Timothy Nelson v. City of Davis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMOTHY C. NELSON, 

Plaintiff-Appellee,

v.

CITY OF DAVIS; CALVIN HANDY;

MICHAEL MASON, Sergeant; JAVIER

BARRAGAN, Officer; BRANDON

JONES, Officer; CALVIN CHANG, No. 10-16256

Officer; M. GARCIA, Officer,

individually; DOES, 1-100,  D.C. No.

2:05-cv-01193-

Defendants,

MCE-KJM

and

JAMES HYDE, individually and in

his official capacity as Chief of

Police for the City of Davis; JOHN

WILSON, Sergeant, individually and

in his official capacity as a

Sergeant for the City of Davis,

Defendants-Appellants.



7959

7960 NELSON v. CITY OF DAVIS

TIMOTHY C. NELSON, 

Plaintiff-Appellee,

v.

CITY OF DAVIS; JAMES HYDE,

individually and in his official

capacity as Chief of Police for the

City of Davis; JOHN WILSON,

Sergeant, individually and in his No. 10-16257

official capacity as a Sergeant for

the City of Davis; CALVIN HANDY;  D.C. No.

2:05-cv-01193-

MICHAEL MASON, Sergeant; JAVIER MCE-KJM

BARRAGAN, Officer; BRANDON

JONES, Officer; M. GARCIA,

Officer, individually; DOES, 1-00,

Defendants,

and

CALVIN CHANG, Officer,

Defendant-Appellant.



NELSON v. CITY OF DAVIS 7961

TIMOTHY C. NELSON, 

Plaintiff-Appellee,

v.

CITY OF DAVIS; JAMES HYDE,

individually and in his official

capacity as Chief of Police for the

City of Davis; JOHN WILSON,

Sergeant, individually and in his No. 10-16258

official capacity as a Sergeant for D.C. No.

the City of Davis; MICHAEL  2:05-cv-01193-

MASON, Sergeant; BRANDON JONES, MCE-KJM

Officer; CALVIN CHANG, Officer; OPINION

DOES, 1-100,

Defendants,

and

JAVIER BARRAGAN, Officer; CALVIN

HANDY; M. GARCIA, Officer,

individually,

Defendants-Appellants.



Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, District Judge, Presiding

Argued and Submitted

October 13, 2011—San Francisco, California

Filed July 11, 2012

Before: Betty B. Fletcher, Stephen Reinhardt, and

A. Wallace Tashima, Circuit Judges.

Opinion by Judge Reinhardt

NELSON v. CITY OF DAVIS 7965

COUNSEL

John A. Whitesides (argued), Sacramento, California, for

defendants-appellants James Hyde and John Wilson.

Don Willenburg (argued), Michael T. Lucey, Mark S. Posard,

San Francisco, California, for defendants-appellants Javier

Barragan, Mary Garcia, and Calvin Handy.

Kelli M. Kennaday, Kim Johnston, Sacramento, California,

for defendant-appellant Calvin Chang.

Adante D. Pointer (argued), John L. Burris, Oakland, Califor-

nia, for the plaintiff-appellee.

OPINION

REINHARDT, Circuit Judge:

Timothy Nelson, a former student of the University of Cali-

fornia at Davis (“U.C. Davis”), suffered permanent injury

when he was shot in the eye by a pepperball projectile fired

from the weapon of a U.C. Davis officer when U.C. Davis

and City of Davis police attempted to clear an apartment com-

plex of partying students. Officers shot pepperball projectiles

in the direction of Nelson and his friends as the students stood

7966 NELSON v. CITY OF DAVIS

in the breezeway of the apartment complex, attempting to

leave the party and awaiting instruction from the officers. The

officers did not provide any audible warning prior to shooting

towards the unarmed and compliant students, and never

informed the young partygoers how to appropriately extricate

themselves from the apartment complex in order to avoid

becoming the target of police force. Formal complaints

regarding the officers’ use of force were filed with both

departments on Nelson’s behalf. After the complaints failed to

result in a satisfactory investigation into police conduct Nel-

son filed suit in district court alleging, among other things,

that his Fourth Amendment rights had been violated.1

The defendants moved for summary judgment. After the

district court’s denial of their motion, U.C. Davis officers

Barragan, Chang and Garcia, as well as Chief Handy from

U.C. Davis and Sgt. Wilson and Chief Hyde from the City of

Davis, appealed the portion of the district court’s order deny-

ing them qualified immunity for their conduct on the night of

the shooting. This appeal requires us to determine whether the

defendants violated Nelson’s constitutional right to be free of

unreasonable seizure and whether the contours of that right

were sufficiently established that a reasonable officer would

have been aware that the conduct was unconstitutional. We

conclude that the defendants’ actions amounted to an uncon-

stitutional seizure of Nelson. Moreover, we hold that the law

at the time of the incident should have placed the defendants

on notice that the shooting of the pepperballs under the cir-

cumstances was an act of excessive force, thus precluding a

judgment of qualified immunity.

1

Because we are reviewing a denial of summary judgment, to the extent

the parties disagree as to relevant facts “we view the evidence in the light

most favorable to [Nelson,] the nonmoving party, and accept the version

of all disputed facts most favorable to him.” Drummond ex rel. Drummond

v. City of Anaheim, 343 F.3d 1052, 1054 n. 1 (9th Cir. 2003).

NELSON v. CITY OF DAVIS 7967

BACKGROUND

On April 16, 2004, approximately 1,000 people congre-

gated at the Sterling Apartment complex in Davis, California

for what was described by one participant as “the biggest

party in history,” for the annual Picnic Day festivities at U.C.

Davis. U.C. Davis student Timothy Nelson was among the

attendees. Due to the size of the party, traffic on Cantrill

Drive, the street on which the apartment complex was located,

became gridlocked and partygoers began to park illegally.

The City of Davis police station is also located on Cantrill

Drive a short distance from the apartment complex. When

officers noticed the traffic violations and congestion on Can-

trill Drive, Sgt. John Wilson instructed them to issue parking

tickets to vehicles illegally parked. Officers eventually moved

into the party to begin citing individual students for underage

drinking. Once officers decided that they wanted a basis upon

which to disperse the crowd, Wilson contacted the owner of

the apartment complex and reported his observations, which,

in addition to the large number of attendees and the underage

drinking, included seeing individuals rocking a car and hear-

ing bottles breaking. In response to this report, the owner

requested that Wilson order non-residents to leave the com-

plex.

Wilson and the other officers present began individually

informing those around the fringes of the crowd that they

were trespassing and that it was necessary for them to leave.

