Dejuan Hopson v. Jacob Alexander

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEJUAN MARKEISS HOPSON, No. 21-16706

Plaintiff-Appellee, D.C. No.

2:20-cv-00128-

v. SMB-DMF

JACOB ALEXANDER; BRANDON

GRISSOM, OPINION

Defendants-Appellants,

Appeal from the United States District Court

for the District of Arizona

Susan M. Brnovich, District Judge, Presiding

Argued and Submitted August 10, 2022

San Francisco, California

Filed June 16, 2023

Before: Johnnie B. Rawlinson, Bridget S. Bade, and

Daniel A. Bress, Circuit Judges.

Opinion by Judge Bress;

Dissent by Judge Rawlinson

2 HOPSON V. ALEXANDER

SUMMARY*

Civil Rights / Qualified Immunity

The panel reversed the district court’s denial of qualified

immunity to police detectives Jacob Alexander and Brandon

Grissom in an action brought pursuant to 42 U.S.C. § 1983

alleging defendants used excessive force when they pointed

a gun at plaintiff and forcefully extracted him from a car,

without identifying themselves as law enforcement officers.

Believing that two men were about to engage in the

armed robbery of a gas station, defendants approached the

suspects’ vehicle with guns pointed, forcibly removed the

driver, plaintiff DeJuan Hopson, and handcuffed him.

In holding that the officers were entitled to qualified

immunity, the panel first determined that it was not clearly

established that the officers lacked an objectively reasonable

belief that criminal activity was about to occur. Under the

qualified immunity framework and given the suspicious

Terry-like conduct observed here, no clearly established law

gave the panel cause to second-guess Detective Alexander’s

on-the-ground suspicion that an armed robbery was about to

occur. And an armed robbery necessarily involves the use

of weapons. Clearly established law therefore did not

prevent the officers from suspecting plaintiff might be

armed—which, in fact, he was.

The panel held that defendants did not violate clearly

established law when they pointed their guns at plaintiff.

*

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

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

HOPSON V. ALEXANDER 3

Noting that this Circuit’s law makes clear that pointing a gun

at a suspect is not categorically out of bounds, the panel

could find no authority that placed the unconstitutionality of

the detectives’ conduct beyond debate in the circumstances

they confronted.

The panel next rejected plaintiff’s contention that

defendants violated clearly established law by using

excessive force when removing him from the car and

arresting him. No clearly established law prevented the

detectives from acting quickly and with moderate force to

ensure that plaintiff was detained without incident. Thus, no

controlling authority clearly established beyond debate that

the amount of force used during plaintiff’s arrest was

objectively unreasonable.

Finally, the panel rejected plaintiff’s argument that the

detectives violated clearly established law in failing to

identify themselves as law enforcement officers. Under the

circumstances of this case, precedent did not clearly

establish that the detectives’ alleged failure to identify

themselves as police officers made their use of force

excessive.

Dissenting, Judge Rawlinson stated that under the facts

of this case, viewed in the light most favorable to plaintiff,

the officers violated clearly established law when they

forcefully yanked plaintiff from his vehicle at gunpoint

without warning and forcefully handcuffed him, when he

was merely conversing with a passenger in the vehicle and

posed no immediate threat to the officers or to the

public. Because the officers who used this gratuitous and

violent excessive force against plaintiff were not entitled to

qualified immunity, Judge Rawlinson would affirm the

district court’s judgment.

4 HOPSON V. ALEXANDER

COUNSEL

Alexander J. Lindvall (argued), Deputy City Attorney, City

of Mesa Attorney’s Office, Mesa, Arizona, for Defendants-

Appellants.

Margarita Botero (argued) and Mary V. Sooter, Wilmer

Cutler Pickering Hale and Dorr LLP, Denver, Colorado;

Sophie B. Cooper, Wilmer Cutler Pickering Hale and Dorr

LLP, San Francisco, California; Thomas Lampert,

WilmerHale, Boston, Massachusetts; Oren Nimni, Rights

Behind Bars, Washington, D.C.; for Plaintiff-Appellee.

HOPSON V. ALEXANDER 5

OPINION

BRESS, Circuit Judge:

Believing that two men were about to engage in the

armed robbery of a gas station, Detectives Jason Alexander

and Brandon Grissom approached the suspects’ vehicle with

guns pointed, forcibly removed the driver, and handcuffed

him. The officers found a firearm in the vehicle. The driver

of the car had a felony conviction and could not legally

possess the gun. We consider here not the lawfulness of the

driver’s conduct (at least not directly), but that of the

officers. In this case, the driver, DeJuan Hopson, has sued

the detectives under 42 U.S.C. § 1983, alleging that they

used excessive force when pointing a gun at him and

forcefully extracting him from the car, all without

identifying themselves as law enforcement officers.

We hold that the officers are entitled to qualified

immunity. All we decide is whether the officers violated

clearly established constitutional law in the circumstances

they confronted. They did not. We reverse the district

court’s denial of qualified immunity and remand for

proceedings consistent with this opinion.

I

On January 25, 2018, Detective Jacob Alexander pulled

his unmarked police vehicle into a Gilbert, Arizona gas

station to purchase a drink. He watched as another driver,

later identified as Tommy Jones, backed into a parking spot,

“cran[ed] his neck,” and “nervously” looked around. Jones

repeated this behavior several times, each time backing into

a new parking spot and “turn[ing] his body 180 degrees in

the vehicle to get a good look at his surroundings.”

