Lee Rice, II v. Dale Morehouse

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEE ARTHUR RICE II, No. 18-35459

Plaintiff-Appellant,

D.C. No.

v. 1:13-cv-00441-

BLW

DALE MOREHOUSE; NICK SHAFFER;

JEFFREY A. HILL; MARK

ABERCROMBIE, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted November 8, 2019

Portland, Oregon

Filed March 8, 2021

Before: Ronald Lee Gilman, * Richard A. Paez, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Paez

*

The Honorable Ronald Lee Gilman, United States Circuit Judge

for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

2 RICE V. MOREHOUSE

SUMMARY **

Civil Rights

The panel reversed the district court’s summary

judgment in favor of police officers on the basis of qualified

immunity, and remanded, in an action brought pursuant 42

U.S.C. § 1983 alleging that defendants used excessive force

when they executed a take-down maneuver while holding

plaintiff in a “police lead” position; that is, they tripped

plaintiff so that he would fall to the ground as they held his

arms behind his back.

The panel first rejected defendants’ contention that

plaintiff’s Notice of Appeal failed to comply with the

requirements of Federal Rule of Appellate Procedure 3(c)

because plaintiff did not specifically indicate that he was

appealing from the district court’s summary judgment order

granting defendants’ motion for summary judgment on the

take-down. The panel concluded that plaintiff provided

sufficient notice to defendants of the intended scope of his

appeal and defendants did not suffer prejudice: they had an

opportunity to, and actually did, fully brief the issue.

Viewing the facts in the light most favorable to plaintiff,

as was required, the panel concluded that a reasonable jury

could find that plaintiff engaged in passive resistance and

that defendants’ take-down of plaintiff involved

unconstitutionally excessive force. Furthermore, because

the right to be free from “the application of non-trivial force

**

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

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

RICE V. MOREHOUSE 3

for engaging in mere passive resistance” was clearly

established before December 2011, defendants were not

immune from suit.

COUNSEL

Craig H. Durham (argued), Ferguson Durham PLLC, Boise,

Idaho, for Plaintiff-Appellant.

Erica J. White (argued), Heather H. McCarthy, and

Catherine A. Freeman, Deputy Prosecuting Attorneys; Jan

M. Bennetts, Ada County Prosecuting Attorney, Boise,

Idaho, for Defendants-Appellees Dale Morehouse and Nick

Shaffer.

Scott B. Muir (argued), Deputy City Attorney; Boise City

Attorney’s Office, Boise, Idaho, for Defendants-Appellees

Mark Abercrombie and Jeffrey A. Hill.

OPINION

PAEZ, Circuit Judge:

In the early morning of December 26, 2011, while

driving with his family on Interstate 84 near Boise, Idaho,

Lee Arthur Rice II was stopped by a state police officer for

failing to signal for a full five seconds before changing lanes.

Because he believed that there was no basis for the stop, Rice

declined to give the officer his driver’s license and car

registration and repeatedly asked to speak to the officer’s

supervisor. The officer radioed for support, and over a dozen

officers responded. Several officers pulled Rice out of the

car. As they led him to the rear of the car, they tripped him

4 RICE V. MOREHOUSE

so that he fell to the ground, pinned him down, and

handcuffed him. Rice fell on his face and suffered long-term

physical injuries and emotional distress as a result of the

encounter. He ultimately filed suit against the officers under

42 U.S.C. § 1983 for violating his constitutional rights,

including his Fourth Amendment right to be free from

unreasonable seizure.

Rice appeals the district court’s order granting partial

summary judgment on the basis of qualified immunity in

favor of the officers who tripped him to the ground. Because

genuine disputes of material fact preclude summary

judgment, and the applicable law was clearly established at

the time of the incident, we reverse. 1

I. BACKGROUND

A. FACTUAL BACKGROUND

The following facts were either undisputed at summary

judgment or, if disputed, are recounted in the light most

favorable to Rice, the non-moving party.

On December 26, 2011, at about 3:30 a.m., Rice was

driving with his wife and her two teenage daughters when

Idaho State Police Officer Janet Murakami stopped him.2

1

Rice also appeals the district court’s pretrial rulings precluding his

expert witnesses from testifying at trial on other aspects of his Fourth

Amendment excessive force claim. We affirm the district court’s

evidentiary rulings in a memorandum disposition filed concurrently with

this opinion.

2

Murakami’s dash-mounted video camera provides a visual account

of all of the events described here. See Joint Exhibit 1001 (“Jt Ex.

1001”). Murakami’s microphone was turned on around the time she

announced that Rice was under arrest. Jt Ex. 1001 at 5:50.

RICE V. MOREHOUSE 5

According to Murakami, she initiated the traffic stop

because Rice failed to signal for five seconds before

changing lanes, Idaho Code § 49-808(1)–(2), and she

suspected that Rice was driving under the influence. Rice

pulled over to the right shoulder of the freeway, just over the

fog line. 3 Murakami approached the passenger’s side of the

car and asked for Rice’s license, car registration, and proof

of insurance. Rice showed Murakami his license through the

window but declined to give Murakami the other documents.

Murakami returned to her car and requested a “Code 3

assist” through her radio. According to the government’s

expert at summary judgment, a “Code 3” request is

considered the “most urgent” request for backup officers and

generally requires that they respond immediately and with

lights and sirens running.