Finding this method ineffective to disperse the nearly 1,000

partygoers, Wilson directed some of his officers to return to

the station and to come back to the party in a police vehicle,

which he hoped would have the effect of motivating party-

goers to depart of their own volition. This strategy proved

unsuccessful, as the police vehicle was soon overwhelmed by

the crowd, including some individuals who threw bottles at

the vehicle. Officers cleared a path for the police car by foot

so that they could leave the complex and return to the station

to regroup. After requesting and receiving backup from vari-

7968 NELSON v. CITY OF DAVIS

ous law enforcement agencies including the U.C. Davis Police

Department, 30 to 40 officers assembled in riot gear at the

southwest corner of the apartment complex and prepared to

disperse the crowd. Defendants, U.C. Davis Officers Barra-

gan, Chang and Garcia, were among these officers and were

armed with pepperball guns. Pepperball guns are, in essence,

paintball guns that fire rounds containing oleoresin capsicum

(“OC”) powder, also known as pepper spray. These rounds

are fired at a velocity of 350 to 380 feet per second, Nelson

v. City of Davis, 571 F.3d 924, 926 n.1 (9th Cir. 2009), with

the capacity to fire seven rounds per second. They break open

on impact and release OC powder into the air, which has an

effect similar to mace or pepper spray. Pepperballs therefore

combine the kinetic impact of a projectile with the sensory

discomfort of pepper spray.

Defendants contend that, upon entering the complex, offi-

cers issued a verbal order to disperse, but acknowledge that

they lacked any means of amplifying their voices above the

raucous noise of the party, and, in fact, had to raise the visors

on their helmets to communicate with each other at close

range. The officers formed a skirmish line and moved

through the crowd giving dispersal orders, but the majority of

the crowd neither heard the order nor dispersed. The officers

formed a second skirmish line, and prepared again to disperse

the crowd. This time, the officers armed with pepperball guns

assembled under Wilson’s command in front of the others.

Their purpose was to use their weapons in order to “disperse”

the remaining students and make way for the advancing “skir-

mish line.”

The officers gathered in front of a breezeway in the apart-

ment complex that was described as a “very narrow and con-

fined space.” A group of fifteen to twenty persons had

congregated in this breezeway on the ground floor, including

Nelson and his friends. The students were attempting to leave

the party but the police blocked their means of egress and did

not provide any instructions for departing from the complex.

NELSON v. CITY OF DAVIS 7969

The students testified in their depositions that they stood in

the breezeway awaiting instructions from the police. At vari-

ous times they called out to the police, asking the officers to

inform them what they wanted the students to do, and repeat-

edly raised their hands to show their willingness to comply.

The students were disturbed by the presence of the police in

full riot gear, and some of Nelson’s female companions began

to cry. Although there were scattered bottles being thrown

throughout the complex and the upper levels of the breeze-

way, officers testified that no one from Nelson’s group threw

bottles at the police. Defendants claim that they warned the

congregants to disperse, but the students did not hear any

commands until after shots had already been fired. When the

partygoers failed to disperse, Wilson ordered his team to “dis-

perse them,” at which point Barragan, Chang and Garcia shot

pepperballs towards Nelson’s group from a distance estimated

by various parties to have been 45 to 150 feet away.

A pepperball launched from one of the officers’ guns struck

Nelson in the eye. He immediately collapsed on the ground

and fell into the bushes where he writhed in pain for ten to fif-

teen minutes. Although unable to see, Nelson heard the offi-

cers proceed past where he lay, but none of them provided

assistance. Some time later, Nelson was removed from the

scene and driven to the hospital. Later that evening, Lieuten-

ant Pytel, the incident commander at the scene learned that an

individual was injured during the dispersal of persons at the

apartment complex and sent Wilson to the hospital to ascer-

tain whether that individual was injured by the officers’ use

of force and whether that individual had committed a charge-

able offense. The officers were unable to find any crime with

which to charge Nelson — thus no charge was ever filed

against him. As a result of his injury, Nelson suffered tempo-

rary blindness, and “a permanent loss of visual acuity,” and

endured “multiple surgeries to repair the ocular injury he sus-

tained.” Additionally, as a result of his injury Nelson was

forced to withdraw from U.C. Davis due to the loss of his ath-

letic scholarship.

7970 NELSON v. CITY OF DAVIS

After the shooting, Nelson, his father, and a number of his

companions who were present at the incident, filed incident

reports with the Davis and U.C. Davis police forces. Despite

their efforts, James Hyde, Chief of the Davis Police Depart-

ment, approved of the decision not to accept the complaint for

the Davis Police and did not conduct an investigation into the

use of force. Calvin Handy, Chief of the U.C. Davis Police

Department, authorized an internal investigation into the use

of force, but relied solely on the written reports provided by

the officers, which did not disclose that anyone had been seri-

ously injured. On the basis of these reports he concluded that

all policies had been followed. After the complaints filed on

Nelson’s behalf failed to result in a serious investigation into

the use of force at the apartment complex, Nelson filed suit

in district court under 42 U.S.C. § 1983 alleging, among other

things, a violation of his Fourth Amendment right to be free

from unreasonable seizure. In addition to officers Barragan,

Chang and Garcia, the officers involved directly in the shoot-

ing, Nelson sued Hyde and Handy for their actions in ratify-

ing the unconstitutional conduct of the officers. Neither the

students nor the officers identified which of the officers shot

the projectile which hit Nelson. Defendants Chief Hyde, Chief

Handy, Sgt. Wilson, and Officers Barragan, Garcia, and

Chang moved for summary judgment on the basis of qualified

immunity. The district court granted summary judgment to

the defendants on some of Nelson’s claims, but held that,

under Nelson’s version of the events, a constitutional viola-

tion, an unreasonable seizure under the Fourth Amendment,

had occurred and the defendants were not entitled to qualified

immunity. The defendants filed an interlocutory appeal chal-

lenging the district court’s denial of qualified immunity.2 The

2

The Appellees also challenge the district court’s denial of summary

judgment on the remaining state law claims. We do not have jurisdiction

over those appeals. In addition, “California denies immunity to police offi-

cers who use excessive force.” See Robinson v. Solano Cnty., 278 F.3d

1007, 1016 (9th Cir. 2002) (citing Mary M. v. City of Los Angeles, 54 Cal.

3d 202, 215 (1991)); see also Venegas v. Cnty. of Los Angeles, 153 Cal.