6 HOPSON V. ALEXANDER

Jones remained in his vehicle throughout, leading

Alexander to conclude that Jones “had no intention of

making a purchase at the gas station.” It appeared to

Alexander that Jones was scouting around for police

officers, video cameras, or other means by which he could

be detected, and that Jones was trying to find a parking spot

that would allow a hasty exit. Based on Jones’s “abnormally

nervous” behavior and Alexander’s training and decade-plus

of law enforcement experience, Alexander believed Jones

was “casing” the gas station and that “an armed robbery was

about to occur.”

After watching this activity go on for approximately

fifteen minutes, Alexander observed plaintiff DeJuan

Hopson drive into the parking lot and park alongside Jones.

Jones then exited his own vehicle and got into Hopson’s.

Alexander watched them converse and exchange items. At

one point, Jones retrieved something from his own car and

returned to Hopson’s vehicle. Believing that Jones and

Hopson were about to embark on criminal activity and

knowing that traffic stops can be dangerous, Alexander

called for backup. Detective Brandon Grissom arrived a few

minutes later, apparently accompanied by four other

officers. Grissom parked his police car (which we assume

was also unmarked) behind Hopson’s vehicle.

Although what happened next is disputed, we recite

Hopson’s version of the story. Detective Alexander

approached Hopson’s driver’s side door with his gun pointed

out. Alexander opened the door and “forcefully removed”

Hopson from the vehicle. In doing so, he yanked Hopson’s

left arm with “enough force to put [him] in a state of shock

and make [him] think that [he] was being robbed,” and then

“forcefully” handcuffed him while “verbally dar[ing]”

Hopson to make a move. Alexander never announced that

HOPSON V. ALEXANDER 7

he was a police officer. Detective Grissom stood nearby

throughout the encounter and kept his gun pointed at

Hopson. Another officer pulled Jones out of the passenger

side of the vehicle, and three more officers also stood by, all

with guns drawn. Although Hopson alleges no physical

injury, he claims that Alexander and Grissom’s actions

caused him to experience “depression, anxiety, loss of sleep,

nervous[ness], and a fear of retaliation.”

The detectives questioned Hopson about the smell of

marijuana emanating from the car and checked Hopson’s

driver’s license status and criminal history. This turned up

Hopson’s prior felony convictions for aggravated assault and

several weapons-related offenses, that he was on probation

for another crime, and that his license was suspended. Both

because he was a convicted felon and because he was on

probation, Hopson was not permitted to possess a firearm.

Based on the marijuana odor coming from the car and

Hopson’s inability to demonstrate he could use marijuana for

medical purposes (as well as the fact of Hopson driving with

a suspended license), the detectives undertook a search of

the car. They first found marijuana but then discovered a

Glock handgun with an extended magazine between the

driver’s seat and the center console.

Alexander placed Hopson under arrest. Hopson was

later charged in Maricopa County Superior Court with

possession of marijuana and unlawful possession of a

firearm. Hopson filed a motion to suppress the evidence

found in his car, arguing that there was insufficient

justification for an investigatory stop. Finding that there was

not reasonable suspicion to support the stop, the state trial

court granted Hopson’s motion and dismissed all charges

without prejudice.

8 HOPSON V. ALEXANDER

On April 23, 2020, Hopson filed a pro se complaint

against Alexander and Grissom (Hopson now has counsel on

appeal).1 Hopson brought claims under § 1983, alleging that

the detectives violated the Fourth and Fourteenth

Amendments when they (1) stopped him without reasonable

suspicion and (2) used excessive force when arresting him.

The detectives moved for summary judgment, and

Hopson did not respond to their motion. The district court

compared the facts of this case to Terry v. Ohio, 392 U.S. 1

(1968), which it viewed as “very similar.” Finding that “a

reasonable officer easily could have believed that he had

reasonable suspicion to stop” Hopson and Jones, the court

granted summary judgment to the detectives on Hopson’s

unlawful stop claim. On the excessive force claim, however,

the district court found that it could not resolve “the key

factual dispute in this case—whether Defendants used any

force at all against Plaintiff, let alone unreasonable force.”

The district court therefore denied the detectives’ motion for

summary judgment on the excessive force claim.

Alexander and Grissom timely appeal.

II

Although we generally do not have jurisdiction to review

denials of summary judgment, which are interlocutory in

nature, a summary judgment order denying qualified

immunity is immediately appealable. Wilkinson v. Torres,

610 F.3d 546, 549–50 (9th Cir. 2010) (citing Scott v. Harris,

550 U.S. 372, 376 n.2 (2007)). In such an appeal, we decide

de novo whether the facts, “considered in the light most

1

The district court separately dismissed Hopson’s claims against the

other four officers. Those other officers are not part of this appeal.

HOPSON V. ALEXANDER 9

favorable to the plaintiff,” show that qualified immunity is

warranted. Ames v. King County, 846 F.3d 340, 347 (9th

Cir. 2017). Although we “assum[e] that the version of the

material facts asserted by the [plaintiff] is correct,” Jeffers v.

Gomez, 267 F.3d 895, 903 (9th Cir. 2001), we may consider

facts offered by the defendant that are “uncontradicted by

any evidence in the record,” Wilkinson, 610 F.3d at 551.

