to remain in the

car as well; indeed, depending on the circumstances, it may well be safer

for them to do so. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 119

& n.10 (1977) (Stevens, J., dissenting).

18902 BRYAN v. MACPHERSON

Once out of the car, Bryan started yelling gibberish and

pounding his thighs with both fists. He was between the open

door and the car, still within arm’s reach of the passenger

compartment. Fearing for his safety, Officer MacPherson

deployed his taser, hitting Bryan with a single dart in the left

arm. Bryan fell to the ground, breaking four teeth and cutting

and bruising his face.

II

An officer’s use of excessive force to effect an arrest is a

violation of a person’s Fourth Amendment right to be free

from unreasonable searches and seizures. Graham v. Connor,

490 U.S. 386, 395 (1989). A citizen’s claim that a law

enforcement officer used excessive force is analyzed under an

“objective reasonableness” standard. Id. at 395, 399. Deter-

mining whether the force used is reasonable requires a balanc-

ing of “the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the counter-

vailing governmental interests at stake.” Id. at 396 (internal

quotation marks and citations omitted). Further, the “standard

of reasonableness at the moment applies.” Id. The reasonable-

ness of the use of force is judged from the perspective of a

reasonable officer on the scene—not from the perspective of

the person seized or of a court reviewing the situation with

20/20 hindsight. Id.

Even if a law enforcement officer uses excessive force in

violation of a citizen’s Fourth Amendment rights, the officer

will still be entitled to qualified immunity unless clearly

established law provides that the conduct violates the Fourth

Amendment. An officer is shielded from personal liability

when he reasonably believes his conduct in the situation is

lawful. Saucier v. Katz, 533 U.S. 194, 201-02 (2001), receded

from on other grounds by Pearson v. Callahan, 129 S. Ct.

808, 817-21 (2009) (holding that the “rigid order of battle”

inquiry mandated by Saucier is no longer required).

BRYAN v. MACPHERSON 18903

The panel’s revised opinion correctly determines that the

law on whether an officer’s use of a taser to control an aggres-

sive and noncompliant subject violated the subject’s Fourth

Amendment rights was not clearly established, and thus holds

that Officer MacPherson is entitled to qualified immunity.

Having reached that conclusion, the panel’s work should have

been done. Instead, the panel goes on to examine whether use

of the taser constitutes unconstitutional excessive force. In

concluding that it does, the Bryan panel mischaracterizes the

facts, relies on bad law, and uses contested facts to set future

use-of-force policy for all law enforcement officers in the

Ninth Circuit.

A

The Bryan panel’s first error is in its rendition of the facts.

As in any motion for summary judgment, a court considering

an officer’s qualified immunity must take the facts in the light

most favorable to the nonmoving party. Saucier, 533 U.S. at

201. In assessing whether an officer is entitled to qualified

immunity, however, the court must view those facts from the

objective perspective of a reasonable officer on the scene.

Graham, 490 U.S. at 396. The panel fails to view the facts

from this perspective; instead, it relates all of the facts from

Bryan’s perspective. This is error.

For instance, the panel explains that Bryan didn’t hear the

officer’s commands to stay in or get back into the car and that

Bryan hit his steering wheel and yelled obscenities because he

was mad at himself for being stopped by police twice in the

same morning. While this may be true—and for purposes of

summary judgment we assume that it is—it is beside the

point. Officer MacPherson didn’t know Bryan’s motivations.

All Officer MacPherson knew was that Bryan did not comply

with lawful commands and was exhibiting truly bizarre

behavior. It is what Officer MacPherson knew, not Bryan’s

innocent, post-filing explanation favored by the panel, that

must be considered in assessing objective reasonableness.

18904 BRYAN v. MACPHERSON

Because the panel relays the facts from Bryan’s perspec-

tive, rather than the officer’s, it was no doubt easy to conclude

that Bryan did not pose any threat to the officer. Looked at

from a reasonable officer’s perspective, however—as Graham

requires—Bryan’s behavior was volatile, irrational, and

alarming. Any reasonable officer would be concerned for his

safety.

B

The Bryan panel also errs by applying the wrong standard

for measuring the appropriateness of the force used. In its first

two opinions, it determined that all use of tasers “constitute[s]

an intermediate, significant level of force that must be justi-

fied by a strong government interest [that] compels the

employment of such force.” Bryan v. MacPherson, 608 F.3d

614, 622 (9th Cir. 2010) (quoting Drummond ex rel. Drum-

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

2003), and Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th

Cir. 2001)) (first alteration added and internal quotation

marks omitted); see also Bryan v. MacPherson, 590 F.3d 767,

774-75 (9th Cir. 2009).2 But the question is not whether the

governmental interests compel the employment of such force;

it is whether the governmental interests permit the employ-

ment of such force.

