Troy Mattos v. Darren Agarano

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TROY MATTOS; JAYZEL MATTOS, 

Plaintiffs-Appellees,

v.

DARREN AGARANO; RYAN AIKALA; No. 08-15567

STUART KUNIOKA; HALAYUDHA

MACKNIGHT,  D.C. No.

07-CV-00220-DAE

Defendants-Appellants, OPINION

and

MAUI COUNTY,

Defendant.



Appeal from the United States District Court

for the District of Hawaii

David A. Ezra, District Judge, Presiding

Argued and Submitted

May 15, 2009—Honolulu, Hawaii

Filed January 12, 2010

Before: Alex Kozinski, Chief Judge, Jay S. Bybee and

Consuelo M. Callahan, Circuit Judges.

Per Curiam Opinion

871

874 MATTOS v. AGARANO

COUNSEL

Brian T. Moto, Corporation Counsel for the County of Maui,

Laureen L. Martin (argued), Moana M. Lutey, Richard B.

Rost, Cheryl Tipton, Deputies Corporation Counsel, Wailuku,

Hawaii, for the defendants-appellants.

Eric A. Seitz (argued), Lawrence I. Kawasaki, Honolulu,

Hawaii, for the plaintiffs-appellees.

MATTOS v. AGARANO 875

OPINION

PER CURIAM:

Maui police officers Darren Agarano, Halayudha Mac-

Knight, Stuart Kunioka, and Ryan Aikala appeal the district

court’s order denying their motion for summary judgment on

the basis of qualified immunity in this § 1983 action. The dis-

trict court ruled that material questions of fact existed as to

whether the officers’ use of a Taser gun (“Taser”) against

plaintiff Jayzel Mattos was constitutionally reasonable and

summary judgment was therefore inappropriate. Because we

conclude that, even taking the facts in the light most favorable

to the plaintiffs, the defendant officers did not violate Jayzel’s

constitutional rights, we reverse the judgment of the district

court.

I. FACTS AND PROCEDURAL HISTORY

On August 23, 2006, sometime after 11 p.m., a domestic

disturbance broke out between Jayzel and Troy Mattos at their

home. During the fight, Jayzel asked her fourteen-year-old

daughter, Cheynice, to call the police. Cheynice told the dis-

patcher that Jayzel and Troy were engaged in a physical alter-

cation and that things were being thrown around. Officers

Agarano, MacKnight, Kunioka, and Aikala responded to the

911 call. When the officers arrived, they found Troy, a six-

foot-three-inch tall man weighing approximately 200 pounds,

sitting at the top of the stairs just outside the front door of a

second story residence with two bottles of beer lying nearby.

Based on the beer bottles and the smell of alcohol, Officer

Kunioka believed that Troy was intoxicated. When Kunioka

approached and asked Troy what had happened, Troy

responded that he and his wife had argued but that the argu-

ment had not gotten physical. Kunioka asked Troy to get Jay-

zel so that they could talk to her and make sure she was safe.

The parties differ in their accounts of what follows, but at

this stage of the litigation, we take the facts in the light most

876 MATTOS v. AGARANO

favorable to the plaintiffs. See Smith v. City of Hemet, 394

F.3d 689, 693 (9th Cir. 2005) (en banc).

Troy entered his home to get Jayzel, and Officer Agarano

stepped inside the doorway. When Troy returned with Jayzel,

Troy became upset that Agarano was in his house, and he

demanded that the officers leave, insisting that they had no

right to be in the house and yelling profanities at them. The

officers asked Jayzel to speak to them outside. Jayzel agreed

and asked her husband and the officers to calm down and not

wake her sleeping children. Aikala then entered the hallway

area to arrest Troy, who was still yelling at the officers. Jayzel

asked Aikala why her husband was being arrested and again

asked that the officers and her husband calm down, leave the

house, and not disturb her children.

At this point, Jayzel was cornered between the officers and

her husband—Officer Agarano was in front of her, Officer

Aikala was at her right, and her back was against her hus-

band’s chest. Aikala moved to apprehend Troy and bumped

against Jayzel. Feeling uncomfortable and exposed with

Aikala squarely in front of her, Jayzel raised her hands, palms

forward at her chest, to “keep [Aikala] from flushing his body

against [hers].” Jayzel agrees that both of her hands touched

Aikala’s chest, but asserts that she did not put her hands up

until Aikala was pressed up against her.

Aikala immediately stepped back and asked Jayzel if she

was touching an officer. Jayzel testified that she was scared

and again implored everyone to calm down and not wake her

children. At that moment, Jayzel felt a pinch on the back of

her right hand and then felt “an incredible burning and painful

feeling locking all of [her] joints,” she heard herself scream,

and felt herself fall to the floor. Aikala had tased Jayzel and

cycled it for five seconds.