Here, we do not resolve any factual disputes, nor does

the factual dispute that the district court identified—

concerning the degree of force the detectives used— detain

us. We assume that Hopson’s version of the facts, which we

recited above, is the correct one. And we analyze the

qualified immunity question under that set of facts. See

Ames, 846 F.3d at 347.

A

Under the doctrine of qualified immunity, police officers

are not liable under § 1983 “unless (1) they violated a federal

statutory or constitutional right, and (2) the unlawfulness of

their conduct was ‘clearly established at the time.’” District

of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting

Reichle v. Howards, 566 U.S. 658, 664 (2012)). This

familiar conjunctive test allows us to approach the qualified

immunity question using either prong as our starting point.

Pearson v. Callahan, 555 U.S. 223, 236 (2009). We may

thus “exercise our discretion to resolve a case only on the

second ground when no clearly established law shows that

the officers’ conduct was unconstitutional.” O’Doan v.

Sanford, 991 F.3d 1027, 1036 (9th Cir. 2021).

Under the second prong of the inquiry, a constitutional

violation is clearly established only if existing law “placed

the constitutionality of the officer’s conduct ‘beyond

debate,’” such that “every ‘reasonable official would

10 HOPSON V. ALEXANDER

understand that what he is doing’ is unlawful.” Wesby, 138

S. Ct. at 589 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011)). “This demanding standard protects ‘all but the

plainly incompetent or those who knowingly violate the

law.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)). Although “a case directly on point” is not

necessarily required, a rule is only clearly established if it

has been “settled” by “controlling authority” or “a robust

consensus of cases of persuasive authority” that “clearly

prohibit[s] the officer’s conduct in the particular

circumstances,” with “a high degree of specificity.” Id. at

589–90 (quotations omitted). Importantly, we may not

“define clearly established law at a high level of generality,

since doing so avoids the crucial question whether the

official acted reasonably in the particular circumstances that

he or she faced.” Id. at 590 (quoting Plumhoff v. Rickard,

572 U.S. 765, 779 (2014)).

These guideposts, which the Supreme Court has

insistently fixed in many cases, have special relevance in the

Fourth Amendment context. See Mullenix v. Luna, 577 U.S.

7, 12 (2015) (per curiam). Fourth Amendment violations

generally, and excessive force claims more specifically, can

involve situations “in which the result[s] depend[] very

much on the facts of each case.” Plumhoff, 572 U.S. at 779

(quoting Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per

curiam)). The often fact-dependent nature of judicial

decision-making in this area can make it difficult for officers

to know in advance whether their actions will be found

unlawful. See Mullenix, 577 U.S. at 12. Plaintiffs asserting

excessive force claims must thus point to an existing rule that

“squarely governs” the facts at issue and that moves the

officer’s actions outside the “hazy border between excessive

and acceptable force.” Brosseau, 543 U.S. at 201 (quotation

HOPSON V. ALEXANDER 11

omitted); see also Rivas-Villegas v. Cortesluna, 142 S. Ct. 4,

8 (2021) (per curiam) (burden is on the plaintiff to identify

precedent “that put [the defendant] on notice that his specific

conduct was unlawful”).

To determine whether an officer used excessive force in

violation of the Fourth Amendment, we balance “the nature

and quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing

governmental interests at stake.” Felarca v. Birgeneau, 891

F.3d 809, 816 (9th Cir. 2018) (quoting Graham v. Connor,

490 U.S. 386, 396 (1989)). This requires us to take into

account the totality of the circumstances, including the “type

and amount of force inflicted,” “the severity of injuries,”

“the severity of the crime at issue,” “whether the suspect

poses an immediate threat to the safety of the officers or

others,” and “whether he is actively resisting arrest or

attempting to evade arrest by flight.” Id. at 817 (quotations

omitted). We may also consider “the availability of less

intrusive alternatives to the force employed and whether

warnings were given.” Id. Whether the suspect poses a

threat is “the most important single element.” Smith v. City

of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc)

(quotation omitted). We do not, however, consider these

factors with clinical detachment. We must evaluate them

appreciating that “police officers are often forced to make

split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount of force

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

at 396–97.

B

In this case, the general legal standards we have just set

forth do not on their own provide a basis for denying the

12 HOPSON V. ALEXANDER

detectives qualified immunity on Hopson’s excessive force

claim. The starting point for this analysis is determining

whether, under the existing case law, the officers could have

reasonably suspected that Hopson was engaged in criminal

activity and that he was armed and dangerous. We will then

proceed to determine whether it was clearly established that

the amount of force the officers used was excessive in light

of the perceived safety risk.

To begin, it was not clearly established that the officers

lacked an objectively reasonable belief that criminal activity

was about to occur. See Illinois v. Wardlow, 528 U.S. 119,

123 (2000) (“[A]n officer may, consistent with the Fourth

Amendment, conduct a brief, investigatory stop when the

officer has a reasonable, articulable suspicion that criminal

activity is afoot.”). Indeed, as the district court noted, the

events at issue here bear notable resemblance to those in the

Supreme Court’s seminal Terry decision.