In evaluating the governmental interests at stake and the

reasonableness of the force used in light of those interests, a

reviewing court must examine the totality of the circum-

stances, “including the severity of the crime at issue, whether

the suspect poses an immediate threat to the safety of the offi-

cers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight,” among other factors.

2

The previous two opinions in this case are being superseded by a third

opinion, filed simultaneously with the order denying rehearing en banc

and this dissent. The minor modification made in the panel’s third opinion

is discussed herein.

BRYAN v. MACPHERSON 18905

Graham, 490 U.S. at 396. The right to make an arrest carries

with it the right to employ some level of force to effect it. Id.

A court must consider that the officer may be reacting to a

dynamic and evolving situation, requiring the officer to make

split-second decisions. Id. at 396-97. Accordingly, an officer

need not have perfect judgment, nor must he resort only to the

least amount of force necessary to accomplish legitimate law

enforcement objectives.

Rather, a range of force may be reasonable under the cir-

cumstances. See, e.g., Graham, 490 U.S. at 396 (“Not every

push or shove, even if it may later seem unnecessary in the

peace of a judge’s chambers, violates the Fourth Amend-

ment.” (quotation marks and citation omitted)); see also For-

rester v. City of San Diego, 25 F.3d 804, 807-08 (9th Cir.

1994) (“Police officers, however, are not required to use the

least intrusive degree of force possible. Rather . . . the inquiry

is whether the force that was used to effect a particular seizure

was reasonable, viewing the facts from the perspective of a

reasonable officer on the scene. Whether officers hypotheti-

cally could have used less painful, less injurious, or more

effective force in executing an arrest is simply not the issue.”

(citations omitted)). The Supreme Court reiterated this stan-

dard of analysis in Saucier, 533 U.S. at 204-07.

Despite this clear, consistent, and controlling Supreme

Court precedent, a single judge of our court, joined only by

a senior judge of a different circuit sitting by designation,

charted a new path in 2001. Without citing a single case, the

court in Deorle rewrote the standard: “[T]he degree of force

used by [law enforcement] is permissible only when a strong

governmental interest compels the employment of such

force.” 272 F.3d at 1280. To justify this conclusion, the

Deorle panel quotes Graham out of context. Specifically, the

Deorle majority wrote that the Graham factors “are simply a

means by which to determine objectively ‘the amount of force

that is necessary in a particular situation.’ ” Id. (quoting Gra-

ham, 490 U.S. at 396-97). The full sentence from Graham

18906 BRYAN v. MACPHERSON

actually reads: “The calculus of reasonableness must embody

allowance for the fact that police officers are often forced to

make split-second judgments—in circumstances that are

tense, uncertain, and rapidly evolving—about the amount of

force that is necessary in a particular situation.” Graham, 490

U.S. at 396-97. It is clear that Graham envisions a flexible

standard, appropriate to “reasonableness”; Deorle nonetheless

requires the police to use only the minimum force necessary.

That is not the law the Supreme Court has articulated as the

standard applicable to police officers as they make these time-

pressured and difficult decisions. See Saucier, 533 U.S. at 205

(“If an officer reasonably, but mistakenly, believed that a sus-

pect was likely to fight back, for instance, the officer would

be justified in using more force than in fact was needed.”).

In apparent recognition of the fact that the Deorle standard

is faulty, the panel has again amended its opinion—a single

sentence of its opinion—this time to delete the above-quoted

language and to state instead that tasers “constitute an inter-

mediate, significant level of force that must be justified by the

governmental interest involved.” Maj. Op. at 18918. The

panel’s amendment does not go far enough. The mere deletion

of a single reference to Deorle does not overrule it; we must

go en banc to do so. Moreover, the panel’s repeated citations

to Deorle throughout the rest of the opinion suggest that it

considers Deorle to present a more preferable standard than

the one the Supreme Court has chosen. Indeed, by amending

its opinion to more accurately reflect the correct standard

without actually applying it, the panel attempts to disguise the

fact that it has applied Deorle yet again. In so doing, it has

ensured that the judgment of the officer on the street, who is

not afforded the luxury of time, will nearly always be sup-

planted by the more ponderous judgment of this Court.

