Isayeva v. Sacramento Sheriff's Department

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DIANA ISAYEVA, No. 15-17065

Plaintiff-Appellee,

D.C. No.

v. 2:13-cv-02015-

KJM-KJN

SACRAMENTO SHERIFF’S

DEPARTMENT, Unknown Deputies;

COUNTY OF SACRAMENTO, OPINION

Defendants,

and

SEAN BARRY, Deputy Officer,

Sacramento County Sheriff’s

Department,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, District Judge, Presiding

Argued and Submitted September 12, 2016

San Francisco, California

Filed October 2, 2017

2 ISAYEVA V. BARRY

Before: Ronald M. Gould and Marsha S. Berzon, Circuit

Judges, and William K. Sessions III, * District Judge.

Opinion by Judge Gould

SUMMARY **

Civil Rights

The panel reversed the district court’s order denying

qualified immunity and remanded in an action brought

pursuant to 42 U.S.C. § 1983 and state law alleging that

Sacramento Sheriff’s officer Sean Barry used excessive

force when he tased and then fatally shot Paul Tereschenko.

The panel first held that it had jurisdiction over the

interlocutory appeal to determine whether, assuming the

facts most favorable to the plaintiff (Tereschenko’s wife),

Deputy Barry violated clearly established law when he tased

and then fatally shot Tereschenko.

The panel held that viewing the facts in the light most

favorable to the plaintiff, Tereschenko did not have a clearly

established right violated by Deputy Barry’s use of the taser.

Deputy Barry was therefore entitled to qualified immunity

for the tasing. The panel noted that Tereschenko, at more

than six-feet-tall and 250-plus-pounds was a very big man

The Honorable William K. Sessions III, United States District

*

Judge for the District of Vermont, sitting by designation.

**

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

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

ISAYEVA V. BARRY 3

who also was likely under the influence of drugs and was

violently resisting arrest. The panel further noted that the

Deputy Barry only tased Tereschenko once in the less-

incapacitating drive-stun mode.

The panel held that there were no existing precedents

suggesting that Deputy Barry’s use of deadly force violated

any clearly established right held by Tereschenko, and

therefore Deputy Barry was entitled to qualified immunity

for the fatal shooting. Construing the facts in plaintiff’s

favor, the panel determined that there were strong reasons to

believe that Tereschenko posed a risk of death or serious

injury to the officers or to the family members in the home.

Tereschenko clearly had the upper hand in a hand fight with

the officers. After being tased—which failed to immobilize

him—Tereschenko had succeeded in freeing both of his

arms, in pushing a deputy and, and in pummeling Deputy

Barry to the point that he began to pass out. The panel held

that even under the view of the facts most favorable to

plaintiff, Tereschenko was winning the fight with the

deputies, and was doing so quickly, highlighting the risks to

Deputy Barry. Under the circumstances, Tereschenko held

no clearly established right not to be shot by Deputy Barry.

The panel remanded for consideration of state law claims.

4 ISAYEVA V. BARRY

COUNSEL

Wendy Motooka (argued) and Robert L. Chalfant, Cregger

& Chalfant LLP, Sacramento, California, for Defendants-

Appellants.

Dale K. Galipo (argued) and Eric Valenzuela, Law Offices

of Dale K. Galipo, Woodland Hills, California; Peter

Goldstein, Law Office of Peter Goldstein, Culver City,

California; for Plaintiff-Appellee.

OPINION

GOULD, Circuit Judge:

On February 18, 2013, Sacramento County Sheriff’s

Deputy Sean Barry tased and fatally shot Paul Tereschenko

inside the home of Tereschenko’s father-in-law.

Tereschenko’s wife, Diana Isayeva, brought this action

under 42 U.S.C. § 1983 alleging, among other claims,

excessive force in violation of the Fourth Amendment. The

district court denied summary judgment for Deputy Barry.

We reverse and remand, holding that Deputy Barry is

entitled to qualified immunity.

I

The facts of this case are tragic. They involve a

combination of mental illness, drug abuse, and domestic

conflict that led to a loss of life in a confrontation between

Tereschenko and police officers. They also show the

dangers that arise when resistance and a brawl require

officers to make split-second decisions.

ISAYEVA V. BARRY 5

On February 18, 2013, Deputy Barry and Sacramento

County Sherriff’s Deputy Corbin Gray responded to two

family disturbance calls from the same address in

Sacramento, California. The first call came from

Tereschenko’s brother-in-law, who explained that

Tereschenko had moved into the home about a month earlier,

that he suffered from mental-health issues including hearing

voices in his head, and that he was now refusing the family’s

requests to move out. The second call came from

Tereschenko himself, who complained about being told to

leave the house. The deputies’ dispatch readout described

Tereschenko as “rambling” and “talking about random

things,” but stated that no weapons were involved in the

dispute. The deputies each carried a taser and a firearm, and

Deputy Barry also carried pepper spray.

Upon arrival, the deputies met two family members

outside the home, one of whom was Tereschenko’s brother-

in-law, the person who first called 911. The family members

told the deputies that Tereschenko was rambling and

speaking nonsense; that he was mentally ill or possibly was

mentally ill; that they believed he was under the influence of

methamphetamine; and that they did not think that he had

any weapons. They requested that the deputies remove

Tereschenko from the house. At his deposition, Deputy

Barry recalled that the family members told him

Tereschenko had asked them to kill his wife, Isayeva. But

during an interview on the day of the incident, Deputy Barry

explained it differently: He said that the family members

outside the house said Tereschenko had told them about

hearing voices in his head, and that the voices talked about

family members killing Isayeva—not that Tereschenko

urged the family members to kill his wife.