While assistance was on the way, Murakami re-

approached Rice’s car and again asked him for his license,

registration, and proof of insurance. He declined. Murakami

then walked to the driver’s side of the car, opened the door,

instructed Rice to exit, and announced that Rice was under

arrest for “obstruction and delay.” Rice provided his name

but insisted “I will not get out of this car.”

Murakami returned to her car and made two additional

radio calls. In the second call, she radioed an update 4 and

3

In later criminal proceedings against Rice, the state court declared

the stop unlawful, and the prosecution dismissed all charges against

Rice.

4

As she explained at trial, Murakami radioed a “Code 4” update

because she “was trying to tell my dispatch – because I could hear all the

sirens from everywhere – that I just – I was okay, not to worry about me.

I just needed one or two units.” A Code 4 indicated “she was no longer

in danger.” But the uncontroverted evidence at trial was that the arriving

6 RICE V. MOREHOUSE

stated “just uh waiting for my support units to get here before

I extract this uh driver.” Moments later, several police

officers arrived, including Defendants-Appellees Dale

Morehouse and Nick Shaffer. Murakami spoke to the

arriving officers and explained:

MURAKAMI: K he’s just not wanting, sir,

yeah just one unit’s necessary – he’s just not

wanting to comply with my instructions.

UNNAMED OFFICER: Okay.

MURAKAMI: He’s already been told he’s

under arrest.

UNNAMED OFFICER: Okay.

MURAKAMI: All I wanted was his license,

so I’m just going to need somebody to help

me get him out of the car. 5

UNNAMED OFFICER: Okay.

Although the record does not clearly identify which officers

Murakami was speaking to, in their declarations in support

of summary judgment, Morehouse and Shaffer paraphrased

Murakami’s comments in describing what they heard.

officers, who used different radio frequencies, did not receive that

update.

5

In the dash-cam video, Murakami can be seen walking toward

Rice’s car, but facing away from it, as she gave this final instruction.

RICE V. MOREHOUSE 7

To determine the lawfulness of the officers’ conduct

throughout the encounter, the district court divided the

events that followed into three stages: (1) officers pulling

Rice from his car, (2) officers implementing a “take-down”

of Rice, and (3) officers holding Rice on the ground in a

“scrum” 6 before handcuffing him. For clarity, we adopt the

same three stages here.

1. The Removal

Murakami re-approached Rice’s car from the driver’s

side, with Morehouse directly behind her. Murakami

repeatedly instructed Rice to get out of the car and threatened

to break his car window if he did not. Rice declined and

repeatedly asked to speak to Murakami’s supervisor, but did

roll down his window and unlock the car. Murakami opened

Rice’s door, and, together, Murakami and Morehouse pulled

him out from the car. In his declaration offered in opposition

to summary judgment, Rice maintains that he did not resist

the officers as they pulled him out of the car.

2. The Take-Down

After Murakami and Morehouse pulled Rice from the

car, they attempted to hold Rice in a “police lead” position,

grabbing his wrist with one hand and triceps with the other.

Morehouse grabbed Rice’s right arm, while Murakami

grabbed his left. When Murakami was unable to grip Rice’s

arm, Shaffer stepped in, took Rice’s left arm, and assumed

the police lead position. Rice again maintains that he did not

resist the officers. Nonetheless, as they approached the rear

6

A “scrum” is “[a] chaotic struggle or tussle, esp. one involving

large numbers of people; a mêlée; a battle.” See Scrum, Oxford English

Dictionary (3d ed. 2018), https://www.oed.com/view/Entry/173724 (last

visited July 15, 2020).

8 RICE V. MOREHOUSE

of the car, Shaffer and Morehouse tripped Rice and forcibly

threw him to the ground using a “take-down” maneuver.

Rice landed face-first on the pavement and suffered extreme

pain.

3. The Scrum

While Rice lay on the ground, officers repeatedly struck

and kneed him, wrenched his arms and shoulders, and

twisted his fingers. He repeatedly asked “what are you

doing?” and “why are you doing this?” Eventually, the

officers handcuffed Rice, picked him up from the pavement,

and took him to Murakami’s car.

Criminal misdemeanor charges were filed against Rice

but were later dismissed after the state court concluded that

Murakami lacked reasonable suspicion or probable cause to

stop Rice.

B. PROCEDURAL HISTORY

In 2013, Rice filed a pro se suit in the District Court for

the District of Idaho against the officers involved in the

arrest. His primary claims involved violations of his Fourth

Amendment right to be free from excessive force and were

brought against defendant Officers Murakami, Morehouse,

Shaffer, Mark Abercrombie, and Jeffrey Hill. After Rice

obtained counsel, defendants filed motions for summary

judgment. The district court ruled on the motions in

December 2014 and April 2015. The court (1) denied

Murakami qualified immunity as to her Code 3 call, but

granted her motion in all other respects; (2) denied

Morehouse and Shaffer qualified immunity as to their

involvement in the scrum, but granted qualified immunity as

to the take-down; and (3) denied qualified immunity to the

RICE V. MOREHOUSE 9

other officers involved in the scrum, including Abercrombie

and Hill.

Defendants appealed the qualified-immunity rulings. In

November 2016, we affirmed except as to Murakami. We

held that she was entitled to qualified immunity for her Code

3 call. Rice v. Murakami, 671 F. App’x 472 (9th Cir. 2016).