There, an officer watched two men repeatedly pace in

front of a store window, peer around, and confer amongst

themselves for several minutes. 392 U.S. at 6. A third man

approached and briefly conversed with the other two before

walking away. Id. Shortly after, the two men also walked

off in the same direction. Id. The officer’s training and

experience led him to believe that the three men were casing

the store for a robbery, and he stopped and frisked all three

of them. Id. at 6, 28. The Supreme Court held that the

officer had reasonable suspicion that the men were armed

and dangerous, permitting the officer to frisk them for

weapons. Id. at 28. The suspects’ actions “were consistent

with [the officer’s] hypothesis that these men were

contemplating a daylight robbery—which, it is reasonable to

assume, would be likely to involve the use of weapons.” Id.

HOPSON V. ALEXANDER 13

In light of Terry, it is at the very least not clearly

established that a reasonable officer was required to

conclude that Jones and Hopson were not contemplating

criminal activity. True, the state trial court dismissed the

criminal charges against Hopson after finding that the initial

investigatory stop was unjustified. But we are now dealing

with a civil suit under § 1983, in which the doctrine of

qualified immunity comes into play. Hopson in this case

initially challenged the lawfulness of the detectives’

investigatory stop, but the district court granted qualified

immunity to the detectives on that claim. As the district

court properly concluded, “[b]ecause the facts of this case

are so similar to Terry, a reasonable officer easily could have

believed that he had reasonable suspicion to stop the Plaintiff

and his associate.”

Terry confirms that the detectives’ suspicion of a

planned armed robbery was not unreasonable. Terry was not

an excessive force case, and the police officer there did not

point a gun. We do not suggest that Terry answers the

excessive force question. But Terry shows, at the outset of

our analysis, the type of “casing” conduct that an officer may

reasonably view as suggestive of an armed robbery. Terry

furthermore tells us that when officers suspect a person of

“casing” a store for an armed robbery, they may reasonably

believe that person to be armed and dangerous.

Under the qualified immunity framework, and given the

suspicious Terry-like conduct observed here, no clearly

established law gives us cause to second-guess Detective

Alexander’s on-the-ground suspicion that an armed robbery

was about to occur. And an armed robbery necessarily

involves the use of weapons. See Terry, 392 U.S. at 28.

Clearly established law therefore did not prevent the officers

14 HOPSON V. ALEXANDER

from suspecting Hopson might be armed—which, in fact, he

was.

Our fine dissenting colleague sees things differently.

But in our respectful view, the dissent rests on a

misapprehension of the record. The dissent repeatedly

intones that there was “no indication” of a threatened crime

involving the use of force, and that Hopson thus posed “no

threat to the safety of the officers or to the safety of the

public.” Dissent 41, 45. But the dissent is grounded on its

determination that Hopson and Jones “were merely

conversing in a vehicle.” Dissent 43. As the dissent

describes the situation, officers pointed guns at Hopson and

yanked him from a vehicle “when he was merely conversing

with Jones and posed no immediate threat to the officers or

to the public.” Dissent 50.

Although we are obligated to construe the facts in favor

of the plaintiff at summary judgment, the record does not

support the dissent’s portrayal of the key events. This is not

a case of officers pouncing on mere conversationalists. The

dissent asserts that the officers “never conducted any

investigation” before removing Hopson from the vehicle.

Dissent 49. But Detective Alexander had in fact studied

Jones for fifteen minutes as Jones suspiciously reparked his

vehicle, craned his necked, scanned the parking lot, and

nervously looked around—conduct that Detective

Alexander perceived, based on his training and experience,

as pre-planning for an armed robbery. When Hopson arrived

and Jones entered Hopson’s car, Detective Alexander

watched the two exchange items, with Jones then going back

to his car to get something and returning to Hopson’s

vehicle.

HOPSON V. ALEXANDER 15

The dissent claims the latter points are disputed because

Hopson alleged in his complaint that the incident took place

“during a private conversation” between Hopson and Jones.

The dissent takes this allegation to mean that the two men

“were only engaged in conversation.” Dissent 34 n.1. But

Hopson has not contested that he and Jones exchanged items

or that Jones went back to his vehicle to retrieve something.

Hopson’s complaint does not create a conflict on these

points, nor did Hopson attest that he and Jones were “only”

conversing—the dissent has added the “only.” In fact, at oral

argument, Hopson’s counsel twice affirmatively noted

Alexander’s recollection that Hopson and Jones exchanged

items, without suggesting there was any dispute of fact on

this point.

Equally unfounded is the dissent’s suggestion that

Detective Alexander’s suspicions somehow waned as the

events wore on. Detective Alexander’s declaration states

that “Jones’s actions led me to suspect that an armed robbery

was about to occur,” and that after Hopson arrived and the

two exchanged items, “it was clear to me that Jones and

Hopson were engaged in criminal activity.” Seizing on the

latter portion of Alexander’s declaration, the dissent states

that “once Mr. Hopson arrived on the scene,” Detective

Alexander’s “suspicion morphed from a potential armed

robbery to the more generic ‘engag[ing] in criminal

activity.’” Dissent 35. The dissent goes so far as to assert

that “by the time Mr. Hopson arrived on the scene,”

Detective Alexander’s “belief” “had shifted to the

observation that the two individuals ‘were engaged in [some

unspecified] criminal activity.’” Dissent 47. But the dissent

has added the words in brackets to the quote of Detective

Alexander’s declaration. In context, it is clear that the

“criminal activity” to which Detective Alexander was

16 HOPSON V. ALEXANDER

referring was the only criminal activity he had previously

mentioned in his declaration: the planning of an armed

robbery.2 Nothing in Detective Alexander’s declaration

indicates that he no longer believed an armed robbery was in

the works or that his suspicions had abated. The dissent’s

determination that there was no threat to the public does not

rest on a permissible view of the facts.3

To the extent the dissent disagrees with how Detective

Alexander perceived the situation, its position fares no

better. In performing the qualified immunity analysis, we do

not “second-guess officers’ real-time decisions from the

standpoint of perfect hindsight.” O’Doan, 991 F.3d at 1036.