6 ISAYEVA V. BARRY

The deputies entered the house, and, once inside, spoke

with Isayeva’s father. According to Deputy Barry, the father

said something along the lines that Tereschenko “had stated

he wanted to kill [Isayeva].”

The deputies went into a nearby bedroom, where they

found Tereschenko and Isayeva. Tereschenko was large,

standing over 6 feet tall and weighing more than 250 pounds.

His skin was pockmarked, he was sweating profusely, he

spoke quickly, and he moved his hands rapidly. The

deputies testified that these physiological symptoms

indicated drug use, particularly methamphetamine.

The deputies spoke with Tereschenko for about seven to

ten minutes. During the conversation, Tereschenko told the

deputies that he was schizophrenic and had been in a mental

institution. Rambling, he talked about Ukrainian money and

asked that he be taken to an embassy or consulate. He asked

the deputies to “[p]lease help [him],” and said “I don’t know

what to do.” The deputies repeatedly told Tereschenko to sit

down and to calm down. In response, he would sit but then

stand back up again. Eventually, Tereschenko stayed seated

while the deputies questioned him.

Deputy Barry asked Isayeva whether Tereschenko used

any drugs or was diagnosed with any mental illnesses. She

said no and shook her head. Deputy Gray left the room

briefly to ask a family member when Tereschenko made his

comments about hearing voices and killing Isayeva, and

confirmed that it was earlier that same day. While Deputy

Gray was out of the room, Tereschenko began speaking

again and, in Deputy Barry’s words, “started to become

agitated a little bit.” At Deputy Barry’s request, Isayeva

stepped out of the room, though she remained by a partially

open door where she could still hear and to some extent see

what was happening inside the bedroom. Once Isayeva left,

ISAYEVA V. BARRY 7

Tereschenko got down on his knees and, according to

Deputy Barry, said “you’re gonna have to shoot or kill me.”

The deputies decided to detain Tereschenko pursuant to

California Welfare Institutions Code § 5150. This statute

allows peace officers in California upon probable cause to

take into custody for evaluation or treatment, for up to

72 hours, a person who is a danger to himself or others due

to a mental health disorder. See Cal. Welf. & Inst. Code

§ 5150(a).

Deputy Barry told Tereschenko that he was not being

arrested, only detained to be taken to a hospital. He then

asked Tereschenko to turn around and face the wall.

According to Deputy Barry, Tereschenko said “no, no,” and

stepped forward towards a wall off to the side. Deputy Gray

recounted that Tereschenko at first complied by turning

around and facing the wall behind him, but then kept turning

back around, so Deputy Barry had to give his order to face

the wall five times.

Deputy Barry grabbed Tereschenko’s left arm. Deputy

Gray explained that this move was in response to

Tereschenko suddenly reaching for something past Deputy

Barry, though Deputy Gray did not think the reach was a

violent gesture. Deputy Gray then grabbed Tereschenko’s

right arm and tried to put it in a control hold by locking

Tereschenko’s wrist. Tereschenko stiffened both arms and

resisted the attempts to move them. Both deputies told

Tereschenko to “stop resisting.” With Deputy Barry at

5 foot 7 inches and 185 pounds and Deputy Gray between

5 foot 10 and 5 foot 11 inches and 195 pounds, Tereschenko

was considerably larger than each of the deputies. Deputy

Barry described the moment: “we were just being tossed

around while still hanging onto [Tereschenko].” Through

the open doorway, Isayeva saw Tereschenko “push[] a little

8 ISAYEVA V. BARRY

bit the officers” while trying to “get his hands free or

something.” Deputy Barry said the struggle lasted “a few

seconds,” while Deputy Gray remembered it going on for

about fifteen seconds.

Deputy Barry next tased Tereschenko between his

shoulder blades in “drive-stun mode” 1 for a five-second

cycle. Deputy Gray and Isayeva remember Deputy Barry

warning Tereschenko that he was going to tase him. But

Deputy Barry recalled giving no such warning.

Through the open doorway, Isayeva saw Tereschenko

react violently to the tasing by going “extremely wild” and

screaming “like an animal” that was “wounded.” Deputy

Barry at once lost control of Tereschenko’s arm and flew up

against a wall. It is disputed whether Tereschenko purposely

threw Deputy Barry or inadvertently “bucked” him into the

wall. According to Deputy Gray, Tereschenko then punched

him in the face “so hard[ that he] flew back and fell” into

several birdcages along one wall. Deputy Barry saw Deputy

Gray get thrown across the room but did not see him get

punched.

Tereschenko turned back to Deputy Barry and hit him

repeatedly in the head, face, neck, and back. As Deputy

Barry received punches, his vision became hazy and tunnel-

like; he started to pass out. The deputy jumped backwards

towards a bed, where he could see Tereschenko still

“continuing towards” him with “balled fists” in the air.

Deputy Gray got up from the ground and saw Tereschenko

standing over Deputy Barry. Tereschenko was throwing

1

Drive-stun mode involves pushing two electrode contacts directly

against the individual and delivering an extremely painful electric shock.

Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011).