As the panel explained, “[t]hough it is true that a person may

be held responsible for the natural consequences of her

actions, it is far from established that an officer should have

reasonably foreseen that other officers responding to a call

would use excessive force . . . .” Id. at 473.

The case proceeded to trial against defendants

Morehouse, Shaffer, Abercrombie, and Hill for their alleged

use of excessive force during the scrum. Following the

presentation of all evidence by Rice, the district court

granted judgment as a matter of law under Federal Rule of

Civil Procedure 50(a) to all defendants except Abercrombie.

The jury ultimately returned a verdict in favor of

Abercrombie.

Rice filed a notice of appeal without counsel. We

subsequently appointed pro bono counsel to represent him

on appeal.

II. JURISDICTION

As a threshold matter, we address whether Rice’s Notice

of Appeal complies with the requirements of Federal Rule of

Appellate Procedure 3(c) such that we have jurisdiction.

Morehouse and Shaffer argue that it does not because Rice

did not specifically indicate that he was appealing from the

district court’s April 2015 summary judgment order granting

their motion for summary judgment on the take-down. We

disagree.

10 RICE V. MOREHOUSE

To take an appeal as of right in federal court, a party must

file a notice of appeal within the time allowed by Rule 4.7

Fed. R. App. P. 3(a). The notice must, among other things,

“designate the judgment, order, or part thereof being

appealed.” Fed. R. App. P. 3(c)(1)(B).

Although Rule 3’s requirements are jurisdictional,

Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 (1988),

“the Rule cautions against their formalistic application,”

West v. United States, 853 F.3d 520, 522 (9th Cir. 2017)

(citing Fed. R. App. P. 3(c)(4)). When a party’s intent to

appeal is objectively clear, “there are neither administrative

concerns nor fairness concerns that should prevent the

appeal from going forward.” Fed. R. App. P. 3(c) advisory

committee’s note to 1993 amendments. Thus, “[w]hen a

party seeks to argue the merits of an order that does not

appear on the face of the notice of appeal, we consider:

(1) whether the intent to appeal a specific judgment can be

fairly inferred and (2) whether the appellee was prejudiced

by the mistake.” West, 853 F.3d at 523 (quoting Le v. Astrue,

558 F.3d 1019, 1022–23 (9th Cir. 2009)) (internal quotation

marks omitted). “In determining whether ‘intent’ and

‘prejudice’ are present, we apply a two-part test: first,

whether the affected party had notice of the issue on appeal;

and, second, whether the affected party had an opportunity

to fully brief the issue.” Id. at 523–24 (quoting Ahlmeyer v.

Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 (9th Cir.

2009)).

7

Under Rule 4, generally “the notice of appeal required by Rule 3

must be filed with the district clerk within 30 days after entry of the

judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). The time

is extended for all parties and runs from the entry of an order disposing

of any motion under Federal Rules of Civil Procedure 50(b), 52(b), 54,

59, or 60. Fed. R. App. P. 4(a)(4).

RICE V. MOREHOUSE 11

Here, we first conclude that Rice provided sufficient

notice to defendants of the intended scope of his appeal.

Rice’s Notice of Appeal states that he is appealing “from the

final judgment” without limitation, which thus fairly covers

portions of the judgment not specifically mentioned. See id.

at 523. 8 In addition, Rice’s take-down was a central issue in

the district court and in Rice’s opening brief here—factors

demonstrating Rice’s intent to appeal the summary-

judgment order. See One Indus., LLC v. Jim O’Neal Distrib.,

Inc., 578 F.3d 1154, 1159 (9th Cir. 2009). Thus, based on

the broad language of Rice’s Notice of Appeal, as well as the

centrality of the issue in the district court and on appeal, we

conclude that Rice’s intent to appeal the order granting

partial summary judgment was clear. 9

8

Although not at issue here, we note that the order granting partial

summary judgment in favor of Morehouse and Shaffer became final and

appealable once it merged with the final judgment entered after trial. See

Am. Ironworks & Erectors, Inc. v. N. Am. Const. Corp., 248 F.3d 892,

897 (9th Cir. 2001) (“A necessary corollary to the final judgment rule is

that a party may appeal interlocutory orders after entry of final judgment

because those orders merge into that final judgment.”).

9

Morehouse and Shaffer nonetheless argue that Rice’s “Appendix”

of the “Issues Raised on Appeal” should limit how we construe the

Notice. This argument fails for several reasons. Most importantly,

Rice’s list of issues was not an appendix to the Notice of Appeal itself,

but rather to his affidavit in support of his motion to proceed in forma

pauperis (“IFP”). Although the IFP application and appendix were filed

simultaneously with the Notice of Appeal, Morehouse and Shaffer do

not cite any authority (nor are we aware of any) suggesting that the list

of issues in an IFP application limits the issues or orders that may be

raised on appeal.

Moreover, even if we were to consider Rice’s list of issues along

with his Notice of Appeal, his failure to specifically cite the April 2015

summary-judgment order is not dispositive. See Peng v. Mei Chin

12 RICE V. MOREHOUSE

Second, we conclude that Morehouse and Shaffer did not

suffer prejudice: they both had an opportunity to, and

actually did, fully brief the issue. Although Morehouse and

Shaffer argue that they suffered prejudice because of the

delay—citing the eleven months between receiving the

Notice of Appeal and Rice’s opening brief—they do not say

how they were harmed. Moreover, given that Rice could not

have appealed the order granting partial summary judgment

until after judgment was issued following the jury trial three

years later, 10 it is hard to see how the relatively brief period

of additional time prejudiced them.