C

The Bryan panel’s third mistake is to use a contested record

to make sweeping findings about tasers and the harms that

BRYAN v. MACPHERSON 18907

they may cause. While assuming the facts in the light most

favorable to Bryan is the appropriate standard for summary

judgment, it is not the appropriate platform for severely limit-

ing the use of tasers by law enforcement officers throughout

the Ninth Circuit.

A review of the record demonstrates that tasers are gener-

ally safe. The record—which included Officer MacPherson’s

testimony about his own experience with tasers, testimony

from the Coronado Police Department’s taser expert, materi-

als from the taser’s manufacturer, and a report from the Inter-

national Association of Chiefs of Police National Law

Enforcement Policy Center—unequivocally established that

the application of a taser to an individual is medically safe

and unlikely to cause injury.

For instance, during training nearly all Coronado Police

Department officers are tased themselves. The same cannot be

said for some of the other compliance techniques at law

enforcement’s disposal, such as firearms or “flash bang”

devices used to disorient barricaded suspects. Further, the evi-

dence in the record showed that human volunteer studies con-

firmed a zero percent injury rate for the taser and similarly

low rates of injury in field studies. In fact, the record showed

that “the relative injury rate to both officers and subjects is

very low” and “much lower than for blunt impact techniques”

like batons and steel flashlights. As a result, most police agen-

cies rate the taser as involving equivalent or even less force

than pepper spray because it results in “fewer injuries to both

officers and suspects, no aftereffects, [a] shorter period of dis-

comfort[,] and it is target specific.”3

3

More recent research corroborates the studies cited in the record. For

instance, a comprehensive study was conducted at Wake Forest University

School of Medicine, and examined all uses of tasers against criminal sus-

pects in six law enforcement agencies over 36 months, which involved

1,201 uses. That study concluded: “Mild or no injuries were observed after

[taser] use in 1,198 subjects (99.75% . . . .). Of mild injuries, 83% were

18908 BRYAN v. MACPHERSON

Rather than simply finding Officer MacPherson entitled to

qualified immunity, the panel proceeds on a highly contested

factual record and finds that all tasers constitute a significant

amount of force. It reaches this conclusion based on the injury

Bryan alleged he suffered when he fell, as well as limited

cases from other circuits, including the Seventh Circuit’s

speculation that “one need not have personally endured a taser

jolt to know the pain that must accompany it.” Maj. Op. at

18915 (quoting Lewis v. Downey, 581 F.3d 467, 475 (7th Cir.

2009)).

In the concurrence filed contemporaneously with the

amended opinion and order denying rehearing en banc, Judge

Wardlaw bolsters her argument by misrepresenting two of our

cases scheduled to be reheard en banc: Mattos v. Agarano,

590 F.3d 1082 (9th Cir. 2010), reh’g en banc granted by ___

F.3d ___, 2010 WL 3931122 (9th Cir. Oct. 4, 2010), and

Brooks v. City of Seattle, 599 F.3d 1018 (9th Cir. 2010), reh’g

en banc granted by ___ F.3d ___, 2010 WL 3896202 (9th Cir.

Sep. 30, 2010).4 Our opinion in Brooks did not analyze the use

of tasers in dart mode. Quite to the contrary, we distinguished

the use of a taser in stun mode from the use of a taser in dart

mode and stated that using a taser in stun mode “was more on

par with pain compliance techniques, which this court has

found involve a ‘less significant’ intrusion upon an individu-

al’s personal security than most claims of force.” 599 F.3d at

superficial puncture wounds from [taser] probes. . . . Two subjects died in

police custody; medical examiners did not find [taser] use to be causal or

contributory in either case.” Bozeman, William, et al., Safety and Injury

Profile of Conducted Electrical Weapons Used by Law Enforcement Offi-

cers Against Criminal Suspects, Annals of Emergency Medicine (2009).

4

Any reliance on these decisions is meaningless at this juncture because

the prior opinions are no longer binding now that the court has voted to

rehear them en banc. It would be futile to predict the outcome of the en

banc proceedings in Brooks and Mattos, and I do not attempt to do so.

Rather, my disagreement stems from the Bryan panel’s unnecessary fac-

tual findings.

BRYAN v. MACPHERSON 18909

1027-28. Because the officers in Brooks used the taser in stun

mode, the quantum of force used was “less than the interme-

diate,” id. at 1028, and the discussion of Bryan and other cir-

cuit precedent was therefore not necessary to the resolution of

the case.