ISAYEVA V. BARRY 9

punches at the deputy while Barry lay on his back on the bed,

though Deputy Gray could not see whether any of the

punches landed, and does not remember whether

Tereschenko’s fists were balled at the time. Deputy Gray

tried to reengage Tereschenko by jumping on his back and

trying to place him in a “carotid hold,” 2 but Tereschenko

pushed the deputy off. From her position outside the room,

Isayeva did not see Tereschenko punch either of the

deputies, but she heard “very deep screaming.”

Now the brawl turned deadly. After being thrown off by

Tereschenko, Deputy Gray heard Deputy Barry yell “Shoot

him. Shoot him.” Isayeva remembers hearing something

like “I’m going to shoot,” but Deputy Gray disputes that

Deputy Barry used those precise words. According to

Deputy Barry, he just yelled “Shoot him.”

Deputy Gray stood up and began to unholster his gun.

Right then Deputy Barry, still seated or lying on the bed with

Tereschenko standing close in front of and possibly

advancing toward him, fired three shots, killing

Tereschenko.

Deputy Barry had visible injuries including bruises and

swelling around his eyes, bruising and redness to his left ear,

and bruising at the base of his neck. After an interview on

the shooting, Deputy Barry developed nausea and went to

2

A carotid hold involves the officer placing his or her arm around

the individual’s neck to “constrict[] blood flow through the carotid

artery, which supplies oxygenated blood to the brain.” Knapps v. City of

Oakland, 647 F. Supp. 2d 1129, 1143 (N.D. Cal. 2009), amended in part

(Sept. 8, 2009). If successful, “[u]nconsciousness occurs, which causes

the individual’s body to relax completely, but breathing continues

uninterrupted.” Id.

10 ISAYEVA V. BARRY

the emergency room, where he was diagnosed with a non-

serious head injury.

Isayeva filed this civil rights action under 42 U.S.C.

§ 1983 against Deputy Barry and the County of Sacramento,

alleging, among other claims, that Deputy Barry used

excessive force both when he tased and when he shot

Tereschenko. The district court denied summary judgment

for Deputy Barry, concluding that genuine disputes of

material fact precluded judgment on both the merits of the

claim and on qualified immunity.

Deputy Barry filed this interlocutory appeal, challenging

the district court’s ruling on qualified immunity.

II

We begin by addressing our jurisdiction to hear this

appeal. Under 28 U.S.C. § 1291, we normally have no

jurisdiction to hear interlocutory appeals from the denial of

summary judgment. See, e.g., Swint v. Chambers Cty.

Comm’n, 514 U.S. 35, 43 (1995). But an exception arises

where the movant was denied summary judgment based on

qualified immunity. Knox v. Sw. Airlines, 124 F.3d 1103,

1106 (9th Cir. 1997). Under the collateral order doctrine,

such denials are considered appealable “final decisions”

because “[q]ualified immunity is immunity from suit, not

just a defense to liability.” Id. The immunity “is effectively

lost if a case is erroneously permitted to go to trial.” Mitchell

v. Forsyth, 472 U.S. 511, 526 (1985). A subsequent appeal

from final judgment does not provide effective review. Id.

at 526–27.

Our jurisdiction does not extend to all denials of

qualified immunity on summary judgment. We do not have

jurisdiction to decide whether there is a genuine issue of

ISAYEVA V. BARRY 11

material fact. See Ames v. King Cty., 846 F.3d 340, 347 (9th

Cir. 2017) (“Where the district court has determined the

parties’ evidence presents genuine issues of material fact,

such determinations are not reviewable on interlocutory

appeal.”). We do, however, have jurisdiction to decide

whether, taking the facts in the light most favorable to the

non-moving party, the defendants are entitled to qualified

immunity—that is, we may “review a denial of qualified

immunity where a defendant argues . . . that the facts, even

when considered in the light most favorable to the plaintiff,

show no violation of a constitutional right, or no violation of

a right that is clearly established in law.” Id.

In Maropulos v. County of Los Angeles, we encouraged

district courts to help us evaluate our jurisdiction by

“articulat[ing] the basis upon which they deny qualified

immunity.” 560 F.3d 974, 976 (9th Cir. 2009) (per curiam).

Here, the district court stated in its order denying summary

judgment that genuine disputes of material fact existed

regarding whether the tasing and shooting were reasonable

uses of force, and that those disputes of fact precluded ruling

that Deputy Barry was entitled to qualified immunity. Then,

in an order certifying this appeal as frivolous, the district

court characterized its summary judgment ruling as resting

on the determination that there are genuine issues of material

fact, and concluded that Deputy Barry’s appeal was

frivolous.

But the district court misapplied the law on qualified

immunity. We must accept the district court’s determination

that there is a genuine dispute as to the circumstances under

which Deputy Barry tased and shot the decedent. But,

contrary to the district court’s reasoning, the existence of a

genuine dispute about the reasonableness of an officer’s use

of force does not preclude granting qualified immunity or

12 ISAYEVA V. BARRY

eliminate any basis for an immediate appeal of denial of

qualified immunity. See, e.g., Mattos v. Agarano, 661 F.3d

433, 446 (9th Cir. 2011) (en banc). Qualified immunity

involves two questions: (1) whether the defendant violated a

constitutional right, and (2) whether that right was clearly

established at the time of the alleged violation. See Pearson

v. Callahan, 555 U.S. 223, 232 (2009). Thus, as we recently

explained, an officer may be denied qualified immunity at

summary judgment in a Section 1983 case “only if (1) the

facts alleged, taken in the light most favorable to the party

asserting injury, show that the officer’s conduct violated a

constitutional right, and (2) the right at issue was clearly

established at the time of the incident such that a reasonable

officer would have understood [his] conduct to be unlawful

in that situation.” Hughes v. Kisela, 862 F.3d 775, 783 (9th

Cir. 2016) (quoting Torres v. City of Madera, 648 F.3d 1119,

1123 (9th Cir. 2011)). Either prong can be adjudicated on

appeal by taking the facts as most favorable to the plaintiffs

and applying the pertinent legal standards to those facts. See,

e.g., Pearson, 555 U.S. at 236 (holding, in a case involving

a qualified immunity determination at summary judgment,

that appellate judges may adjudicate the two prongs in either

order, according to “their sound discretion”); Mitchell v.