Nor has the dissent provided a basis to deem unreasonable

the inferences Detective Alexander drew, based on his

training and experience. When evaluating officers’

reasonable suspicions, “the facts must be filtered through the

lens of the agents’ training and experience.” United States

v. Valdes-Vega, 738 F.3d 1074, 1079 (9th Cir. 2013) (en

banc). Especially in light of Terry, no clearly established

law prevented Detective Alexander from reasonably

believing that based on the suspicious conduct he observed,

Hopson and Jones were planning an armed robbery of the

gas station.

2

The dissent suggests that Detective Alexander’s reference to “criminal

activity” could have merely been to suspected marijuana use, Dissent 37,

but Detective Alexander did not notice the odor of marijuana until he

confronted Hopson.

3

Contrary to suggestions in the dissent, the issue here is simply whether

the degree of force used in connection with the stop was excessive (and

violated clearly established law). This case does not involve a claim of

wrongful arrest for lack of probable cause.

HOPSON V. ALEXANDER 17

C

The question then becomes whether it was clearly

established that the degree of force the detectives used in

response to the perceived threat was excessive under the

Fourth Amendment. The general standards for excessive

force tell us that the proper uses of force can include the very

types of force used here: pointing a gun at a suspect and

handcuffing him. See Alexander v. County of Los Angeles,

64 F.3d 1315, 1320 (9th Cir. 1995) (emphasis added).

Indeed, we have expressly held that “[i]t is well settled that

when an officer reasonably believes force is necessary to

protect his own safety or the safety of the public, measures

used to restrain individuals, such as stopping them at

gunpoint and handcuffing them, are reasonable.” Id.

(emphasis added). The detectives thus argue that when

officers not unreasonably perceive the type of dangerous

threat suspected here, under Graham it is permissible to

point a gun at a suspect to secure the situation and ensure the

safety of those in the area, including that of the officers

themselves.

For our purposes, however, it is sufficient that the

general standards set forth in Graham and its progeny do not

clearly establish that the detectives’ use of force was

unlawful. The Supreme Court has been very clear: given the

often fact-bound features of excessive force claims, “police

officers are entitled to qualified immunity unless existing

precedent ‘squarely governs’ the specific facts at issue.”

Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam)

(quoting Mullenix, 577 U.S. at 13); see also, e.g., Brosseau,

543 U.S. at 201; Ventura v. Rutledge, 978 F.3d 1088, 1091

(9th Cir. 2020). The Graham standards for the most part

supply general rules of conduct; they are not typically a

prescription for what may be permissible in a specific case.

18 HOPSON V. ALEXANDER

The Supreme Court has thus clarified that the Graham

excessive force test does not “create clearly established law

outside an ‘obvious case.’” White v. Pauly, 137 S. Ct. 548,

552 (2017) (per curiam) (quoting Brosseau, 543 U.S. at

199).

There is no dispute here that what Detective Alexander

observed was sufficient to arouse suspicion. Even Hopson’s

counsel agreed at oral argument that “nobody is saying that

the officers could not have intervened.” The dissent, too,

agrees that some amount of intervention was warranted. But

when it comes to what that intervention could look like, as a

matter of clearly established law Graham did not, standing

alone, confine Detective Alexander to a menu of options less

forceful than the actions he took (which ultimately resulted

in no claimed physical injury to Hopson). Nor does Graham

clearly establish that Detective Alexander was prevented

from using the element of surprise, which has obvious

tactical advantages.

In brief, when Detective Alexander was observing

conduct that, in his training and experience, was indicative

of a potential imminent armed robbery, see Terry, 392 U.S.

at 28, the general legal standards we recited above did not

make what Alexander chose to do next “beyond debate”

under the Fourth Amendment. Wesby, 138 S. Ct. at 589

(quoting al-Kidd, 563 U.S. at 741). Qualified immunity may

of course be denied if the constitutional violation was

“obvious.” See id. at 590 (quoting Brosseau, 543 U.S. at

199). But there is no suggestion this is such a case. See id.

(noting that instances in which a violation of constitutional

HOPSON V. ALEXANDER 19

law are “obvious” without more specific case law are

“rare”).4

To overcome the detectives’ qualified immunity, then,

Hopson needs more specific case law that demonstrates the

unlawfulness of the detectives’ conduct under the “particular

circumstances” they confronted. Wesby, 138 S. Ct. at 589–

90 (quotations omitted). Hopson maintains that he has such

precedent. It is to a consideration of that case law that we

now turn.