NELSON v. CITY OF DAVIS 7971

defendants challenge only the court’s conclusions that the

officers’ conduct violated Nelson’s constitutional right and

that, at the time of the incident, it was clearly established that

it did so.3 Liberal v. Estrada, 632 F.3d 1064, 1074, 1076 (9th

Cir. 2011).

DISCUSSION

Qualified immunity shields an official from damages in a

civil suit unless the plaintiff can make the showing that the

official’s actions violated a constitutional right, and that the

right was “clearly established” at the time of the violative

conduct. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To

survive the defendant’s invocation of qualified immunity, the

plaintiff must succeed on both prongs. We hold that Nelson

has succeeded in alleging facts that, if true, would support the

finding that the officers’ conduct constituted a violation of

clearly established law. The district court therefore did not err

when it denied the officers qualified immunity for their use of

force against Nelson.

App. 4th 1230, 1246 (2007) (holding that “qualified immunity of the kind

applied to actions brought under [§ 1983] does not apply to actions

brought under [Cal. Civ. Code] section 52.1”). Thus, even if this court

were to conclude that the officers were entitled to qualified immunity, the

state claims would be unaffected by this appeal.

3

Officers Barragan, Chang and Garcia contend that the shooting was

constitutionally permissible. Sgt.Wilson similarly asserts the constitution-

ality of the shooting and argues that his conduct, ordering the officers to

shoot, by extension, could not have violated Nelson’s constitutional right.

Chief Handy and Chief Hyde are liable for their acts of ratifying the con-

duct of the officers only if the officers’ conduct is found to be unconstitu-

tional. The liability of all parties to this appeal is therefore dependent on

holding that the shooting of Nelson constituted a violation of the constitu-

tion.

7972 NELSON v. CITY OF DAVIS

I.

The officers first contend that Nelson was not seized under

the Fourth Amendment. We reject this argument.

[1] “A person is seized by the police and thus entitled to

challenge the government’s action under the Fourth Amend-

ment when the officer by means of physical force or show of

authority terminates or restrains his freedom of movement

through means intentionally applied.” Brendlin v. California,

551 U.S. 249, 254 (2007) (internal quotation marks and cita-

tions omitted) (emphasis omitted). In this case, the U.C. Davis

police officers took aim and intentionally fired in the direction

of a group of which Nelson was a member. Nelson was hit in

the eye by a projectile filled with pepper spray and, after

being struck, was rendered immobile until he was removed by

an unknown individual. Nelson was both an object of inten-

tional governmental force and his freedom of movement was

limited as a result. Under these facts, Nelson was unquestion-

ably seized under the Fourth Amendment.4

4

Even in the absence of Nelson’s submission, the government’s inten-

tional application of force to Nelson was sufficient to constitute a seizure.

As the Supreme Court has made clear, the mere assertion of police author-

ity, without the application of force, does not constitute a seizure unless

an individual submits to that authority. California v. Hodari D., 499 U.S.

621, 626-27 (1991); see also United States v. Smith, 633 F.3d 889, 893

(9th Cir. 2011) (submission is required to constitute a seizure in the

absence of physical force). Conversely, when that show of authority

includes the application of physical force, a seizure has occurred even if

the object of that force does not submit. Hodari D., 499 U.S. at 624-26 (an

arrest, the “quintessential seizure of the person under our Fourth Amend-

ment jurisprudence,” occurs with “the mere grasping or application of

physical force with lawful authority, whether or not it succeeded in subdu-

ing the arrestee”); see also Stevens v. Rose, 298 F.3d 880, 884 (9th Cir.

2002) (“[A]n arrest is effected by the slightest application of physical

force.” (quoting Hodari D. at 625)); Alexander v. City & Cnty. of S.F., 29

F.3d 1355, 1365 n.10 (9th Cir. 1994) (citing Hodari for proposition that

“physical force constitutes a seizure under the Fourth Amendment”). As

the Court has held, “an arrest requires either physical force . . . or, where

that is absent, submission to the assertion of authority.” Hodari D., 499

U.S. at 626 (emphasis in original). In this instance, Nelson was an object

of the officers’ physical force and he submitted to that force. He was

therefore seized under both the former and the latter definition of the term.

NELSON v. CITY OF DAVIS 7973

The officers argue that Nelson was not individually tar-

geted by officers, and therefore his shooting was unintentional

and incapable of causing a Fourth Amendment violation. This

argument misapprehends the distinction between intentional

and unintentional conduct that the Supreme Court has repeat-

edly held as determinative of the Fourth Amendment analysis.

To constitute a seizure, the governmental conduct must be

purposeful, and cannot be an unintentional act which merely

has the effect of restraining the liberty of the plaintiff. Com-

pare Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843-44

(1998) (no seizure occurred when police car unintentionally

ran over a passenger who fell from a fleeing motorcycle dur-

ing chase) and United States v. Al Nasser, 555 F.3d 722 (9th

Cir. 2009) (no seizure occurred when police signaled to driver

to continue driving and he misinterpreted signal and stopped),

with Brower v. Cnty. of Inyo, 489 U.S. 593 (1989) (seizure

occurred when fleeing driver hit road block intentionally

erected by the police), and Brendlin, 551 U.S. 249 (seizure of

passenger occurs when car stopped by police for the purpose

of detaining the driver).

[2] The intentionality requirement is satisfied when the

“termination of freedom of movement [occurs] through

means intentionally applied.” Brower, 489 U.S. at 597

(emphasis in original). In the Court’s opinion in Brower, such

willful conduct is contrasted with the unknowing and uninten-

tional act of accidentally pinning a fleeing felon to a wall with

a police car when the brakes of an unoccupied police vehicle

failed. For an act to be unintentional, the governmental con-

duct must lack the element of volition; an absence of concern

regarding the ultimate recipient of the government’s use of

force does not negate volition. As Brendlin stated, “ ‘an unin-

tended person . . . [may be] the object of the detention,’ so

long as the detention is ‘willful’ and not merely the conse-

quence of ‘an unknowing act.’ ” Id. at 254 (quoting Brower,

489 U.S. at 596) (alterations in original). Regardless of

whether Nelson was the specific object of governmental

force, he and his fellow students were the undifferentiated

7974 NELSON v. CITY OF DAVIS

objects of shots intentionally fired by the officers in the direc-

tion of that group. Although the officers may have intended

that the projectiles explode over the students’ heads or against

a wall, the officers’ conduct resulted in Nelson being hit by

a projectile that they intentionally fired towards a group of

which he was a member. Their conduct was intentional, it was

aimed towards Nelson and his group, and it resulted in the

application of physical force to Nelson’s person as well as the

termination of his movement. Nelson was therefore intention-

ally seized under the Fourth Amendment.