Jayzel and Troy were taken into custody; both were

charged with harassment, while Troy was charged with resist-

MATTOS v. AGARANO 877

ing arrest and Jayzel with obstructing government operations.

A state court judge dismissed the charges against Jayzel, and

it appears that the State later dropped all criminal charges

against Troy.

Troy and Jayzel brought suit against the officers and others

under 42 U.S.C. § 1983 for violations of their Fourth, Fifth,

and Fourteenth Amendment rights based on the officers’ war-

rantless entry into their residence, Jayzel and Troy’s arrests,

and the officers’ use of the Taser on Jayzel. The district court

granted summary judgment in favor of the defendants on all

claims except an excessive force claim under the Fourth

Amendment based on the officers’ use of the Taser on Jayzel.

With respect to excessive force, the court ruled that there

were questions of fact material to deciding whether the use of

the Taser was constitutionally reasonable. The officers

brought this appeal.

II. ANALYSIS

It is well-settled that the party moving for summary judg-

ment has the initial burden of showing that there are no genu-

ine issues of material fact and that it is entitled to judgment

as a matter of law. See Anderson v. Liberty Lobby, 477 U.S.

242, 247-48 (1986). Once the moving party has met this ini-

tial burden, the nonmoving party has the subsequent burden

of presenting evidence to show that a genuine issue of fact

remains. The party opposing the motion for summary judg-

ment “may not rest upon the mere allegations or denials of

[her] pleading, but . . . must set forth specific facts showing

that there is a genuine issue for trial.” Id. at 248. If the party

opposing the motion “fails to make a showing sufficient to

establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at

trial” then summary judgment is proper. Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).

Once the officers moved for summary judgment as a matter

of law, presenting evidence that the use of a Taser was not

878 MATTOS v. AGARANO

excessive force under the Fourth Amendment and that a rea-

sonable officer would not have known that a Taser deploy-

ment in this situation would violate the Fourth Amendment,

the Mattoses could not defeat summary judgment by relying

on conclusory allegations in their pleading. They had the bur-

den to come forward with specific facts—such as the force

used in a deployment of a Taser or the injuries Jayzel suffered

—to show that the officers’ use of a Taser was indeed a viola-

tion of the Fourth Amendment. Despite the Mattoses failure

to offer additional evidence to defeat summary judgment, we

view the submitted evidence in the light most favorable to the

Mattoses in determining whether there are genuine issues of

material fact in their § 1983 claim. See Bingham v. City of

Manhattan Beach, 341 F.3d 939, 945 (9th Cir. 2003).

[1] In evaluating a § 1983 claim against an officer, we gen-

erally proceed in a two-part analysis. The “threshold ques-

tion” is “[t]aken in the light most favorable to the party

asserting the injury, do the facts alleged show the officer’s

conduct violated a constitutional right?” Saucier v. Katz, 533

U.S. 194, 201 (2001) (abrogated in part on other grounds by

Pearson v. Callahan, 129 S.Ct. 808, 818 (2009)). If the Con-

stitution was not violated, that is the end of the inquiry. If

there was a violation, however, we proceed to the question of

qualified immunity. Officers are protected by qualified immu-

nity, which is “an immunity from suit rather than a mere

defense to liability,” Pearson 129 S.Ct. at 815. When an offi-

cer asserts immunity, the court dismisses the case unless the

officer knew that his conduct was “clearly unlawful,” that is,

unless the officer understood or should have understood that

his actions violated a clearly established right. Saucier, 533

U.S. at 202. Although we have flexibility in deciding which

part of the analysis to address first, we think it important in

this case to determine first whether a constitutional violation

occurred. See Pearson, 129 S.Ct. at 818 (holding that “while

the sequence set forth [in Saucier] is often appropriate, it

should no longer be regarded as mandatory”).

MATTOS v. AGARANO 879

A. Constitutional Violation

Although we find the question to be a close one, on this

record, we cannot conclude that the officers used excessive

force in violation of the Fourth Amendment.

[2] The Fourth Amendment guarantees “[t]he right of the

people to be secure in their persons . . . against unreasonable

searches and seizures” U.S. CONST. amend. IV. When a plain-

tiff claims that she was not “secure in [her] person” because

law enforcement officers used excessive and, therefore, “un-

reasonable” force in the course of an arrest, we balance “ ‘the

nature and quality of the intrusion on the individual’s Fourth

Amendment interests’ against ‘the countervailing government

interests at stake.’ ” Miller v. Clark County, 340 F.3d 959,

964 (9th Cir. 2003) (quoting Graham v. Connor, 490 U.S.