Washington, 818 F.3d 436, 446–47 (9th Cir. 2016)

(adjudicating both prongs on summary judgment);

Tarabochia v. Adkins, 766 F.3d 1115, 1121–28 (9th Cir.

2014) (same); Mueller v. Auker, 576 F.3d 979, 993–98 (9th

Cir. 2009) (same). We have jurisdiction over the current

appeal on that basis.

The conclusion that our jurisdiction is proper is

reinforced by looking at the issues Deputy Barry raises on

appeal. See, e.g., Mattos, 661 F.3d at 439 n.2 (concluding

that jurisdiction is proper in part based on the issues raised

by the officers). Deputy Barry contends that his use of both

ISAYEVA V. BARRY 13

(a) the taser, and (b) deadly force, against Tereschenko did

not violate clearly established law. We assume the facts

most favorable to the plaintiff, and have jurisdiction to

address (1) whether Deputy Barry violated clearly

established law when he tased Tereschenko; and (2) whether

Deputy Barry violated clearly established law when he

fatally shot Tereschenko.

III

We review the district court’s conclusions regarding

qualified immunity de novo. Robinson v. Prunty, 249 F.3d

862, 865–66 (9th Cir. 2001). Again, we consider all disputed

facts in the light most favorable to the nonmoving party,

Isayeva. See Glenn v. Washington Cty., 673 F.3d 864, 870

(9th Cir. 2011).

IV

Qualified immunity protects government officials from

suits for money damages “insofar as their conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Hughes,

862 F.3d at 782 (internal quotation marks omitted). Once

the official pleads qualified immunity, the burden is on the

plaintiff to prove two elements: (1) that the right was

violated; and (2) that the right was clearly established at the

time of the alleged misconduct. Mattos, 661 F.3d at 440;

Tarabochia, 766 F.3d at 1125. We have discretion to choose

which qualified immunity prong to address first. Pearson,

555 U.S. at 236. Here, Deputy Barry stresses the second

prong, whether Tereschenko’s rights not to be subject to the

tasing and to the shooting were “clearly established” on

February 18, 2013. We address that prong first and, given

our conclusion, need not address the other.

14 ISAYEVA V. BARRY

“A clearly established right is one that is sufficiently

clear that every reasonable official would have understood

that what he is doing violates that right.” Mullenix v. Luna,

136 S. Ct. 305, 308 (2015) (internal quotation marks

omitted). While “officials can still be on notice that their

conduct violates established law even in novel factual

circumstances,” Hope v. Pelzer, 536 U.S. 730, 741 (2002),

“existing precedent must have placed the statutory or

constitutional question beyond debate,” Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011). “Put simply, qualified immunity

protects all but the plainly incompetent or those who

knowingly violate the law.” Mullenix, 136 S. Ct. at 308

(internal quotation marks omitted).

Deputy Barry contends that his use of a taser and of

deadly force did not violate clearly established Fourth

Amendment prohibitions against the use of excessive force.

Under the Supreme Court’s leading case, Graham v.

Connor, determining whether the use of force to effect a

seizure was unreasonable under the Fourth Amendment—

and therefore unlawful—requires “a careful balancing of the

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

Amendment interests against the countervailing

governmental interests at stake.” 490 U.S. 386, 396 (1989)

(internal quotation marks omitted). In evaluating the

governmental interest, we generally consider factors

including (a) the severity of the suspect’s alleged crime;

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

officers’ safety; and (c) whether the suspect was actively

resisting arrest or attempting to escape. Newmaker v. City of

Fortuna, 842 F.3d 1108, 1116 (9th Cir. 2016). Other factors

relevant to the reasonableness of force “include the

availability of less intrusive alternatives to the force

employed, whether proper warnings were given and whether

it should have been apparent to officers that the person they

ISAYEVA V. BARRY 15

used force against was emotionally disturbed.” Glenn,

673 F.3d at 872. Of all these considerations, the “most

important” is “whether the suspect posed an immediate

threat to the safety of the officers or others.” S.B. v. Cty. of

San Diego, — F.3d —, No. 15-56848, 2017 WL 1959984, at

*4 (9th Cir. May 12, 2017) (internal quotation marks

omitted). When an officer uses deadly force, this factor

becomes a strict requirement: the officer must have

“probable cause to believe that the suspect poses a

significant threat of death or serious physical injury.”

Tennessee v. Garner, 471 U.S. 1, 3 (1985).

But these general standards are only the starting point.

The dispositive question is “whether the violative nature of

particular conduct is clearly established.” Mullenix, 136 S.