The defendants contend that the intent of the officers was

to hit the area around the students in order to douse them with

pepper spray from the exploding pepperball projectiles in a

tactic called “area contamination.” Testimony from at least

one officer, however, reveals that they were instructed by

Wilson to “shoot at the crowd,” and that at least one officer

attempted to hit individual students within Nelson’s group.

Nonetheless, even were we to accept as true their contention

on appeal that they intended to conduct area contamination,

it is of no significance whether the expectation was to hit the

group with the contents of the projectile or with the projectile

itself. Whether the officers intended to subject the students to

a shower of pepper spray via area contamination or intended

to hit them with the pepperball projectiles themselves, the

officers intentionally directed their use of force at the stu-

dents. As the Supreme Court has recognized, a seizure occurs

when an individual is “stopped by the accidental discharge of

a gun with which he was meant only to be bludgeoned, or by

a bullet in the heart that was meant only for the leg.” Brower,

489 U.S. at 599. Thus, the precise manner in which the offi-

cers’ intentional use of force was ultimately experienced by

Nelson does not affect the determination that a seizure has

occurred. Although Nelson may have been struck in the eye

with a pepperball that was intended to impact his body else-

where, or was physically hit by the projectile when the offi-

cers sought only to spray him with its contents, the legal

NELSON v. CITY OF DAVIS 7975

consequence of the officers’ actions is that a seizure of Nelson

occurred.

[3] The officers also argue that their actions could not con-

stitute a seizure because their intent was to disperse the

crowd. The Supreme Court has repeatedly held that the Fourth

Amendment analysis is not a subjective one. See, e.g., Ash-

croft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011); Brendlin, 551

U.S. at 261; Whren v. United States, 517 U.S. 806, 813

(1996). “The intent that counts under the Fourth Amendment

is the intent [that] has been conveyed to the person con-

fronted, and the criterion of willful restriction on freedom of

movement is no invitation to look to subjective intent when

determining who is seized.” Brendlin, 551 U.S. at 260-61

(alterations in original) (internal quotation marks and citation

omitted). Recently, the Court again emphasized that “the

Fourth Amendment regulates conduct rather than thoughts.”

al-Kidd, 131 S.Ct. at 2080. Whether the officers intended to

encourage the partygoers to disperse is of no importance

when determining whether a seizure occurred. The officers

took aim and fired their weapons towards Nelson and his

associates. Regardless of their motives, their application of

force was a knowing and wilful act that terminated Nelson’s

freedom of movement. It unquestionably constituted a seizure

under the Fourth Amendment.

II.

[4] A seizure results in a constitutional violation only if it

is unreasonable. Graham v. Connor, 490 U.S. 386 (1989).

Defendants contend that any seizure here did not meet that

standard. The determination of unreasonableness requires us

to decide “whether the totality of the circumstances justified

a particular sort of . . . seizure,” Tennessee v. Garner, 471

U.S. 1, 8-9 (1985). To resolve this question we must balance

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

Fourth Amendment interests against the countervailing gov-

ernmental interests at stake.” Graham, 490 U.S. at 396 (inter-

7976 NELSON v. CITY OF DAVIS

nal citations and quotation marks omitted). When the

governmental interests at stake are substantial, a greater intru-

sion upon the Fourth Amendment rights of the person may be

justified. Conversely, when the governmental interest is

insubstantial, the application of even minimal force may be

unreasonable. When balancing the degree of force used

against the governmental interests, “it is the need for force

which is at the heart of the [analysis].” Headwaters Forest

Def. v. Cnty. of Humboldt (“Headwaters II”), 276 F.3d 1125,

1130 (9th Cir. 2002) (quoting Liston v. Cnty. of Riverside, 120

F.3d 965, 976 (9th Cir. 1997)) (emphasis in original).

A.

The police arsenal includes many different types of force,

which intrude upon the Fourth Amendment rights of the indi-

vidual to varying degrees. We have recognized that “physical

blows or cuts” often constitute a more substantial application

of force than categories of force that do not involve a physical

impact to the body. Forrester v. City of San Diego, 25 F.3d

804, 807 (9th Cir. 1994) (holding that the use of a progressive

pain compliance device that inflicted temporary discomfort on

the arrestees was not a substantial intrusion). The absence of

concussive force is not determinative, however, and “[w]e

have held that force can be unreasonable even without physi-

cal blows or injuries.” Bryan v. MacPherson, 630 F.3d 805,

824 (9th Cir. 2010); see also Motley v. Parks, 432 F.3d 1072

(9th Cir. 2005) (en banc) (pointing a weapon at unarmed child

was unreasonable); Robinson v. Solano County, 278 F.3d

1007 (9th Cir. 2002) (en banc) (pointing a weapon at unarmed

and nonthreatening individual was unreasonable). More spe-

cifically to the case before us, we have previously rejected the

contention that the use of pepper spray is a “minimal” intru-

sion, due to the immediacy and “uncontrollable nature” of the

pain involved. Headwaters Forest Def. v. Cnty. of Humboldt

(“Headwaters I”), 240 F.3d 1185, 1199 (9th Cir. 2000),

vacated and remanded on other grounds, 534 U.S. 801

(2001); see also Logan v. City of Pullman, 392 F. Supp. 2d

NELSON v. CITY OF DAVIS 7977

1246, 1261 (E.D.Wash. 2005) (noting that pepper spray “is a

‘dangerous weapon’ under the criminal sentencing guidelines

because it is ‘capable of inflicting death or serious bodily

injury.’ ” (quoting United States v. Neill, 166 F.3d 943, 949

(9th Cir. 1999) (cert. denied))).

[5] Nelson was struck in the eye by a pepperball projectile,

an object that “combine[s] the shock of kinetic impact (simi-

lar to paintballs) with the sensory discomfort associated with

pepper spray.” Nelson v. City of Davis, 709 F. Supp. 2d 978,

982 (E.D. Cal. 2010). The intrusion on Nelson’s person

encompassed both the physical blow from the force of the

projectile and the chemical effects of pepper spray. As a result

of this injury, Nelson suffered significant damage to his eye,

causing temporary blindness and a permanent loss of visual

acuity. He also was forced to endure multiple surgeries to par-

tially repair the damage caused by the pepperball projectile.