III

Hopson focuses on three aspects of the detectives’

conduct that, in his view, were clearly prohibited under

existing precedent: (1) pointing a weapon at him; (2)

“forcefully” removing him from his vehicle and handcuffing

him; and (3) failing to announce that they were police

officers. But the cases Hopson cites are materially different

from this one. Hopson thus identifies no clearly established

law that would cause “every reasonable official” to

understand that any of these actions violate the Fourth

4

Hopson claims that the detectives did not actually believe he posed a

threat, relying primarily on the district court’s statement that the

detectives “have not pointed to any evidence in the record that

demonstrates that they believed, reasonably or otherwise, that Plaintiff

had a weapon or that he otherwise posed a threat to the safety of others

when Defendant Alexander approached Plaintiff’s vehicle.” But the

record contains an uncontradicted declaration from Detective Alexander

explaining that he did have such a belief. And as we noted, the district

court itself analogized this case to Terry, in which a detective reasonably

believed that individuals were casing a store in preparation for an armed

robbery. Regardless, the reasonableness of the detectives’ actions is a

“pure question of law” on which we do not give deference to the district

court. Scott, 550 U.S. at 381 n.8.

20 HOPSON V. ALEXANDER

Amendment in the circumstances of this case. Wesby, 138

S. Ct. at 590.

A

Hopson first claims that case law clearly establishes that

the detectives violated the Fourth Amendment when they

pointed their weapons at him. Hopson primarily relies on

three cases: Washington v. Lambert, 98 F.3d 1181 (9th Cir.

1996), Espinosa v. City of San Francisco, 598 F.3d 528 (9th

Cir. 2010), and Robinson v. Solano County, 278 F.3d 1007

(9th Cir. 2002) (en banc). None of these cases, however, is

factually analogous enough to clearly establish that the

detectives’ specific conduct was unlawful.

We begin with Washington. In that case, police stopped

two Black men at gunpoint on the asserted belief that they

were suspects in a string of armed robberies. Washington,

98 F.3d at 1183. None of the robberies had taken place in

the area in which the suspects were located, and the most

recent robbery had occurred almost a week earlier. Id.

Neither suspect fit the physical descriptions of the wanted

men, nor were they driving the type of vehicle that the

robbers had reportedly used. Id. at 1183–84. Officers

nonetheless followed the men from a fast-food restaurant to

a hotel, and, with a force seven officers strong, pointed their

guns at the men and handcuffed them. Id. at 1184. Police

released the men only once they realized these were not the

suspects for whom they were looking. Id. The men, a

magazine editor and a banking analyst, turned out to be

visitors to the Los Angeles area who were in town for a

Dodgers game. Id. at 1183.

Hopson argues that Washington put the detectives on

notice that it would be unlawful to exercise force without

first finding, based on specific information, that Hopson was

HOPSON V. ALEXANDER 21

resisting arrest or attempting to flee, that he was armed and

dangerous, that a violent crime had recently been committed

in the area, or that Hopson was about to commit a dangerous

crime. But Washington does not impose such a rigid

calculus, nor does it speak so clearly to the facts at hand.

Washington addressed a different question: the proper

framework for determining whether a police interaction

qualifies as a Terry stop or an arrest. Id. at 1185–92. We

held in Washington that the officers had effected an arrest

and that they lack probable cause to do so. Id. at 1192. We

did not decide whether the officers’ actions constituted

excessive force. And even then, and of more relevance here,

we did not create inflexible rules demarcating a stop from an

arrest. Instead, we explained that “whether the police action

constitutes a Terry stop or an arrest” is assessed “by

evaluating not only how intrusive the stop was, but also

whether the methods used were reasonable given the specific

circumstances.” Id. at 1185 (emphasis in original); see also

id. (“The relevant inquiry is always one of reasonableness

under the circumstances.” (quotation omitted)).

Hopson notes that in Washington, we stated that “all

people have a right to be free from the terrifying and

humiliating experience of being pulled from their cars at

gunpoint, handcuffed, or made to lie face down on the

pavement when insufficient reason for such intrusive police

conduct exists,” and that “police may not employ such

tactics every time they have an ‘articulable basis’ for

thinking that someone may be a suspect in a crime.” Id. at

1187. But this statement begs the question of when such

police conduct—including pointing a gun—may be

permissible. We have recognized that “the pointing of a gun

at someone may constitute excessive force, even if it does

not cause physical injury.” Tekle v. United States, 511 F.3d

22 HOPSON V. ALEXANDER

839, 845 (9th Cir. 2007). But Washington presumed what

our case law elsewhere makes clear: that gun-pointing is

permitted “when an officer reasonably believes force is

necessary to protect his own safety or the safety of the

public.” Alexander, 64 F.3d at 1320.

In Washington, the two men who were arrested “did

nothing immediately prior to or during their confrontation

with the police” to justify the officers’ conduct, and the

police, who were operating on an effectively baseless belief

that the men were suspects in a nearly week-old robbery, had

“no reason to believe that [the men] were about to commit

any crime.” 98 F.3d at 1190; see also id. at 1194 (Kozinski,

J., concurring in the judgment) (describing the facts of

Washington as “egregious”). Even if Washington were

transferable to the excessive force context, the facts at issue

in that case were considerably different than what we have

here, where Detective Alexander observed suspicious

conduct that led him to believe there was a threat of an armed

robbery. Washington therefore does not qualify as clearly

established law for purposes of the qualified immunity

inquiry in this case.

Hopson next points to our decision in Espinosa. See 598

F.3d at 537–39. In that case, officers entered a residence

after receiving a tip that it could be a drug house. Id. at 532.