Ct. at 308 (internal quotation marks omitted). This question

must be answered “not as a broad general proposition,” but

with reference to the facts of specific cases. Id. (internal

quotation marks omitted). “We do not require a case directly

on point, but existing precedent must have placed the

statutory or constitutional question beyond debate.” al-

Kidd, 563 U.S. at 741. In typical cases, the plaintiff

“identif[ies] a case where an officer acting under similar

circumstances as [the defendant] was held to have violated

the Fourth Amendment.” S.B., 2017 WL 1959984, at *6

(quoting White v. Pauly, 137 S. Ct. 548, 552 (2017) (per

curiam)). In the absence of “a case directly on point,” we

compare “specific factors” relevant to the excessive force

inquiry to determine whether a reasonable officer would

have known that the conduct in question was unlawful. 3

3

Of course, in a case where the conduct is “obvious[ly]” unlawful,

we do not require similarly “obvious” precedent to clearly establish the

law. Hughes, 862 F.3d at 785 (internal quotation marks omitted). If that

were the standard, “officers would escape responsibility for the most

16 ISAYEVA V. BARRY

Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010);

see also Hughes, 862 F.3d at 779–80 (enumerating factors

relevant to determining whether an officer’s actions are

objectively reasonable).

A

We begin with Deputy Barry’s use of the taser. The

district court found two genuine factual disputes that are

relevant to the reasonableness of the tasing. One was

whether Tereschenko urged others to kill Isayeva or merely

heard voices saying someone was going to kill her. The

other dispute was whether Deputy Barry gave a warning

before tasing Tereschenko. Remaining within the bounds of

our jurisdiction, we accept the district court’s findings that

these factual disputes are genuine and supported by the

record. See George v. Morris, 736 F.3d 829, 834 (9th Cir.

2013).

But resolving these disputes in Isayeva’s favor and

granting her all reasonable factual inferences, the record up

to the tasing shows this: Deputies Barry and Gray responded

to a domestic disturbance call about an individual with

possible mental health issues who was refusing to leave a

home. Deputy Barry learned that Tereschenko was

unarmed, but might have been under the influence of

methamphetamine and earlier was hearing voices in his head

mentioning the killing of others. Tereschenko’s appearance

and mannerisms confirmed that he was probably high on

methamphetamine or other drugs. At over six feet tall and

more than 250 pounds, he was larger than each of the

egregious forms of conduct simply because there was no case on all fours

prohibiting that particular manifestation of unconstitutional conduct.”

Deorle v. Rutherford, 272 F.3d 1272, 1275 (9th Cir. 2001).

ISAYEVA V. BARRY 17

deputies. While speaking to the deputies for seven to ten

minutes, Tereschenko asked for help, mentioned that he was

schizophrenic, and rambled about random topics. He was

eventually compliant with the deputies’ requests to sit,

though he later started to become agitated and said “you’re

gonna have to shoot or kill me.” Deputy Barry told

Tereschenko that he was going to take him to a hospital and

asked him to turn around. Tereschenko initially complied,

but kept turning back around. Fearing that Tereschenko was

reaching for something, Deputy Barry grabbed one of his

arms. Deputy Gray grabbed the other. Tereschenko

stiffened his arms and tried to get his hands free by pushing

the officers and resisting Deputy Gray’s attempt at a control

hold. Both deputies told Tereschenko to stop resisting. The

deputies struggled with the resisting Tereschenko, who was

tossing them around. Then, Deputy Barry tased

Tereschenko in drive-stun mode for a five-second cycle.

As of February 18, 2013, the date of the incident, three

key published cases from the Ninth Circuit established when

the use of a taser was unreasonable under the Fourth

Amendment.

The first is Bryan v. MacPherson. The plaintiff in Bryan

was a possibly-mentally-ill twenty-one-year-old male pulled

over for failing to wear his seatbelt. Id. at 822, 829. After

not hearing the officer’s command to stay in his vehicle, the

plaintiff exited his car. Id. at 822. He was visibly upset,

shouting gibberish and cursing, but made no threatening

statements. Id. Without warning, the officer tased the

plaintiff once in “dart mode,” 4 causing the plaintiff to lose

4

Dart mode involves propelling a pair of metal darts at a rate of

more than 160 feet per second and delivering a 1200-volt electrical

18 ISAYEVA V. BARRY

muscle control and fall face first to the pavement, knocking

out four teeth. Id. at 822–24. Construing the facts in the

light most favorable to the plaintiff, at the time of the tasing

he was standing fifteen to twenty-five feet away from the

officer, facing the other direction, and not moving. Id. at

823. Viewing the facts in that manner, we held that the

tasing violated the Fourth Amendment. Id. at 833.

Both Tereschenko and the plaintiff in Bryan were

unarmed and were tased without warning. Both were

possibly mentally ill, were agitated, and failed to comply

with at least one law enforcement command. And neither

had committed a serious crime.

However, important features distinguish the two uses of

force. For starters, Bryan involved a greater degree of force.

Deputy Barry used the taser in “drive-stun mode,” which

delivered an electric shock to Tereschenko that, while

undoubtedly painful, did not override his central nervous

system or result in temporary paralysis, as did the “dart

mode” tasing in Bryan. See Mattos, 661 F.3d at 443. There

is also no indication from the record that Tereschenko’s

tasing injured him, while the Bryan plaintiff’s tasing led to

four missing teeth and facial abrasions—injuries that, we

concluded, a reasonable officer would have foreseen. See

Bryan, 630 F.3d at 824.