The possibility of serious injury was apparent to the officers

at the time of the shooting. According to the deposition testi-

mony of current and former officers, the Commission on

Peace Officer Standards and Training (“POST”) guidelines

specified that officers using the pepperball guns should avoid

the head, face and groin due to the risk of causing serious

injury. They testified that officers were advised not to shoot

pepperballs indiscriminately or at individuals that were not

posing a threat, nor were they permitted to shoot at any dis-

tance if there was a possibility that the target could be hit in

the head or if other damage was possible. In addition to the

general prohibition against using the weapon at any distance

that was likely to cause injury, officers were warned that pep-

perball projectiles could not be accurately targeted beyond 30

feet. Although officers were trained that they could target

walls or other surfaces at a distance up to 100 feet for the pur-

pose of area saturation — allowing the pepperballs to break

on a hard surface to render the surrounding area uninhabitable

— they were specifically instructed to refrain from doing so

if the targeted area itself was populated by individuals, due to

the risk of injury. In addition to the expert testimony, the offi-

7978 NELSON v. CITY OF DAVIS

cers involved in Nelson’s shooting specifically testified in

their depositions that they were aware of these limitations and

safety concerns surrounding the use of pepperball guns. The

involved officers were therefore well aware of the risks that

accompanied the use of pepperball projectiles, particularly

when fired at a distance well beyond that approved under their

guidelines.

[6] The actual harm caused to Nelson “is certainly relevant

in evaluating the degree of the Fourth Amendment intrusion.”

Bryan, 630 F.3d at 824-25. We conclude that both the risk of

harm and the actual harm experienced by Nelson were signifi-

cant and must be justified by substantial government interests.

B.

To evaluate the need for the government’s use of force

against Nelson we consider a number of factors, including

“the severity of the crime at issue, whether . . .[Nelson]

pose[d] an immediate threat to the safety of the officers or

others, and whether he . . . actively resist[ed] arrest or attemp-

t[ed] to evade arrest by flight.” Graham, 490 U.S. at 396.

[7] The first factor, the severity of the crime at issue,

weighs heavily in favor of Nelson and against the use of the

force employed by the officers. The police did not contend

that Nelson or any of his companions were committing a

crime at the time that he was shot. After he was incapacitated,

the police did not place him under arrest but rather walked

past him as he lay on the ground. Upon learning of an injured

partygoer, Wilson investigated Nelson to determine whether

there was a possibility that he could be charged with any

crime and concluded that there was not. Consistent with the

police’s own investigation, Nelson has never been charged

with any crime, and neither have any of his comrades.5 Even

5

The defendants now attempt to characterize Nelson as a “willful

trespasser/rioter/non-disperser.” This characterization is belied by the

NELSON v. CITY OF DAVIS 7979

if the group was trespassing, based on a willful refusal to

leave the property, such an act is only a misdemeanor under

California law. Cal. Pen. Code § 602(l)(1). Trespassing, while

a legally-punishable offense, is a minor infraction that justi-

fies, at most, only a minimal use of force. See Davis v. City

of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007). Although

the officers plainly had an interest in clearing the apartment

complex after permission to do so was obtained from the

property owner, the desire to do so quickly, in the absence of

any actual exigency, cannot legitimize the application of force

when it is not otherwise justified. See Deorle v. Rutherford,

272 F.3d 1272, 1281 (9th Cir. 2001). Thus, the lack of serious

criminal behavior by Nelson, and the absence of exigency

involved in the officers’ desire to clear the apartment com-

plex, significantly reduce the governmental interest involved,

and thus provide only minimal, if any, justification for the use

of force under Graham.

The fact that Nelson and his friends did not commit any

chargeable offense, or, at most, a misdemeanor, weighs heav-

ily against the defendants’ use of force but does not necessar-

ily in itself determine the outcome of the reasonableness

analysis. As we have recognized in prior cases, the degree of

threat posed by the suspect is the most important factor.

Bryan, 630 F.3d at 826; Chew v. Gates, 27 F.3d 1432, 1441

(9th Cir. 1994). The “calculus of reasonableness must embody

defendants’ own conclusion that Nelson had not committed a chargeable

offense. Further, despite being unaware of the officers’ orders to disperse,

all members of Nelson’s group contended that they were attempting to

extricate themselves from the party when Nelson was shot, and thus were

not “willfully trespassing,” “non-dispersing,” or “rioting,” as the defen-

dants allege. Regardless of whether the defendants now wish to contend

that Nelson was a rioter, a “non-disperser,” or an armed felon, the plaintiff

has presented substantial evidence that would permit a jury to conclude

that he was none of these and, as on review of the defendants’ summary

judgment motion we must construe the facts in the light most favorable to

the plaintiff and cannot accept the defendants’ assertions to the contrary,

belated or otherwise.

7980 NELSON v. CITY OF DAVIS

allowance for the fact that police officers are often forced to

make split-second judgments — in circumstances that are

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

force that is necessary in a particular situation,” Robinson,

278 F.3d at 1009 (quoting Graham, 490 U.S. at 396-97). We

must also consider whether the officers reasonably perceived

Nelson and his friends as posing a threat to the officers’ safety

or the safety of other civilians, regardless of whether they ulti-

mately determined that no one had engaged in criminal con-

duct.

[8] While the threat analysis must be based on objective

factors and not merely “a simple statement by an officer that

he fears for his safety or the safety of others,” Deorle, 272

F.3d at 1281, the undisputed facts support the conclusion that

the officers did not reasonably believe Nelson or any of his

companions posed a threat. Although the officers encountered

individuals at various points during their sweeps who threw

bottles or other debris at them, or haphazardly threw such

items throughout the complex, the defendants admit that they

never saw Nelson throw anything — in their direction or in

any other direction. The same is true of the other students

gathered with Nelson in the breezeway. More than one of the

defendant officers stated in their depositions that they did not

see anyone in Nelson’s group throwing bottles or engaging in

any other threatening or dangerous behavior. Additionally, the

officers did not have a reasonable belief that Nelson or his

friends had engaged in violent behavior or that he or the stu-

dents on the breezeway with him might do so absent the offi-

cers’ intervention by force. Even affording due weight to the

tumultuous circumstances in which the use of force took

place, there was no indication that Nelson or his colleagues —

college students taking cover in the breezeway — represented

a threat to anyone’s safety. These individuals were observed

prior to the officers’ use of force and were seen not to be

engaged in any violent conduct. Nonetheless, the projectiles

were launched towards them. Under these circumstances, the

general disorder of the complex cannot be used to legitimize

NELSON v. CITY OF DAVIS 7981

the use of pepperball projectiles against non-threatening indi-

viduals. See Deorle, 272 F.3d at 1281-83; Headwaters I, 240

F.3d at 1202-04; Ciminillo v. Streicher, 434 F.3d 461, 467-68

(6th Cir. 2006). When we consider the degree of threat posed

by Nelson and his friends, we once again conclude that this

factor weighs strongly against the use of force.