Upon entry, the officers found a bloody shirt and one

resident with a knife. Id. at 532–33. Two officers then went

into the attic with their guns drawn, where they found

another individual, Asa Sullivan. Id. at 533. The officers

told Sullivan to put up his hands. Id. When he failed to do

so, they shot and killed him. Id. Sullivan was unarmed,

although both officers claimed they thought he was holding

something. Id.

HOPSON V. ALEXANDER 23

We held that summary judgment was inappropriate on

the question of whether the gun-pointing constituted

excessive force. Id. at 537–38. We reasoned that “pointing

a loaded gun at a suspect, employing the threat of deadly

force, is use of a high level of force.” Id. at 537. That level

of force may not have been justified because Sullivan “had

not been accused of any crime,” he “did not present a danger

to the public,” he “could not escape from the attic,” and there

was overall a “low level of threat.” Id. at 537–38. Sullivan

was also not the reason the officers had forcibly entered the

residence in the first place. Id. at 537.

The facts of Espinosa are too different to clearly

establish that the detectives acted outside the law in pointing

guns at Hopson. Hopson attempts to analogize his situation

by arguing that like Sullivan, he had yet to commit a crime.

But Espinosa did not purport to create a bright-line rule that

officers can only exercise force after they find a weapon or

witness a crime already in progress—a rule of law that would

pose obvious problems for public safety. See George v.

Morris, 736 F.3d 829, 838 (9th Cir. 2013) (“If the person is

armed—or reasonably suspected of being armed—a furtive

movement, harrowing gesture, or serious verbal threat might

create an immediate threat.”). Because the facts of Espinosa

are sufficiently distinguishable from this case, Espinosa

cannot “squarely govern[]” here for qualified immunity

purposes. See Brosseau, 543 U.S. at 201.

Robinson, too, is materially distinct. The officers in that

case were investigating a mere misdemeanor that had

occurred earlier in the day. 278 F.3d at 1010, 1014. At the

time the officers pointed their weapons at the 64-year-old

suspect, he had already peacefully approached them,

introduced himself, and begun cooperating. Id. at 1010.

Here, by contrast, Detective Alexander believed Hopson’s

24 HOPSON V. ALEXANDER

associate was casing the convenience store and saw him

acting nervously and abnormally. These observations not

unreasonably led Alexander to suspect an armed robbery

was about to take place. See Terry, 392 U.S. at 28.

Given these factual distinctions, Robinson does not

“squarely govern” this case. Cf. Thompson v. Rahr, 885 F.3d

582, 588 (9th Cir. 2018) (granting qualified immunity in

gun-pointing case and distinguishing Robinson on the

ground that it did not “feature facts sufficiently similar to the

pattern we address here to put the constitutional

question beyond debate as required to defeat qualified

immunity”). Notably, Robinson itself granted qualified

immunity to the officers because the constitutional right that

had been violated was not clearly established at the time.

278 F.3d at 1015–16.

Hopson cites other “gun pointing” cases finding

excessive force, but they, too, involve materially different

circumstances. E.g., Tekle, 511 F.3d at 845–46 (suspect was

an unarmed, “barefoot, eleven-year-old” child outside his

home who cooperated with the police); Hopkins v.

Bonvicino, 573 F.3d 752, 776–77 (9th Cir. 2009) (officer

was investigating a misdemeanor and knew the suspect “was

not a threat to officer safety”); Thompson, 885 F.3d at 584,

587 (suspect had already been searched for weapons and was

under the officer’s control, but qualified immunity was held

to apply nonetheless).

Our case law makes clear that pointing a gun at a suspect

is not categorically out of bounds. See Alexander, 64 F.3d

at 1320. Other courts are in accord. See, e.g., Williams v.

City of Champaign, 524 F.3d 826, 828 (7th Cir. 2008) (“[I]f

you are a police officer with reason to believe there may be

an armed robber in a van you approach with utmost caution,

HOPSON V. ALEXANDER 25

which may include pointing a gun at the occupants.”);

Courson v. McMillian, 939 F.2d 1479, 1496 (11th Cir. 1991)

(“[I]t is not unusual for a law enforcement officer to have his

weapon drawn[] when approaching individuals suspected of

drug involvement.”). Indeed, in Alexander itself, we held

that officers did not violate clearly established law in

pointing guns at robbery suspects in the course of detaining

them, even though it turned out to be a case of mistaken

identity. 64 F.3d at 1318, 1320.5

Because we can find no authority that places the

unconstitutionality of the detectives’ conduct “beyond

debate” in the circumstances they confronted, we hold that

the detectives did not violate clearly established law when

they pointed their guns at Hopson. See Wesby, 138 S. Ct. at

589.

B

Hopson next argues that the detectives violated clearly

established law by using excessive force when removing him

from the car and arresting him. Specifically, Hopson alleges

that Alexander “forcefully removed” him from his vehicle,

yanked his left arm with “enough force to put [him] in a state

5

The dissent notes that in Alexander, we did deny summary judgment

on one of the plaintiffs’ claims. Dissent 48. But that part of our decision

considered whether it was reasonable for police to refuse to loosen the

handcuffs on a dialysis patient until his hands swelled up and turned blue,

causing injuries that persisted nine months later. 64 F.3d at 1323. That

portion of our decision is not germane to this case. What is relevant here

is Alexander’s holding that “[i]t is well settled that when an officer

reasonably believes force is necessary to protect his own safety or the

safety of the public, measures used to restrain individuals, such as

stopping them at gunpoint and handcuffing them, are reasonable.” Id. at

1320.