Penghu, 335 F.3d 970, 975 (9th Cir. 2003) (holding that dismissal of the

appeal was inappropriate where appellant failed to attach to his notice of

appeal the district court’s order granting defendant qualified immunity).

The cases Morehouse and Shaffer rely on involved notices of appeal with

a more explicit accounting of the orders challenged on appeal. See

Havensight Capital LLC v. Nike, Inc., 891 F.3d 1167, 1171 (9th Cir.

2018) (concluding that notice of appeal did not intend to appeal unnamed

orders where the notice named, cited, and attached other orders);

Valadez-Lopez v. Chertoff, 656 F.3d 851, 859 n.2 (9th Cir. 2011)

(concluding that notice of appeal did not intend to appeal grant of

summary judgment in favor of one deputy public defender defendant

where the notice specifically named the order granting summary

judgment in favor of a different deputy public defender defendant). The

notices of appeal in those cases were also filed by represented parties.

Even if a reviewing court can ordinarily draw a negative inference from

a party’s list of the orders he intends to challenge, we decline to apply

such an inference to Rice’s pro se list of issues in his IFP application.

10

Morehouse’s and Shaffer’s argument that Rice should have

appealed the grant of partial summary judgment sooner is without merit.

A district court’s grant of summary judgment based on qualified

immunity is not reviewable as a “collateral order.” See Branson v. City

of Los Angeles, 912 F.2d 334, 335 (9th Cir. 1990). Moreover, an order

granting partial summary judgment is not a final appealable order unless

it “has the effect of completely disposing of the action.” Charles A.

Wright, Arthur R. Miller & Mary K. Kane, 10A Fed. Prac. & Proc.

RICE V. MOREHOUSE 13

In sum, Morehouse and Shaffer “had notice of the issue

on appeal” and “an opportunity to fully brief the issue.”

West, 853 F.3d at 523–24. Their answering brief on appeal

responds fully to Rice’s challenge to the district court’s order

granting partial summary judgment and qualified immunity

to Morehouse and Shaffer. See id. Accordingly, Rice has

sufficiently presented the issue for appeal, see id. at 524,

which we turn to next.

III. STANDARD OF REVIEW

We review de novo a district court’s grant of summary

judgment. S.R. Nehad v. Browder, 929 F.3d 1125, 1132 (9th

Cir. 2019). Summary judgment is proper where the movant

shows, by citation to the record, that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law. Glenn v. Washington Cnty.,

673 F.3d 864, 870 (9th Cir. 2011); Fed. R. Civ. P. 56(a), (c).

In qualified-immunity cases, “we view the facts in the light

most favorable to the nonmoving party.” Tuuamalemalo v.

Greene, 946 F.3d 471, 476 (9th Cir. 2019) (per curiam)

(quoting Plumhoff v. Rickard, 572 U.S. 765, 768 (2014)).

We do not credit a party’s version of events that the record,

such as an unchallenged video recording of the incident,

“quite clearly contradicts.” Scott v. Cnty. of San Bernardino,

903 F.3d 943, 952 (9th Cir. 2018) (quoting Scott v. Harris,

550 U.S. 372, 378 (2007)). We also review de novo an

§ 2715 (4th ed.). Here, the district court’s order granted summary

judgment to Morehouse and Shaffer regarding their take-down of Rice

but denied summary judgment on the alleged use of excessive force

during the ensuing scrum. Thus, the summary-judgment ruling did not

completely dispose of the action as to Morehouse and Shaffer, and Rice

could not have appealed the order sooner.

14 RICE V. MOREHOUSE

officer’s entitlement to qualified immunity. S.R. Nehad,

929 F.3d at 1132.

IV. ANALYSIS

In reviewing whether Morehouse and Shaffer are entitled

to summary judgment on the basis of qualified immunity, we

ask two questions. Tuuamalemalo, 946 F.3d at 476–77; see

also C.V. ex rel. Villegas v. City of Anaheim, 823 F.3d 1252,

1255 (9th Cir. 2016). First, “[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?” Tuuamalemalo, 946 F.3d at 476 (quoting Scott,

550 U.S. at 377). Second, “[i]f the court finds a violation of

a constitutional right, the next, sequential step is to ask

whether the right was clearly established in light of the

specific context of the case.” Id. (internal quotation marks

and ellipses omitted) (quoting Scott, 550 U.S. at 377). The

district court answered no to both questions. For the reasons

that follow, we answer both questions in the affirmative.

A. EXCESSIVE FORCE

In evaluating a Fourth Amendment claim of excessive

force, we ask “whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances

confronting them.” Graham v. Connor, 490 U.S. 386, 397

(1989) (citations omitted). “In assessing the objective

reasonableness of a particular use of force, we consider:

(1) ‘the severity of the intrusion on the individual’s Fourth

Amendment rights by evaluating the type and amount of

force inflicted,’ (2) ‘the government’s interest in the use of

force,’ and (3) the balance between ‘the gravity of the

intrusion on the individual’ and ‘the government’s need for

that intrusion.’” Lowry v. City of San Diego, 858 F.3d 1248,

1256 (9th Cir. 2017) (en banc) (quoting Glenn, 673 F.3d

RICE V. MOREHOUSE 15

at 871). We must judge the reasonableness of a particular

use of force “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.