[9] Last among the factors considered in the Graham anal-

ysis is whether Nelson and his friends were actively resisting

or attempting to evade arrest. As we have previously recog-

nized, resistance “runs the gamut from the purely passive

protestor who simply refuses to stand, to the individual who

is physically assaulting the officer.” Bryan, 630 F.3d at 830.

Even passive resistance may support the use of some degree

of governmental force if necessary to attain compliance, how-

ever “the level of force an individual’s resistance will support

is dependent on the factual circumstances underlying that

resistance.” Id. As already stated, the officers never attempted

to place Nelson or his associates under arrest, so we need con-

sider only whether the degree of force employed may be justi-

fied by a failure to comply with orders given by the officers.

According to the events attested to by Nelson and his asso-

ciates, which we must accept as true for purposes of this qual-

ified immunity appeal, the police did not give orders to the

group until after the shooting of the projectiles had already

occurred. There can therefore be no failure to comply with

orders, and Nelson’s actions cannot be viewed as even passive

non-compliance. Although Nelson may not have acted as the

officers wished, their unannounced preferences are not substi-

tutes for police orders. See Deorle, 272 F.3d at 1282 (noting

the object of police force “certainly could not have been

expected to comply with instructions that were never given to

him”).

Even if we were to accept the officers’ version of the

events, and assume that they issued orders to disperse without

sound amplification and at a distance of 45 to 150 feet from

the group, Nelson’s failure to comply immediately could only

7982 NELSON v. CITY OF DAVIS

rise to the level of passive resistance. In prior cases, we have

recognized that a failure to fully or immediately comply with

an officer’s orders neither rises to the level of active resis-

tance nor justifies the application of a non-trivial amount of

force. We have so held even when the extent of the resistance

was substantially greater than Nelson and his friends’ simple

failure to disperse. See, e.g., Young v. Cnty. of L.A., 655 F.3d

1156, 1165-66 (9th Cir. 2011) (arrestee’s repeated refusal to

reenter vehicle at officer’s command is not active resistance);

Bryan, 630 F.3d at 829-30 (arrestee’s cursing and muttering

to himself and exiting his vehicle despite being told to stay in

car was not active resistance); Davis, 478 F.3d at 1055-56

(arrestee’s actions in physically impeding the officer’s search

of his pockets was not active resistance); Smith v. City of

Hemet, 394 F.3d 689, 703 (9th Cir. 2005) (en banc)

(arrestee’s refusal to remove hands from pockets and his reen-

try of his home despite officers’ orders to place hands on head

and walk towards them was not active resistance); Headwa-

ters II, 276 F.3d 1125, 1130 (protestors that remained seated

and used “black bear” devices to lock themselves to one

another despite officers’ orders to disperse did not actively

resist); cf. Jackson v. City of Bremerton, 268 F.3d 646, 652-63

(9th Cir. 2001) (arrestee who repeatedly physically interfered

with officer’s arrest of a third party was actively resisting).

As our prior cases illustrate, active resistance is not to be

found simply because of a failure to comply with the full

extent of an officer’s orders. To the contrary, where an indi-

vidual’s “resistance was [not] particularly bellicose,” Smith,

394 F.3d at 703, we have held that various applications of

force, including the use of pepper spray, Headwaters II, 276

F.3d 1125, and bean bag projectiles, Deorle, 272 F.3d 1272,

were not reasonable. Therefore, even if Nelson heard and was

in non-compliance with the officers’ orders to disperse, this

single act of non-compliance, without any attempt to threaten

the officers or place them at risk, would not rise to the level

of active resistance. There is therefore no justification for the

use of force to be found in the third Graham factor.

NELSON v. CITY OF DAVIS 7983

[10] In addition to the considerations set forth in Graham,

this court has recognized that although officers “are not

required to use the least intrusive degree of force possible,”

Forrester, 25 F.3d at 807, “the availability of alternative

methods,” Smith, 394 F.3d at 701, is a relevant factor in deter-

mining whether the amount of force used in a particular

instance was, in fact, reasonable. The officers contend that

their use of the pepperball guns was necessary because their

prior attempts to disperse the crowd had failed. The actions of

the officers when they approached Nelson’s group are in dis-

pute; however various witnesses stated that the officers stood

at a distance between 45 to 150 feet for a period of at least

a few minutes without making known to the partygoers what

they were expected to do. A number of officers then shot their

weapons in the direction of the group, hitting the walls in

addition to Nelson himself. Regardless of where the officers

hoped their projectiles would land, they were aware from their

training that they could not accurately target their weapons at

a distance beyond thirty feet and that the projectiles fired from

beyond that distance would likely stray from their intended

path. Additionally, the officers had been trained that they

were not to use pepperballs to hit individuals who were not

posing a safety risk and that area contamination should not be

attempted if the area was occupied due to the risk of injury.

Thus the officers could have altered their tactics to bring them

in compliance with their own training, which would have

minimized the degree of force applied or eliminated the need

for force altogether.

[11] Finally, we have held that “the giving of a warning or

the failure to do so is a factor to be considered in applying the

Graham balancing test.” Deorle, 272 F.3d at 1284 (reasoning

that the absence of warning made use of force more unreason-

able under the circumstances); cf. Forrester, 25 F.3d 804

(holding that use of force was not unreasonable, in part

because protesters were given warning and instructions on

how to comply before force was applied). Here, the officers

claim to have instructed the partygoers to disperse, but it is

7984 NELSON v. CITY OF DAVIS

undisputed that they lacked any means with which to amplify

their voices so that they could be heard over the din of the

crowd. Witnesses who were with Nelson at the party stated

that they did not hear any orders given until after Nelson had

already been shot. Additionally, there is nothing in the record

that indicates that the group was told prior to the shooting

how they should comply with the dispersal orders (particu-

larly when the officers were blocking their primary means of

egress) or that force would be used against them if they did

not behave in a particular manner. Thus the failure to give

sufficient warnings also weighs against the government’s

decision to use force against Nelson and his associates.

[12] It is clear from the above that the governmental inter-

est in applying force to Nelson or any member of his group,

party-goers posing no visible threat and demonstrating no

unwillingness to comply with the officers’ orders, was mini-

mal at best.