Likewise, there is a fundamental difference between our

statement in Mattos that using a taser “was a serious intrusion

into the core of the interests protected by the Fourth Amend-

ment,” 590 F.3d at 1087, and holding that all taser use equates

to an intermediate level of force. Any use of force may qual-

ify as a serious intrusion on Fourth Amendment interests. But

that does not ipso facto mean that an intermediate level of

force was used. It is improper and inaccurate to state that we

implied that tasers are an intermediate level of force when, in

fact, we merely stated that tasers intrude on Fourth Amend-

ment protections. We did not make such a factual finding in

Mattos, arguably because of the conflicting and undeveloped

record presented to us on appeal. Id. The panel would have

been well-advised to take a similar approach in Bryan.

It is one thing to hold that, if proved, Bryan’s allegations

could support a jury finding of excessive force. It is another

thing entirely for an appellate court reviewing the invocation

of qualified immunity to make its own factual finding—based

solely on inferences that must be drawn in favor of the injured

party and material outside the record—that tasers represent an

intermediate and substantial use of force. It is beyond the pale

to then apply that judicial fact-finding to prescribe any offi-

cer’s use of a taser anywhere in the Ninth Circuit.

III

Courts are ill-equipped to tell law enforcement officers how

they must respond when faced with unpredictable and evolv-

ing tactical situations. See Fisher v. City of San Jose, 558 F.3d

1069, 1080 (9th Cir. 2009) (en banc) (explaining that telling

the police confronted with a developing situation involving an

18910 BRYAN v. MACPHERSON

intoxicated and heavily armed tenant “what tactics are permis-

sible” is not “a reasonable role for a judicial officer”). Nor

should police officers be required to put life and limb at risk

to avoid liability for their conduct when they are reacting to

uncertain and rapidly unfolding circumstances, particularly

involving mentally unstable subjects who may well attack a

lone officer without warning.

Rather than issuing blanket directives based on the facts of

a single case, which were taken in the light most favorable to

the plaintiff, we must adhere to well-developed Supreme

Court law that requires us to analyze each case individually,

looking at the totality of the circumstances from the perspec-

tive of a reasonable officer on the street. Graham, 490 U.S.

at 396. Then, we must assess whether a jury could determine

that the choice the officer made in the heat of the moment fits

within a range of reasonable actions. Id. at 396-97. The

panel’s decision repeatedly applies the wrong standards to

reach its desired result—a result that endangers the good faith

efforts of law enforcement officers to protect themselves, the

community they serve, and the subjects they encounter.

Accordingly, I dissent from the denial of rehearing en banc.

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-

BRYAN v. MACPHERSON 18911

tionally excessive. However, we reverse in part because the

violation of Bryan’s constitutional rights was not clearly

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

18912 BRYAN v. MACPHERSON

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

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

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

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.

BRYAN v. MACPHERSON 18913

Police Department, but determined that Officer MacPherson

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

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

18914 BRYAN v. MACPHERSON

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

S. Ct. 808, 818 (2009).

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

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.

BRYAN v. MACPHERSON 18915

delivers a 1200 volt, low ampere electrical charge through the

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

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.

18916 BRYAN v. MACPHERSON

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

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.”).

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).

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).

BRYAN v. MACPHERSON 18917

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

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

18918 BRYAN v. MACPHERSON

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

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 when

used in dart-mode constitute an intermediate, significant level

of force that must be justified by the governmental interest

involved.

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.

BRYAN v. MACPHERSON 18919

[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

(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,

18920 BRYAN v. MACPHERSON

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

Bryan’s favor and conclude that Bryan did not advance

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-

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.

BRYAN v. MACPHERSON 18921

cer MacPherson had unholstered and charged his X26, plac-

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

18922 BRYAN v. MACPHERSON

close to the officer and pacing in an agitated fashion while

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

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).

BRYAN v. MACPHERSON 18923

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

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

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.

18924 BRYAN v. MACPHERSON

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

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,”

BRYAN v. MACPHERSON 18925

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-

18926 BRYAN v. MACPHERSON

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.

BRYAN v. MACPHERSON 18927

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.

18928 BRYAN v. MACPHERSON

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

BRYAN v. MACPHERSON 18929

(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

18930 BRYAN v. MACPHERSON

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-

BRYAN v. MACPHERSON 18931

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.