386, 396 (1989)). We have held that we conduct this inquiry

in a three-step analysis. “First, we assess the gravity of the

particular intrusion on Fourth Amendment interests by evalu-

ating the type and amount of force inflicted.” Id. Second, we

analyze “the importance of the government interests at stake

by evaluating: (1) the severity of the crime at issue, (2)

whether the suspect posed an immediate threat to the safety

of the officers or others, and (3) whether the suspect was

actively resisting arrest or attempting to evade arrest by

flight.” Id. At this stage of the analysis, we may also consider

other factors, such as “the availability of alternative methods

of capturing or subduing a suspect.” Smith, 394 F.3d at 701.

Finally, we weigh the gravity of the intrusion against the gov-

ernment’s interest to determine whether the force used was

constitutionally reasonable. Miller, 340 F.3d at 964.

1

We first evaluate the type and amount of force inflicted.

The problem here is that, even with the benefit of some brief-

ing and argument on the subject, it is difficult for us to opine

with confidence regarding either the quantum of force

880 MATTOS v. AGARANO

involved in a deployment of a Taser gun or the type of force

inflicted. The defendants paint a benign portrait of the Taser,

offering evidence that it has been used on over one million

human subjects and has proven extremely safe, as well as evi-

dence that the actual voltage applied to a subject’s body uses

less electricity than a single bulb on a string of Christmas tree

lights.1

[3] The plaintiffs, for their part, have not offered any evi-

dence about the kind of force or injury a Taser inflicts. Nor

have they provided evidence that would permit us to assess

the severity of any injuries Jayzel suffered from the Taser.

Jayzel described the experience as “[i]ncredibly painful,”

“last[ing] for what seemed like forever,” and analogized the

pain to child labor. But although she claims to have suffered

injuries as a result of the incident, the plaintiffs have not

offered any evidence of these injuries; Jayzel removed the

Taser’s prongs herself and then refused medical treatment at

the scene.

[4] On the other hand, the defendant’s expert conceded that

a Taser in the drive stun mode “induce[s] subject control

through pain compliance if the person responds to painful

stimulus,” and that it “stimulates nerves that control the motor

muscles which . . . result[s] in subject incapacitation.” On this

record then, we are left with evidence that the Taser, in gen-

eral, is more than a non-serious or trivial use of force but less

than deadly force. Unfortunately, there is a lot of room

between these end points. In this case, we know that the Taser

was sufficient force to drive Jayzel to her knees in seconds

and cause her to scream with pain. Although the record on

this point is not as developed as we could hope for, viewing

the evidence in the light most favorable to Jayzel, we have no

difficulty concluding that the Taser stun was a serious intru-

sion into the core of the interests protected by the Fourth

1

This testimony, however, may advise that we be more careful with our

Christmas tree lights than describe the harmlessness of a Taser stun.

MATTOS v. AGARANO 881

Amendment: the right to be “secure in [our] persons.” U.S.

CONST. amend. IV.

2

[5] We next analyze the importance of the government

interest in using a Taser and weigh the gravity of the intrusion

against the government interest. Miller, 340 F.3d at 964. First,

we consider the severity of the crime. When Aikala

announced that Troy was under arrest, Jayzel was between the

officers and her husband. She did not move from her protec-

tive position, asking why Troy was under arrest and request-

ing that the officers proceed outside. Aikala reached for Troy

and made contact with Jayzel. When Aikala immediately

asked her if she was touching an officer, Jayzel did not

directly respond nor did she move from her position but

instead asked him to calm down and be quiet because her

children were sleeping. It was at this point that Aikala

deployed the Taser on Jayzel, and the other officers arrested

Troy. In the light most favorable to Jayzel, her actions in

obstructing the officers, although inappropriate, did not con-

stitute a serious crime. Her contact with Aikala appears to

have been incidental and due mainly to the cramped quarters

in which the Mattoses and the officers found themselves

rather than to any intention on Jayzel’s part to interfere with

the officers. Additionally, however, we must take into account

Troy’s actions. He was belligerent and appeared to be intoxi-

cated. As explained by the 911 call, Troy’s conduct that eve-

ning was a threat to Jayzel, and in his intoxicated condition,

Troy posed a threat to the officers as well. Thus, Jayzel her-

self may have posed little threat, but any interference she

caused only heightened the danger Troy represented. As the

district court found, Jayzel’s actions “exacerbated an already

tense, and rapidly escalating situation.” On balance then, Jay-

zel’s actions were not a serious crime, but as we discuss

below, carried the potential for a far more serious crime—

assault on an officer.