1. The Type and Amount of Force Used

Characterizing the amount of a non-lethal force can often

depend on specific factual circumstances. See, e.g., Lowry,

858 F.3d at 1256 (“Our precedent establishes that

characterizing the quantum of force with regard to the use of

a police dog depends on the specific factual

circumstances.”); Palmer v. Sanderson, 9 F.3d 1433, 1436

(9th Cir. 1993) (holding that officer who fastened handcuffs

so tightly around plaintiff’s wrist that it caused pain and left

bruises for weeks was not entitled to qualified immunity).

The same is true involving take-downs. See, e.g.,

Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir.

2007); Santos v. Gates, 287 F.3d 846, 855 (9th Cir. 2002).

Morehouse and Shaffer executed the take-down

maneuver while holding Rice in a “police lead” position; that

is, they tripped Rice so that he would fall to the ground as

they held his arms behind his back. Rice explained in his

declaration that he was tripped and “forcibly” thrown to the

ground, face-first onto the pavement. Due in part to the take-

down, Rice declared that he suffered “extreme pain”

immediately following his arrest and long-term physical

pain for which he received medical treatment. Thus,

assuming Rice’s version of the material facts viewed in the

light most favorable to him, see Tuuamalemalo, 946 F.3d

at 478, we agree with the district court that Morehouse and

Shaffer’s take-down involved a “substantial” and

“aggressive use” of force. Cf. Santos, 287 F.3d at 853

(describing a take-down maneuver as “quite severe”). Its

use, like any, “must be justified by the need for the specific

16 RICE V. MOREHOUSE

level of force employed.” Bryan v. MacPherson, 630 F.3d

805, 825 (9th Cir. 2010).

2. The State’s Interest

Under Graham, we evaluate the state’s interests at stake

by considering “(1) how severe the crime at issue was,

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

2011) (en banc). Among these considerations, the “most

important” is the second factor—whether the suspect posed

an immediate threat to others. Isayeva v. Sacramento

Sheriff’s Dep’t, 872 F.3d 938, 947 (9th Cir. 2017). These

factors are non-exhaustive, and we examine the totality of

the circumstances, Bryan, 630 F.3d at 826, including the

availability of less intrusive alternatives to the force

employed and whether proper warnings were given, Glenn,

673 F.3d at 872.

Before turning to these factors, we summarize the “facts

and circumstances confronting” Morehouse and Shaffer as

they arrived. Graham, 490 U.S. at 397. The district court

relied heavily on Murakami’s Code 3 as communicating a

“life-or-death alert” that Morehouse and Shaffer “had no

time” to independently evaluate. But the court overlooked

Murakami’s instructions to the arriving officers that

effectively downgraded her Code 3 call. 11 She explained to

them that “just one unit’s necessary.” To justify the need for

11

Indeed, as revealed at trial, Murakami attempted to amend the

Code 3 by later radioing a “Code 4” call, which meant “she was no longer

in danger.” Her “Code 4” update can be heard in the dash-cam video.

But because the arriving officers used a different radio frequency than

the Idaho State Police, they did not receive the “Code 4” radio update.

RICE V. MOREHOUSE 17

limited assistance, she explained “he’s just not wanting to

comply with my instructions.” Murakami then added, with

her back to Rice’s car, “He’s already been told he’s under

arrest,” and “All I wanted was his license, so I’m just going

to need somebody to help me get him out of the car.”

Another officer can be heard responding “okay” to each of

Murakami’s statements. And based on Morehouse’s and

Shaffer’s declarations, which paraphrase Murakami’s

comments to the arriving officers, a jury could find that the

officers heard those statements. In light of these facts, a jury

could reasonably find that Murakami’s comments

deescalated the nature of the situation and that reasonable

officers in the position of Morehouse and Shaffer would not

have viewed the situation as a Code 3 event. 12

In addition, officers have a duty to independently

evaluate a situation when they arrive, if they have an

opportunity to do so. See Deorle v. Rutherford, 272 F.3d

1272, 1277 (9th Cir. 2001) (explaining that officer, although

responding to a Code 3 call, had sufficient time to determine

whether there was an immediate need to use non-lethal

force). A reasonable jury could find that Morehouse and

Shaffer had such an opportunity. Morehouse and Shaffer

received the radio call for support and drove to the scene

minutes later. They were among seventeen officers who

responded to the call. Morehouse and Shaffer parked on the

opposite side of the road, crossed the median, and

approached Murakami’s car. From behind Rice’s car, they

could observe a woman and two teenagers inside the car.

After approaching the car, Murakami identified the

teenagers as Rice’s children. Morehouse, who stood

12

Indeed, as Shaffer suggested at trial, Murakami’s comments had

precisely that effect. As he explained, “after hearing [Murakami’s

comments], I kind of – I slowed down a little bit.”

18 RICE V. MOREHOUSE

immediately behind Murakami, could see Rice roll down his

window and could hear Rice ask to speak to Murakami’s

supervisor. The dash-cam footage shows Rice making this

request at least five times. Jt Ex. 1001 at 9:50–10:20. He

made those requests calmly, punctuating his requests with

“please” and “ma’am” and without raising his voice. Jt Ex.