Perhaps most importantly, Tereschenko also posed a

greater and more immediate threat. He was engaged in a

struggle with the deputies, physically resisting them, and

indeed was tossing them around, while the plaintiff in Bryan

was fifteen to twenty-five feet away facing the opposite

charge that instantly overrides the recipient’s central nervous system,

causing temporary paralysis. Id. at 824.

ISAYEVA V. BARRY 19

direction. Deputy Barry also had reason to believe that

Tereschenko was under the influence of drugs, which

indicated that he might be less willing or able to control

himself. There was no reason to believe the same for the

plaintiff in Bryan.

Because of these differences, Bryan would not have put

Deputy Barry on notice that tasing Tereschenko amounted

to unconstitutionally excessive force.

The next two cases, Brooks v. City of Seattle and Mattos

v. Agarano, were heard together as consolidated appeals

before an en banc panel of this court. See Mattos, 661 F.3d

433. In Brooks, the plaintiff was a seven-months-pregnant

woman who was pulled over for speeding. Id. at 436. After

she refused to sign a traffic citation and to exit her car, one

of three officers present held up a taser and asked if the

plaintiff knew what it was. Id. at 437. The plaintiff indicated

that she did not. Id. Another officer grabbed the plaintiff’s

arms and tried to remove her from the vehicle, but the

plaintiff “stiffened her body and clutched the steering

wheel.” Id. The first officer then tased the plaintiff in drive-

stun mode three separate times within less than a minute. Id.

In Mattos, the plaintiff was a woman involved in a

domestic dispute with her husband. Id. at 438. Three

officers responded, and the plaintiff’s husband, who was

large and smelled of alcohol, began yelling at them. Id. at

438–39. One officer tried to arrest the husband, but the

plaintiff stood between the officer and her husband and did

not move. Id. at 439. As the officer moved forward, the

plaintiff extended her arms to prevent him from running into

her chest. Id. He asked, “Are you touching an officer?” Id.

The plaintiff tried to calm the officers and her husband down

so as not to wake her sleeping children, but then one of the

20 ISAYEVA V. BARRY

officers, without warning, tased the plaintiff once in dart

mode. Id.

In both Brooks and Mattos, we held that when the record

was construed in the plaintiff’s favor the use of the taser was

unreasonable under the Fourth Amendment. Id. at 452.

There are some similar facts. Tereschenko was not

armed. Nor were the plaintiffs in Brooks and in Mattos.

None of these plaintiffs had committed a serious crime. And

none was given an adequate warning. Tereschenko and the

plaintiff in Brooks both resisted the officers by stiffening up.

And all three plaintiffs tried to frustrate the officers by

plaintiffs’ physical efforts.

But the resistance from Tereschenko posed a much

greater threat to the officers than did that of the plaintiffs in

Brooks and Mattos. Tereschenko was a very big man. As

we previously said, he was a more than six-foot-tall and

more than 250-pound man who was sought to be detained by

two much smaller officers. This disparity in size posed

obvious risks of physical harm to the officers. In both

Brooks and Mattos, the person tased was a woman—one of

whom was seven-months pregnant—and the tased woman

was confronting three officers. The plaintiff in Mattos, who

merely extended her arms, gave the officer far less physical

resistance than did Tereschenko, who was strong enough to

toss the deputies around and frustrate their physical efforts

to constrain him. And Tereschenko’s violent resistance

came with the deputies’ knowledge that Tereschenko was

likely under the influence of drugs. The plaintiffs in Brooks

and Mattos were—as far as the records showed—sober.

The nature of the government’s intrusion was also more

severe in both Brooks and Mattos than what had occurred in

this case at the time of the tasing. In Brooks, the officer tased

ISAYEVA V. BARRY 21

the plaintiff three times in less than a minute, while Deputy

Barry tased Tereschenko only once. In Mattos, the officer

tased the plaintiff once in dart mode, not in the less-

incapacitating drive-stun mode that Deputy Barry deployed

against Tereschenko.

These differences show that neither Brooks nor Mattos

clearly established on February 18, 2013 that tasing

Tereschenko would violate the Fourth Amendment. Nor do

the two cases in combination with each other or with Bryan

put the constitutionality of Deputy Barry’s actions “beyond

debate.” al-Kidd, 563 U.S. at 741. Viewing the facts in the

light most favorable to the plaintiff Isayeva, we hold that

Tereschenko did not have a clearly established right violated

by Deputy Barry’s use of the taser. Deputy Barry is

therefore entitled to qualified immunity for the tasing. We

need not and do not reach the first prong of qualified

immunity, asking whether Deputy Barry’s use of the taser

was reasonable under the Fourth Amendment. See Pearson,

555 U.S. at 236. It is sufficient for purposes of qualified

immunity merely to conclude that no clearly established law

was violated by Deputy Barry in connection with his use of

a taser against the resisting Tereschenko.

B

We next address Deputy Barry’s subsequent use of

deadly force against Tereschenko. The district court found

two genuine factual disputes that are relevant to the

reasonableness of the shooting. First, it found disputed

whether, immediately after being tased, Tereschenko had

purposely thrown Deputy Barry against a wall or merely had

inadvertently “bucked” him into a wall. Second, the district

court found disputed whether Tereschenko subsequently

punched, pushed, or threw Deputy Gray.