882 MATTOS v. AGARANO

The second factor we consider in evaluating the govern-

ment interest is the threat to the officers’ safety. We view the

officers’ safety as “the most important of the three Graham

factors.” Miller, 340 F.3d at 964. Here, the officers were cal-

led to respond to a fourteen-year-old girl’s 911 call reporting

domestic violence. We have observed that “[t]he volatility of

situations involving domestic violence” makes them particu-

larly dangerous. United States v. Martinez, 406 F.3d 1160,

1164 (9th Cir. 2005) “When officers respond to a domestic

abuse call, they understand that violence may be lurking and

explode with little warning. Indeed, more officers are killed

or injured on domestic violence calls than on any other type

of call.” Id. (internal citations and quotation marks omitted);

see also United States v. Black, 482 F.3d 1035, 1040 (9th Cir.

2007) (“Our circuit has recognized that the exigencies of

domestic abuse cases present dangers that . . . may override

considerations of privacy.”) (internal citations omitted). While

a drunken Troy screamed profanities at the police, Jayzel

repeatedly asked that the officers exit the house even though,

as the district court found, they had probable cause to enter

the residence. When the officers moved to arrest Troy, Jayzel

made contact with Aikala. Although Jayzel’s actions may

have been well-intentioned, or even innocent, they came pre-

cisely when the officers moved to arrest Troy. Aikala then

tased Jayzel, and the other officers arrested Troy.

[6] In assessing the danger the police confronted, we keep

in mind the Supreme Court’s guidance in Graham v. Connor,

490 U.S. 386 (1989):

The reasonableness of a particular use of force must

be judged from the perspective of a reasonable offi-

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

hindsight. . . . [P]olice 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 situ-

ation.

MATTOS v. AGARANO 883

Id. at 396-97. Thus, we must take account of the circum-

stances as they were for the officers at the Mattoses’ residence

on that night. Given the dangerous nature of domestic vio-

lence situations, the close quarters in which the officers and

the Mattoses were contained, Troy’s intoxicated state, and the

contact made between Jayzel and Aikala, there was the risk

of immediate threat to the safety of the officers. This factor

weighs heavily in favor of the government.

[7] Third, we consider whether the “suspect was actively

resisting arrest or attempting to evade arrest by flight.” Miller,

340 F.3d at 964. Jayzel’s actions prevented the officers from

arresting Troy. She was in front of her husband and demanded

to know why he was being arrested. She made contact with

Aikala as he tried to reach across her to apprehend Troy. Her

actions prevented the officers from arresting Troy, and the

officers could use reasonable force to move her away from the

arrest. Although there may have been alternative methods of

forcefully moving Jayzel out of the way, officers are not

required to use the least amount of force necessary. Scott v.

Henrich, 39 F.3d 912, 915 (9th Cir. 1994) (“Requiring offi-

cers to find and choose the least intrusive alternative would

require them to exercise superhuman judgment. . . . Imposing

such a requirement . . . would . . . entangle the courts in end-

less second-guessing of police decisions made under stress

and subject to the exigencies of the moment.”). This factor

also weighs in the government’s favor. This combination of

the severity of the crime, the threat to the officers, and the

magnitude of the resistence tips decisively in the officers’

favor. This was potentially an explosive situation. With all of

the participants in close contact in a small room, there was

real danger that if Troy could not be subdued then someone—

including Jayzel—might be injured. In such circumstances,

the officers had an important interest in obtaining immediate

control.

3

[8] Finally, in weighing the gravity of the Fourth Amend-

ment intrusion against the government’s interest, we conclude

884 MATTOS v. AGARANO

that the force used against Jayzel was reasonable within the

meaning of the Fourth Amendment. Even though we find that

use of a Taser represents a serious intrusion on interests pro-

tected by the Fourth Amendment, we recognize that in

responding to a domestic violence call, the officers confronted

a dangerous and volatile situation. When an intoxicated Troy

began yelling profanities at the officers and demanding that

they leave, the officers felt the need to arrest him to finish

their investigation and diffuse the situation. Because Jayzel

interfered with Troy’s arrest and, in doing so, made contact

with Aikala, Aikala was justified in removing her from Troy’s

side. Although an alternative method of force may have been

advisable, the Fourth Amendment does not require an officer

to use the minimum amount of force necessary to move Jayzel

and arrest Troy. See, e.g., Bryan v. McPherson, ___ F.3d ___,

No. 08-55622, slip op. at 16752 n.15 (9th Cir. Dec. 28, 2009).