1001 at 9:50–10:20. Once they walked Rice to the back of

his car, Morehouse and Shaffer were among six officers

surrounding Rice. Jt Ex. 1001 at 10:30. And by the time

Morehouse and Shaffer implemented the take-down, more

than a minute had passed since they had first met Murakami

at her car. During that brief period, although Rice refused to

cooperate, Morehouse and Shaffer did not observe Rice yell

or use profanity, attempt to flee or to harm the officers, or

reach for any sort of weapon. Thus, a reasonable jury could

find that an officer standing in their shoes would have known

that they were not facing an emergency situation.

Absent an emergency, the state’s interests here are

insubstantial. Rice’s purported traffic offense—failing to

signal for a full five seconds before changing lanes—was

minor. See Bryan, 630 F.3d at 828 (“Traffic violations

generally will not support the use of a significant level of

force.”). Nor was the offense that Murakami suspected him

of—driving under the influence—particularly severe. See

id. at 829. In any event, Morehouse and Shaffer only knew

what they were told, which included Murakami’s

explanations that Rice was “just not wanting to comply with

my instructions” and that “[a]ll I wanted was his license.”

Given the circumstances and Murakami’s explanations, a

reasonable jury could find that Morehouse and Shaffer could

not reasonably have believed that Rice had committed a

serious crime.

RICE V. MOREHOUSE 19

Similarly, a reasonable jury could find that Rice did not

present an immediate threat to the safety of the officers or

others, the most important factor under Graham. See

Isayeva, 872 F.3d at 947. Murakami even turned her back

to Rice’s car and briefly walked backward as she re-

approached the vehicle to arrest him, undermining any

suggestion that she believed Rice might have a firearm.

Moreover, despite more than a dozen officers arriving at the

scene, Murakami then explained she needed only one unit to

help remove Rice from his car. 13 That explanation dispelled

any notion that Rice was dangerous or that his family

warranted additional safety precautions. In addition,

Murakami explained that she needed that limited assistance

because Rice would not give her his license and was not

following instructions. That Murakami did not say or

suggest another reason for needing assistance strongly

undermines Morehouse’s and Shaffer’s assertion that they

reasonably believed Rice posed an immediate threat to them

or others.

Finally, although there is conflicting summary-judgment

evidence, a jury could find that Rice was not “actively

resisting arrest or attempting to evade arrest by flight.”

Mattos, 661 F.3d at 441. According to Rice’s version of the

events, he “was not resisting in any way” until after he was

taken down. Because the dash-cam video does not clearly

contradict Rice’s account, we must accept it. See Scott,

903 F.3d at 952. We have long distinguished between

passive and active resistance, see Forrester v. City of San

Diego, 25 F.3d 804, 805 (9th Cir. 1994), and Rice’s refusals

to exit his car are far closer to “the purely passive protestor

who simply refuses to stand” than to the “minor” or even

13

As Murakami later explained at trial, she meant only “one

person.”

20 RICE V. MOREHOUSE

“truly active” forms of resistance that we have considered in

other cases. See Bryan, 630 F.3d at 830 (construing the

plaintiff’s refusals to remain in his car, even given his

shouting and self-hitting, as relatively passive).

In sum, based on our review of the Graham factors, a

reasonable jury could find that the state had a minimal

interest in the use of substantial force against Rice.

We note an additional consideration supporting our

conclusion: the officers did not apparently consider “what

other tactics if any were available” to effect the arrest.

Bryan, 630 F.3d at 831 (quoting Headwaters Forest Def. v.

Cnty. of Humboldt, 240 F.3d 1185, 1204 (9th Cir. 2000)).

The officers apparently planned to arrest Rice while holding

him, standing up, in a “police lead” position. Shaffer

stepped in once he noticed that Murakami lost her grip of

Rice’s left arm. But Morehouse and Shaffer do not explain

why they, despite being able to hold Rice in a police lead

position, could not have arrested Rice in the way they first

planned. Morehouse and Shaffer assume (as we cannot at

this stage) that Rice was resisting Murakami’s attempts to

hold him. Cf. Tuuamalemalo, 946 F.3d at 478 (“At this stage

of the proceedings, we must assume that Tuuamalemalo was

not resisting when Officer Greene used a chokehold on

him.”). Although officers “need not avail themselves of the

least intrusive means of responding to an exigent situation,”

their failure to consider “clear, reasonable and less intrusive

alternatives” to the force employed “militates against finding

the use of force reasonable.” Glenn, 673 F.3d at 876

(internal quotation marks and alterations omitted).

3. Balancing the Competing Interests

In light of all the circumstances, a reasonable jury could

conclude that Morehouse’s and Shaffer’s use of substantial

RICE V. MOREHOUSE 21

force against Rice outweighed the officers’ need for its use.

See Lowry, 858 F.3d at 1256.

The balance here is similar to Bryan, where we

considered the use of a taser at a traffic stop for Carl Bryan’s

failure to wear his seatbelt. 630 F.3d 805. Bryan, upset after

a long drive and receiving a speeding ticket earlier that night,

hit his steering wheel and yelled expletives to himself. Id.

at 822. Bryan also stepped out of his car unprompted. Id.

He did not verbally threaten the officer, was standing at least

twenty feet away and did not attempt to flee. Id. The officer

instructed Bryan to get back in the car, which he did not do.

Id. Bryan later said he did not hear the officer’s instructions.

Id. Bryan also said he remained still, but the officer testified

that Bryan took “one step” toward him. Id. As a result, and

without warning, the officer shot Bryan with a taser gun, and

he fell face-first into the ground, fracturing his teeth and

suffering facial contusions. Id.