22 ISAYEVA V. BARRY

The district court also found that several facts were not

subject to genuine dispute. It found that no evidence

supported that Tereschenko at any point had reached for a

weapon, and that no evidence showed that Tereschenko was

standing still when shot. 5 It also found that while there was

a dispute over whether Deputy Barry said “I’m going to

shoot,” it was undisputed that he at least yelled “Shoot him.”

We accept these factual findings by the district court. See

George, 736 F.3d at 834.

Construing all disputed facts in Isayeva’s favor, we

summarize the record after the tasing as follows: The shock

from the tasing caused Tereschenko to buck Deputy Barry

into a wall. Tereschenko then turned to Deputy Gray, and

pushed him backwards. Tereschenko was screaming like a

wounded animal. He repeatedly hit Deputy Barry on the

head, neck, and back. Deputy Barry was losing

consciousness when he jumped backward onto the bed.

Tereschenko continued to move towards him with balled

fists in the air. Deputy Gray jumped on Tereschenko’s back

and tried to put him in a chokehold, but Tereschenko pushed

him off. Deputy Barry yelled “Shoot him.” With

Tereschenko still moving towards him, Deputy Barry fired

three shots, killing Tereschenko. Deputy Barry was banged

up quite a bit by the struggle. He sustained cuts and bruises

around his eyes, ears, and the base of his neck, as well as a

minor head injury.

5

Although a decedent’s version of events may be constructed

circumstantially from “inconsistencies in the testimony of law

enforcement,” George, 736 F.3d at 834, the district court declined to

credit a potential inconsistency in Deputy Barry’s testimony about

whether Tereschenko was standing still or was advancing when he was

shot.

ISAYEVA V. BARRY 23

Isayeva contends that, under these circumstances,

Garner clearly established that the shooting was

unreasonable. She emphasizes Garner’s requirement that

officers may not use deadly force absent “probable cause to

believe that the suspect poses a significant threat of death or

serious physical injury to the officer or others.” 471 U.S. at

3. She argues that Tereschenko posed no such threat of death

or serious injury. 6 But there are no existing precedents,

including Garner, suggesting that Deputy Barry’s use of

deadly force violated any clearly established right held by

Tereschenko.

The standards from Garner and Graham “are cast at a

high level of generality,” so they ordinarily do not clearly

establish rights. Brosseau v. Haugen, 543 U.S. 194, 199

(2004). Rather, it is the facts of particular cases that clearly

establish what the law is. See White, 137 S. Ct. at 552.

Garner involved an officer shooting an individual to stop

him from escaping a non-violent crime scene over a chain

link fence. 471 U.S. at 3–4. That is quite different from an

officer shooting an individual while enmeshed in, and on the

losing end of, a serious fight with an opponent who is bigger

than the shooting officer and possibly high on drugs. The

officer in Garner had little reason to think that if the suspect

escaped over the fence, he would pose any threat of death or

serious physical injury to himself or to anyone else. See id.

at 21. In sharp contrast, Deputy Barry took repeated blows

to the head and was losing consciousness, giving him reason

to believe that serious injury to himself or to Deputy Gray—

or possibly to the other family members in the house,

6

At oral argument, Isayeva’s counsel stated that she was also

proceeding on a “provocation theory” of liability. The Supreme Court

recently held that the Fourth Amendment provides no basis for such a

theory. See Cty. of Los Angeles v. Mendez, 137 S. Ct. 1539, 1544 (2017).

24 ISAYEVA V. BARRY

including Isayeva standing just outside the door—could

result if Tereschenko was not stopped.

There is an exception to the rule that the Garner standard

does not clearly establish the law governing when the use of

deadly force is lawful. In an “obvious case,” Garner’s

general test can “‘clearly establish’ the answer, even without

a body of relevant case law.” Brosseau, 543 U.S. at 199.

We recently held in Hughes that an officer was not entitled

to qualified immunity for his shooting of an individual in

part because, when the facts were construed in the plaintiff’s

favor, the officer’s use of deadly force was “obvious[ly]”

unlawful. 862 F.3d at 785 (internal quotation marks

omitted). Resolving all factual disputes in favor of the

plaintiff, at the time of the shooting the plaintiff in Hughes

held a kitchen knife at her side as she calmly spoke to

another person outside of her home. Id. at 778. The plaintiff

had not responded to an officer’s rapid demands to drop the

knife, but there was also no indication that the plaintiff had

understood the commands of the officer, who was on the

other side of a fence. Id. We held that, taking the facts of

that case taken in the light most favorable to the plaintiff and

comparing them to the facts in available precedent involving

excessive force, no officer could have reasonably believed

that the plaintiff posed a risk of serious injury or death. The

plaintiff’s “right to walk down her driveway holding a knife

without being shot” was clearly established. Id. at 785.

Unlike in Hughes, here we conclude that Deputy Barry’s

use of force was not obviously unlawful. Indeed, construing

the facts in Isayeva’s favor, there are strong reasons to

believe that Tereschenko posed a risk of death or serious

injury to the officers or to the family members in the home.

First, Tereschenko clearly had the upper hand in the fight.

After being tased—which failed to immobilize

ISAYEVA V. BARRY 25

Tereschenko—Tereschenko had succeeded in freeing both

of his arms, in pushing Deputy Gray, and in pummeling

Deputy Barry to the point that he began to pass out. Deputy

Gray had tried without success to use a chokehold to subdue

Tereschenko, but Tereschenko just threw him off.

Tereschenko’s repeated hits to Deputy Barry’s head and face

left the deputy with facial bruises and a minor head injury.