In this heated situation, Aikala’s deployment of a Taser did

not violate Jayzel’s constitutional rights.

B. Qualified Immunity

[9] Even if we thought that the officers used excessive

force, it would not have been clear to any reasonable officer

on August 23, 2006, that use of a Taser in the situation they

confronted was constitutionally impermissible. The doctrine

of qualified immunity shields the officers “from liability for

civil damages [unless their conduct violated] clearly estab-

lished statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). A right is “clearly established” if “ ‘it would

be clear to a reasonable officer that his conduct was unlawful

in the situation he confronted.’ ” Wilkins v. City of Oakland,

350 F.3d 949, 954 (9th Cir. 2003) (emphasis in original)

(quoting Saucier, 533 U.S. at 202). An officer will therefore

be entitled to qualified immunity even if he was mistaken in

his belief that his conduct was lawful, so long as that belief

was reasonable. Id. at 955.

MATTOS v. AGARANO 885

In determining whether a right is clearly established, we

begin our analysis by looking to binding precedent from our

circuit and from the Supreme Court. Boyd v. Benton County,

374 F.3d 773, 781 (9th Cir. 2004). In the absence of prece-

dent, we may also “look to whatever decisional law is avail-

able to ascertain whether the law is clearly established for

qualified immunity purposes, including decisions of state

courts, other circuits, and district courts.” Id. (internal quota-

tion marks omitted).

Before August 23, 2006, when the confrontation occurred,

neither our circuit nor the Supreme Court had decided an

excessive force case involving the use of a Taser; in fact, only

the Sixth, Tenth, and Eleventh Circuits even addressed such

cases. See Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir.

2004); Hinton v. City of Elwood, Kansas, 997 F.2d 774, 781-

82 (10th Cir. 1993); Russo v. City of Cincinnati, 953 F.2d

1036, 1044-45 (6th Cir. 1992). In all three cases, the courts

held that the use of a Taser was constitutionally permissible.

We note, however, that the Eleventh Circuit has recently

rejected qualified immunity for officers who used a Taser to

shock a man (who appeared mentally unstable) eight to

twelve times before making any attempt to arrest him. Oliver

v. Fiorino, ___ F.3d ___, No. 08-15081 (11th Cir. Oct. 26,

2009). The court found that although the initial use of the

Taser may have been justified, the officers’ repeated use of

the Taser was unreasonable and excessive under the Fourth

Amendment. Id. The court explained that a reasonable officer

would have recognized that his actions were a grossly dispro-

portionate response to the threat posed. Id. More recently, in

Bryan v. McPherson, ___ F.3d___, No. 08-55622 (9th Cir.

Dec. 28, 2009), we rejected qualified immunity for an officer

who used a Taser on a driver during a traffic stop for a seat-

belt infraction. The driver stepped out of the vehicle in an agi-

tated state, wearing nothing but his boxer shorts and tennis

shoes, yelling gibberish, and hitting his thighs, when the offi-

cer, who was standing twenty-five feet away from the driver,

deployed his Taser without warning. The driver fell face first

886 MATTOS v. AGARANO

into the ground, fracturing four teeth and suffering facial con-

tusions. We determined that even though the driver’s behavior

was bizarre, it posed no threat to the officer and did not indi-

cate that the driver was attempting to flee. We denied the offi-

cer qualified immunity, holding that his use of force was

excessive and unreasonable.

[10] Unlike Bryan or Oliver, this is simply not a case in

which the officers’ conduct was so “patently violative” of

Jayzel Mattos’s constitutional rights “that reasonable officials

would know without guidance from the courts that the action

was unconstitutional.” Mendoza v. Block, 27 F.3d 1357, 1361

(9th Cir. 1994) (internal quotation marks omitted). The offi-

cers used the Taser only once in a domestic violence situation

that could have quickly become much more dangerous to

everyone involved. Because claims of excessive force are

analyzed under a Fourth Amendment reasonableness standard

using the factors delineated by the Supreme Court in Graham

v. Connor, 490 U.S. 386, 396 (1996), nothing in our opinion

today prevents another panel from deciding, with the benefit

of a more complete and substantial evidentiary record than the

one we have in this case, that the use of a Taser constituted

excessive force. See Bryan, ___ F.3d___, No. 08-55622.

III. CONCLUSION

[11] The Mattoses failed to offer specific facts that would

establish the existence of an element essential to their case—

namely, that the force used was constitutionally unreasonable.

We hold that the use of a Taser gun under these circumstances

did not violate the Fourth Amendment.

REVERSED AND REMANDED.