Applying Graham’s three-step balancing framework, we

held that the officer’s use of force against Bryan was

excessive because (1) the arresting officer used an

“intermediate or medium, though not insignificant, quantum

of force”; (2) although Bryan’s erratic behavior could lead

an officer to be wary, he did not pose an immediate threat to

the officer, his traffic violation did not support the use of a

significant level of force, his failure to return to his car

constituted at most passive resistance, and the officer failed

to warn Bryan about the taser or to seek a less intrusive

alternative; and (3) on balance, the state’s “minimal interest”

in the use of force against Bryan did not justify the use of

“intermediate level of force” against him. Id. at 824–32.

There are several clear parallels in this case to the

balance we struck in Bryan. First, Morehouse’s and

Shaffer’s use of the take-down maneuver involved

22 RICE V. MOREHOUSE

“substantial” force that resulted in forcibly throwing Rice

face-first to the pavement, similar to the non-lethal force in

Bryan. Second, similar to Bryan, Rice’s behavior did not

constitute an immediate threat to the officers; his traffic

violation did not support the use of a significant level of

force; Rice’s refusal to get out of his car did not constitute

active resistance; and officers failed to attempt a less

intrusive alternative. Finally, on balance, a reasonable jury

could find that the state’s minimal interest in the use of force

against Rice did not justify the “substantial force” used

against him.

In disagreeing, Morehouse and Shaffer rely on the

unrebutted testimony of use-of-force expert Scot Haug, who

opined that both officers acted “reasonably, appropriately,

and in conformance with their training” throughout the

incident. Haug’s analysis, however, depends on two factual

issues that are genuinely disputed. First, Haug broadly relies

on the Code 3 call, which Haug characterizes as “the most

exigent of assistance calls” and which “would have

reasonably put [Morehouse and Shaffer] on guard

concerning their safety.” But Haug, like the district court,

fails to recognize how Murakami’s comments to the arriving

officers effectively downgraded the Code 3 call. A

reasonable jury could find that Morehouse and Shaffer both

heard Murakami’s comments and knew that the

circumstances no longer presented an urgency.

Second, Haug’s opinion relies on his conclusion that

Rice was physically resisting his arrest. But as noted above,

that issue is genuinely disputed and not directly resolved by

the dash-cam video. Thus, Haug’s ultimate conclusions

regarding the propriety of the take-down depends on two

critical factual issues that cannot be resolved at summary

judgment. “Where such disputes exist, summary judgment

RICE V. MOREHOUSE 23

is appropriate only if [Morehouse and Shaffer] are entitled

to qualified immunity on the facts as alleged by [Rice].” See

Blankenhorn, 485 F.3d at 477.

In sum, although there are material facts in dispute, when

the facts are taken in the light most favorable to Rice, a jury

could conclude that Morehouse and Shaffer used excessive

force in violation of the Fourth Amendment. Thus, we turn

to the second prong of the qualified-immunity analysis.

B. CLEARLY ESTABLISHED LAW

The district court held that even if Morehouse and

Shaffer used excessive force, they were entitled to qualified

immunity. Accordingly, we consider whether Rice’s right

to be free from Morehouse’s and Shaffer’s substantial force

in implementing the take-down “was clearly established . . .

in light of the specific context of the case.” Tuuamalemalo,

946 F.3d at 477 (quoting Scott, 550 U.S. at 377).

To be clearly established, “[t]he contours of the right

must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). The

Supreme Court has repeatedly cautioned us “not to define

clearly established law at a high level of generality.” City of

Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503 (2019)

(quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)).

“To determine whether [an officer] violated clearly

established law, we look to cases relevant to the situation

[the officer] confronted, mindful that there need not be a case

directly on point.” A.K.H. rel. Landeros v. City of Tustin,

837 F.3d 1005, 1013 (9th Cir. 2016) (citations and internal

quotation marks omitted). “[E]xisting precedent must place

the lawfulness of the particular [action] beyond debate,” for

which “a body of relevant case law is usually necessary.”

24 RICE V. MOREHOUSE

Emmons, 139 S. Ct. at 504 (quoting D.C. v. Wesby, 138 S.

Ct. 577, 581 (2018)).

Long before Rice’s arrest, we clearly established one’s

“right to be free from the application of non-trivial force for

engaging in mere passive resistance.” Gravelet-Blondin v.

Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013); see also

Nelson v. City of Davis, 685 F.3d 867, 881 (9th Cir. 2012)

(explaining that cases dating back to 2001 established that “a

failure to fully or immediately comply with an officer’s

orders neither rises to the level of active resistance nor

justifies the application of a non-trivial amount of force”).

In Gravelet-Blondin, we held that an officer’s tasing of a

bystander to an arrest who did not retreat despite the officer’s

orders violated clearly established law. 728 F.3d at 1092–

96. Because the plaintiff did not make any threats or resist

the officer, under our case law, “the use of non-trivial force

of any kind was unreasonable.” Id. at 1094 (emphasis

added).