C.

[13] The factors that justify the use of force must be

weighed against the degree of intrusion posed by the particu-

lar type of force to determine if the use in the particular

instance was reasonable. In the final analysis, the only gov-

ernmental interest involved in the application of force to Nel-

son and his friends was the officers’ desire to clear the

complex of the party-going individuals. There is no evidence

that the officers reasonably believed that Nelson or his friends

posed a risk to the officers or any other persons; the officers

had no interest in arresting them; and the group engaged in

passive resistance, at most, by failing to immediately disperse

if and when such an order was given. The officers’ general

interest in clearing the complex does not provide a legitimate

governmental interest sufficient to justify the use of the force

at issue. While it is undisputed that there were individuals

hurling both bottles and expletives at officers, it is also undis-

puted that Nelson and his companions were not among them,

NELSON v. CITY OF DAVIS 7985

and the individuals causing the problems were not so numer-

ous that the two categories of partygoers were indistinguish-

able. The application of force to Nelson’s group therefore

could not have been justified by the government’s interest in

stopping any and all disorderly behavior. Nor, even if we

were to consider all the partygoers as a single entity, was the

desire to clear the area sufficient justification for employing

the force used by the government — the firing of pepperball

projectiles with the potential kinetic impact of the projectile

and the actual impact of the pepper spray, resulting in this

instance in serious and permanent injury to one or more indi-

viduals. This force resulted in substantially more than a mini-

mal intrusion and was not justified by the governmental

interest in dispersing a group of student partygoers who could

most likely be dispersed by less forceful means. We therefore

conclude that the force used by the government was unreason-

able and resulted in a violation of the Fourth Amendment.

III.

Although we hold that the officers’ use of force against

Nelson was unreasonable, in order to deny qualified immunity

to the officers in this case we must also determine that at the

time of the incident it was clearly established that such con-

duct would violate Nelson’s Fourth Amendment rights. The

clearly established requirement protects government officials

“from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights

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

457 U.S. at 818. The determination whether a right was

clearly established “must be undertaken in light of the specific

context of the case, not as a broad general proposition,” Sau-

cier v. Katz, 533 U.S. 194, 201 (2001); see also Brosseau v.

Haugen, 543 U.S. 194 (2004). While this inquiry must be case

specific, it is not so narrowly defined that it “allow[s] Appel-

lants, and future defendants, to define away all potential

claims,” Kelley v. Borg, 60 F.3d 664, 667 (9th Cir. 1995). To

the contrary, in applying the clearly established requirement,

7986 NELSON v. CITY OF DAVIS

courts recognize that “officials can be on notice that their con-

duct violates established law even in novel factual situations.”

Hope v. Pelzer, 536 U.S. 730, 741 (2002). “To show that the

right in question here was clearly established, [Nelson] need

not establish that [the officers’] behavior had been previously

declared unconstitutional, only that the unlawfulness was

apparent in light of preexisting law.” Jensen v. City of

Oxnard, 145 F.3d 1078, 1085 (9th Cir. 1998) (quoting Blue-

ford v. Prunty, 108 F.3d 251, 254 (9th Cir.1997)) (internal

quotation marks omitted).

[14] Despite the defendants’ contentions to the contrary, it

was clearly established prior to April 2004, the time of Nel-

son’s shooting, that the intentional application of force which

terminates an individual’s freedom of movement results in a

seizure. See, e.g., Hodari D., 499 U.S. 621; Brower, 489 U.S.

593. All that remains is to determine whether the law was suf-

ficiently clearly established that a reasonable officer would

have been on notice that the use of pepperball projectiles

directed towards Nelson and his friends was unreasonable

under the circumstances.

[15] Although the Graham factors clearly weighed against

the use of force given the slight governmental interest

involved, further notice is required to inform a reasonable

officer that his acts will amount to a constitutional violation.

Brosseau, 543 U.S. at 199. Defendants correctly note that

there is no binding precedent that has specifically addressed

the use of pepperball projectiles. As we have previously held,

however, “[a]n officer is not entitled to qualified immunity on

the ground[ ] that the law is not clearly established every time

a novel method is used to inflict injury.” Deorle, 272 F.3d at

1286 (quoting Mendoza v. Block, 27 F.3d at 1362) (alterations

in original) (internal quotation marks omitted). Pepperball

projectiles, while a relatively new means of applying both

pepper spray and concussive force to the target, merely com-

bine two types of force that we have already recognized as

unreasonable when aimed at individuals who pose no threat

NELSON v. CITY OF DAVIS 7987

and have committed, at most, minor offenses. See Headwaters

II, 276 F.3d at 1130; Deorle, 272 F.3d at 1285.

In the cases in which we have held that the unreasonable

application of a new form of force was not clearly established,

our holdings were premised on the fact that these particular

methods represented novel means of applying pain. See, e.g.,

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

(not clearly established that the use of a taser to deliver an

electric shock to the target or override the victim’s nervous

system was unreasonable); Bryan, 630 F.3d at 824, 833

(same); Boyd v. Benton Cnty., 374 F.3d 773 (9th Cir. 2004)

(not clearly established that officers’ use of a sensory-

impairing “flash-bang” device was unreasonable). Although

the pepperball projectile is a relatively new mechanism by

which a combination of concussive impact and chemical irri-

tants can be applied to individuals by law enforcement, the

type of pain inflicted is the same or greater than that caused

by weapons that this court has already recognized constitute

excessive force when applied individually under similar cir-

cumstances. Thus, just as our prior cases provided notice to

all reasonable officers that targeting Nelson and his group

with a projectile weapon with concussive force that could

cause serious physical injury or targeting them with pepper

spray was unreasonable under the Fourth Amendment, our

precedents make it equally clear that utilizing a weapon

against Nelson’s group that combined both of these forms of

force amounted to a constitutional violation.

In LaLonde v. County of Riverside, 204 F.3d 947 (9th Cir.

2000), and Headwaters I and II, we held that the use of pep-

per spray, and a failure to alleviate its effects, was an unrea-

sonable application of force against individuals who were

suspected of only minor criminal activity, offered only pas-

sive resistance, and posed little to no threat of harm to others.

Under these precedents, any reasonable officer therefore

would have been on notice prior to April 2004 that the appli-

cation of pepper spray to individuals such as Nelson and his

7988 NELSON v. CITY OF DAVIS

associates, whose only transgression was the failure to dis-

perse as quickly as the officers desired, would violate the

Fourth Amendment.