Even under the view of the facts most favorable to plaintiff,

Tereschenko was winning this fight, and was doing so

quickly, highlighting the risks to Deputy Barry.

That Deputy Barry began to pass out when he was being

beaten turned this dangerous fight into a potentially deadly

one. If a police officer is knocked out during a struggle, it

increases the risk to the officer and others because it gives

the attacker an opportunity to hit the officer no longer able

to defend himself, or to grab the officer’s gun. Deputy Barry

testified that if he “got knocked out, [he] feared

[Tereschenko] was going to kill [the deputies].” Had

Tereschenko landed a few more blows before Deputy Barry

fired at him, Tereschenko could have either beat him while

defenseless, potentially causing serious injury, or gotten

hold of his firearm. The record does not show that

Tereschenko at any point tried to take Deputy Barry’s gun,

but the possibility that he may have done so if Deputy Barry

lost consciousness underscores the high risks posed by the

violent situation as perceived objectively by a reasonable

officer.

Furthermore, the deputies had information that made

Tereschenko more threatening than indicated by his physical

abilities alone. Tereschenko was likely under the influence

of methamphetamine or some other drugs, and so was

possibly less able to control himself. Once Deputy Barry

began to pass out, the possibility that Tereschenko might

26 ISAYEVA V. BARRY

lack the self-control to stop himself from seriously injuring

or killing the deputies made the situation more dangerous.

Tereschenko’s earlier mention of voices in his head talking

about family members killing Isayeva also raised the threat

level. The government interest in using force is usually less

strong when an individual is mentally ill, see Deorle,

272 F.3d at 1283, but here Tereschenko’s apparent mental

condition led him to recount homicidal voices, and the

knowledge of that fact would increase the perceived threat

to any reasonable officer.

Other factors support that Deputy Barry’s use of deadly

force was not obviously unlawful. Deputy Barry yelled

“Shoot him” before firing, and there is no reason to think that

Tereschenko did not hear the deputy. These words gave

notice to Tereschenko that more struggle could result in

gunshots, making Deputy Barry’s use of force more

reasonable under the Fourth Amendment. See id. at 1282.

The officers also had no reasonably effective alternative

to deadly force. See Glenn, 673 F.3d at 876. Using physical

force against Tereschenko plainly did not work; the officers

were quickly losing in hand-to-hand combat. By the time of

the shooting, Deputy Barry had already tried tasing

Tereschenko, and it seemed to only make Tereschenko more

angry and aggressive. Deputy Barry carried pepper spray,

but using it in such close proximity to Tereschenko and

Deputy Gray could have backfired, either by further

enraging Tereschenko, as did the tasing, or by incapacitating

the deputies as much or more than incapacitating

Tereschenko. Deputy Gray testified that he did not carry

pepper spray on the day of the incident precisely because “it

just irritates people more and gets all over myself and my

partners more than the person that we are trying to apply it

to.” Escaping and calling for backup was also not a practical

ISAYEVA V. BARRY 27

option. Being close to unconsciousness, Deputy Barry likely

could not escape himself, and if Deputy Gray tried to leave

the room, Deputy Barry would have been left alone in

serious danger. Deputy Barry was ultimately “forced to

make [a] split-second judgment[]—in circumstances that

[were] tense, uncertain, and rapidly evolving—about the

amount of force that [was] necessary.” Graham, 490 U.S. at

397.

Nor does our own precedent clearly establish that Deputy

Barry’s use of deadly force was unreasonable. Isayeva cites

only one case from our circuit where an officer was involved

in hand-to-hand combat with an individual, the officer used

deadly force, and we held that the force used was excessive.

See Hopkins v. Andaya, 958 F.2d 881 (9th Cir. 1992), as

amended (Mar. 24, 1992) (per curiam). In Hopkins, when

the record was construed in favor of the plaintiff, the fight

involved the decedent hitting the officer once or twice to the

arm or head, and the officer suffering only a minor cut on his

arm and bruises on his elbow, back, and leg. Yet, without

warning, the officer shot the decedent. Id. at 884, 886. We

concluded that the officer “was never in any serious danger”

and that the use of deadly force was unreasonable. Id. at 886.

Unlike the present case, the decedent in Hopkins at no point

had the upper hand in the fight, and the officer never came

close to passing out. The decedent in Hopkins posed a much

lesser threat to officer and citizen safety than did

Tereschenko. Hopkins, like Garner, does not clearly

establish that Deputy Barry’s use of deadly force was

unlawful.

The above discussion shows that not only was it not

obvious that Deputy Barry’s use of deadly force was

excessive, but that there are strong reasons supporting the

reasonableness of the shooting. We conclude that under the

28 ISAYEVA V. BARRY

circumstances of this case, Garner does not clearly establish

Tereschenko’s right to be free from deadly force by Deputy

Barry. Though our analysis discussed factors relevant to

whether Deputy Barry’s use of deadly force was reasonable,

we reach no conclusion on that issue. See Pearson, 555 U.S.

at 236. Instead, we rest our holding on the second prong of

qualified immunity, that Tereschenko held no clearly

established right not to be shot by Deputy Barry.

V

We hold that Deputy Sean Barry is entitled to qualified

immunity for the tasing and fatal shooting of Paul

Tereschenko. This disposes of the federal claim that

excessive force in violation of the Fourth Amendment was

used by Deputy Barry. Because state law claims remain

pending, we remand for further proceedings consistent with

this opinion.

REVERSED and REMANDED.