In Gravelet-Blondin, we discussed two cases that clearly

established the right to be free from any kind of non-trivial

force where the plaintiff either did not resist or only

passively resisted the officer. We cited Deorle, in which we

denied qualified immunity to an officer who shot a beanbag

projectile at a suicidal and irrational individual who followed

the officer’s instructions to put down his crossbow but who

then walked towards the officer at a steady gait. 272 F.3d at

1277, 1281. We also cited Headwaters Forest Defense,

where we considered the use of pepper spray to subdue,

remove, or arrest nonviolent protesters and held that “[t]he

law regarding a police officer’s use of force against a passive

individual was sufficiently clear” in 1997 to put officers on

notice that such force was excessive. 276 F.3d at 1131. Both

cases bear on Morehouse’s and Shaffer’s conduct towards

RICE V. MOREHOUSE 25

Rice, who, taking his version of the incident as true, was at

most passively resistant.

Similarly, in Nelson, we cited several cases that held that

non-trivial force was not justified in the face of passive or

even minimal resistance. 685 F.3d at 881–82. In Young v.

County of Los Angeles, for example, we denied qualified

immunity to an officer who physically struck and used

pepper spray against an arrestee who refused to reenter his

vehicle, 655 F.3d 1156, 1158 (9th Cir. 2011), holding that

“[t]he principle that it is unreasonable to use significant force

against a suspect who was suspected of a minor crime, posed

no apparent threat to officer safety, and could be found not

to have resisted arrest” was well established long before

2007. Id. at 1168. Similarly, as discussed, in Bryan, we held

that it was excessive for an officer to use a taser against a

person who, although shouting gibberish, hitting himself,

and disobeying the officer’s instructions to reenter his car,

was otherwise non-resistant. 630 F.3d 805.

Cases like Deorle, Headwaters, Young, and Bryan—as

summarized in Gravelet-Blondin and Nelson—sufficiently

established the law before Rice’s arrest in 2011. These cases

form a “body of relevant case law” that together place

Morehouse’s and Shaffer’s use of substantial force against a

passively resisting person “beyond debate.” Emmons,

139 S. Ct. at 504. Accordingly, qualified immunity must be

denied.

Morehouse’s and Shaffer’s reliance on the Supreme

Court’s recent decision in Emmons is misplaced.

In Emmons, the Supreme Court vacated our decision

denying summary judgment and qualified immunity to an

officer who, responding to a domestic abuse call, tackled

Marty Emmons as he exited an apartment. Id. at 502. In

26 RICE V. MOREHOUSE

denying the officer qualified immunity, we said that the

“right to be free of excessive force was clearly established”

at the time of Emmons’s arrest in 2013. Emmons v. City of

Escondido, 716 F. App’x 724, 725 (9th Cir. 2018) (citing

Gravelet-Blondin, 728 F.3d at 1093). The Supreme Court

rejected that formulation as “far too general.” 139 S. Ct. at

503. The Court acknowledged the right described in

Gravelet-Blondin to be “free from the application of non-

trivial force for engaging in mere passive resistance,” but

rejected that case law as inapposite because it involved uses

of force “against individuals engaged in passive resistance.”

Id. (emphasis in original). Accordingly, the Court remanded

for us to consider whether the officer was entitled to

qualified immunity. Id. at 504.

On remand, we continued to cite favorably our holding

in Gravelet-Blondin. See Emmons v. City of Escondido,

921 F.3d 1172, 1175 (9th Cir. 2019). But to reconcile the

Supreme Court’s decision with Gravelet-Blondin—a case

with which the Court did not take issue—we concluded that

the Court “must have concluded implicitly that [Emmons]’s

actions involved more than passive resistance.” Id. In

particular, we noted the Supreme Court’s emphasis that

Emmons was a potential suspect (for domestic abuse) and

was attempting to flee. Id. at 1174–75 (citing Emmons,

139 S. Ct. at 504). That distinction was critical and led us to

hold that Gravelet-Blondin (and the line of cases leading up

to it) was not sufficiently on point regarding Emmons’s take-

down. Id. at 1175. We were otherwise unable to find a case

sufficiently on point, and we held that the officer was thus

entitled to qualified immunity. Id.

In contrast, here, taking Rice’s version of the events as

true, Rice was engaged in mere passive resistance. To be

sure, Rice repeatedly declined to provide his license and

RICE V. MOREHOUSE 27

other documents to Murakami and to exit his car. But Rice

gave Murakami his name, rolled down the window, and

attempted to gather his license before he was pulled out of

his car. Rice also unlocked the car and did not physically

resist arrest before he was taken to the ground. Although

Rice was upset and insistent in wanting to speak with

Murakami’s supervisor, Rice did not swear or threaten any

of the officers. Thus, like the plaintiff in Gravelet-

Blondin—and unlike the plaintiff in Emmons—Rice was

“perfectly passive, engaged in no resistance, and did nothing

that could be deemed particularly bellicose.” Gravelet-

Blondin, 728 F.3d at 1092 (internal quotation marks

omitted). Accordingly, the line of cases discussed in

Gravelet-Blondin clearly established the law long before

Morehouse’s and Shaffer’s take-down of Rice.

V. CONCLUSION

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

to Rice, we conclude that a reasonable jury could find that

Rice engaged in passive resistance and that Morehouse’s and

Shaffer’s take-down of Rice involved unconstitutionally

excessive force. Furthermore, because the right to be free

from “the application of non-trivial force for engaging in

mere passive resistance” was clearly established before

December 2011, Morehouse and Shaffer are not immune

from suit. Accordingly, we REVERSE the district court’s

grant of summary judgment to Morehouse and Shaffer on the

basis of qualified immunity and REMAND for further

proceedings consistent with this opinion.

REVERSED and REMANDED.