Similarly, our decision in Deorle provides notice to a rea-

sonable officer that the firing of a projectile directed at Nelson

or his colleagues would be unreasonable. In Deorle, we held

that shooting an individual with a projectile, there a bean bag,

that was also known to pose a greater risk of harm if it

impacted the eye — and that did impact the victim’s eye —

was unreasonable. Deorle, 272 F.3d at 1285-86. Our conclu-

sion was based on the fact that the target was suspected of no

crime, only passively resisted officers, and posed a minimal

risk of harm. Id. In Deorle, we recognized that the type of

“force used . . . [was] capable of causing serious injury to the

person shot, and that such injury may occur in any given

instance.” Id. at 1284. In so doing, we noted that the potential

for injury must not be evaluated on the presumption that the

“shot . . . will hit the precise part of the body at which it is

aimed by the shooter,” but rather based on its capacity for

causing serious harm. Id. at 1285 n. 23. Despite not having

previously recognized specifically the use of a beanbag pro-

jectile as an unreasonable application of force, we denied the

defendant-officer qualified immunity and held that “[e]very

police officer should know that it is objectively unreasonable

to shoot — even with lead shot wrapped in a cloth case — an

unarmed man who[ ] has committed no serious offense . . .

has been given no warning of the imminent use of such a sig-

nificant degree of force, poses no risk of flight, and presents

no objectively reasonable threat to the safety of the officer or

other individuals.” Id. at 1285.

The dual nature of the pepperball projectile creates addi-

tional risks not present with a strictly projectile object, as used

by the officer in Deorle. Nonetheless, even if considered as a

purely projectile object, the officers in this case were aware

that pepperballs fired from their guns could, as in this

instance, cause substantial harm, and that there was a substan-

NELSON v. CITY OF DAVIS 7989

tial risk of hitting individuals in vulnerable areas given the

inability to accurately target their weapons at the distance at

which they fired them.6 In light of our holding in Deorle, a

reasonable officer would have known that firing projectiles,

including pepperballs, in the direction of individuals sus-

pected of, at most, minor crimes, who posed no threat to the

officers or others, and who engaged in only passive resis-

tance, was unreasonable.

[16] Under the factual circumstances present in this case,

a reasonable officer would have been on notice that both the

firing of a projectile that risked causing serious harm, in the

direction of non-threatening individuals who had committed

at most minor misdemeanors, and the release of pepper spray

in the area occupied by those individuals, would constitute

unreasonable force in violation of the Fourth Amendment.

The defendants contend that a consideration of the larger con-

text in which the force was used compels a different conclu-

sion. They are correct that the context of the officers’ actions

must be considered, and indeed in reaching our conclusion,

we have taken into account the particular circumstances in

which the use of force occurred on Picnic Day at U.C. Davis.

We must nonetheless conclude that the unreasonableness of

their conduct would have been known to any reasonable offi-

cers. Although the officers used force against Nelson and his

6

Although we rely on our precedent to hold that the officers were on

notice that their actions were unreasonable, we also note that the officers’

own training on the use of pepperball guns put them on notice that they

were not to target individuals with such weapons from the distance

involved here or shoot persons who were not actively posing a risk; nor

were they to use area contamination when the targeted area was occupied

due to the risk of injuring individuals. The defendants in this case there-

fore had clear notice from their own training that the use of this particular

weapon created a risk of injury and was unreasonable in the manner that

it was deployed against Nelson and his friends. See Drummond, 343 F.3d

at 1061-62 (citing the officers’ training manuals as “relevant not only to

whether the force employed in this case was objectively unreasonable . . .

but also to whether reasonable officers would have been on notice that the

force employed was objectively unreasonable”).

7990 NELSON v. CITY OF DAVIS

group during their attempt to disperse a crowd, there was no

exigency motivating the officers’ actions and they were aware

at the time of the shooting that they were using force that

might lead to serious injury against non-threatening individu-

als who had committed no serious crime.

[17] The Tenth Circuit came to the same conclusion under

strikingly similar circumstances. In Fogarty v. Gallegos, 523

F.3d 1147 (10th Cir. 2008), the officers used a pepperball gun

against plaintiff Fogarty when he attended a large demonstra-

tion against the Iraq war on a college campus. Fogarty testi-

fied that he did not hear or understand any orders from the

police instructing the demonstrators to disperse prior to the

use of force and, although arrested at the scene, Fogarty was

never charged with any crime. As in the case before us, the

Tenth Circuit’s consideration of “each of the Graham factors

balance[d] in [the plaintiff ’s] favor.” Id. at 1161. Although

the court acknowledged that none of its precedential opinions

had discussed the use of pepperballs, it nonetheless held that

the officers were on notice that the use of a new pain-

compliance technique such as pepperballs “against nonviolent

misdemeanants who do not flee or actively resist arrest,” id.

(quoting Casey v. City of Fed. Heights, 509 F.3d 1278, 1285

(10th Cir. 2007)) (internal quotation marks omitted), consti-

tuted unreasonable force and that the circumstances did not

present a “case . . . so close that our precedents would fail to

portend the constitutional unreasonableness of defendants’

alleged actions.” Id. at 1162. Although Fogarty was decided

in 2008 and could not itself have provided notice that the fir-

ing of the pepperball guns in 2004 was unreasonable, the

Fogarty court relied on our decisions in Headwaters II and

Lalonde as the basis for its conclusion that the officers should

have been well aware in March 2003, one year prior to the

U.C. Davis shooting, that the use of a pepperball gun against

a non-threatening individual committing a minor crime, even

in the context of a large disturbance, was unreasonable. Id. at

1161-62; see also Ciminillo, 434 F.3d at 469 (citing Deorle

in holding that it was clearly established in 2002, two years

NELSON v. CITY OF DAVIS 7991

prior to the Picnic Day shooting, that the firing of a beanbag

projectile at a non-threatening individual at the scene of a riot

was unreasonable); Logan, 392 F. Supp. 2d at 1265-68 (citing

Headwaters II and Lalonde in holding that it was clearly

established in 2002 that the indiscriminate use of pepper spray

without warning against individuals in close proximity to a

fight was unreasonable). We agree with the conclusion

reached by the Tenth Circuit and the other courts. We hold

that a reasonable officer should have known that the firing of

the pepperball gun towards Nelson and his friends, given the

minimal governmental interests at stake, was in violation of

Nelson’s clearly established Fourth Amendment right, even

when that force was applied in the larger context of crowd

dispersal.

The order of the district court denying qualified immunity

to the defendants is AFFIRMED.