26 HOPSON V. ALEXANDER

of shock and make [him] think that [he] was being robbed,”

and “forcefully” handcuffed him. We hold that once again,

the detectives are entitled to qualified immunity.

As the Supreme Court has long recognized, “the right to

make an arrest or investigatory stop necessarily carries with

it the right to use some degree of physical coercion.”

Graham, 490 U.S. at 396. “Not every push or shove, even if

it may later seem unnecessary in the peace of a judge’s

chambers, violates the Fourth Amendment.” Id. at 396

(internal quotation omitted); see also Demarest v. City of

Vallejo, 44 F.4th 1209, 1226 (9th Cir. 2022) (holding that an

officer did not violate the Fourth Amendment when she

forcefully removed a suspect from his car and handcuffed

him, even though the plaintiff argued the officer could have

used less force). Nor has Hopson identified factually

analogous authorities that establish “beyond debate” that the

detectives acted unlawfully in pulling him out of the car.

In most cases in which we have found that officers used

excessive force in the course of an arrest, the force used was

gratuitous or violent. See, e.g., Winterrowd v. Nelson, 480

F.3d 1181, 1182–83 (9th Cir. 2007) (officers pulled over a

man for driving with invalid license plates and knew that the

man had a shoulder injury, yet “forc[ed] him onto the hood

of the car,” “grabbed” his arm and “forced it up,” “appl[ying]

greater pressure” even as the suspect “screamed in pain”);

Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003)

(officers “forcibly threw [suspect] to the ground” when

investigating her for income tax violations); Santos v. Gates,

287 F.3d 846, 849–50, 853–54 (9th Cir. 2002) (officers

performed a take-down maneuver on the suspect, resulting

in broken vertebra and temporary paralysis); Palmer v.

Sanderson, 9 F.3d 1433, 1434–36 (9th Cir. 1993) (officers

pushed the suspect—an unarmed 67-year-old man who had

HOPSON V. ALEXANDER 27

recently suffered a stroke—“with such force that [he] fell

over sideways,” “fastened [his] handcuffs so tightly around

his wrist that they caused [him] pain and left bruises that

lasted for several weeks,” and ignored his plea to loosen the

handcuffs).

We have at times found less egregious police conduct

during arrests still to violate the Fourth Amendment. But in

these cases, the government interests at stake have been

correspondingly lower. For example, in Liberal v. Estrada,

632 F.3d 1064 (9th Cir. 2011), we found a police officer’s

use of force violated the Fourth Amendment because it

occurred “after [the plaintiff] had complied with [the

officer’s] requests” and after the officer checked his driver’s

license and license plate number and found “nothing

untoward.” Id. at 1079. The officer in Liberal had observed

the plaintiff “obeying all traffic laws,” had witnessed no

conduct suggesting that the plaintiff had violated or would

violate any law, and the “[p]laintiff did not pose an

immediate threat to anyone’s safety.” Id. at 1068, 1079.

With such minimal government interests at stake, the

officer’s use of force—“grabb[ing] [the plaintiff] by the

wrist, pull[ing] him out of the car, sp[inning] him around,

and . . . shov[ing] [him] against the door with enough force

to rock the car”—was unreasonable. Id. at 1069.

Likewise, in Hansen v. Black, 885 F.2d 642 (9th Cir.

1989), the suspect was taking out her garbage and complying

with the law at the time she was arrested. Id. at 643. Under

her version of the facts, police lacked probable cause to

arrest her. See id. at 644. We thus concluded that the

officers’ “rough and abusive” conduct toward her—which

required her to seek medical treatment for pain and bruises—

might constitute excessive force. Id. at 645.

28 HOPSON V. ALEXANDER

Here, in contrast, Hopson alleges only that he was

“forcefully” removed from his vehicle and “forcefully”

handcuffed. There is no suggestion that the detectives

physically injured Hopson when they extracted him from his

car and arrested him. The government’s interest in

investigating and preventing a potential armed robbery was

also substantially greater than the interests at issue in Liberal

and Hansen.

No clearly established law prevented the officers from

acting quickly and with moderate force to ensure that

Hopson was detained without incident. We cannot conclude

that controlling authority has clearly established beyond

debate that the amount of force used during Hopson’s arrest

was objectively unreasonable.

C

Finally, we reject Hopson’s argument that the detectives

violated clearly established law in failing to identify

themselves as law enforcement officers. Hopson claims that

the use of force was unreasonable because he did not know

whether Alexander and Grissom were officers arresting him

or criminals robbing him. Courts do consider “whether

officers gave a warning before employing the force” as one

factor in the excessive force analysis. Glenn v. Washington

County, 673 F.3d 864, 876 (9th Cir. 2011); see also Nelson

v. City of Davis, 685 F.3d 867, 882–83 (9th Cir. 2012). But

the issue here is not so much Detective Alexander’s failure

to warn as his alleged failure immediately to identify himself

as a police officer. On that score, Hopson has not identified

clearly established law concerning (1) when an officer must

identify himself as such before using the degree of force used

here, (2) what form that identification should take, and (3)

how the lack of verbal identification is to be weighed against

HOPSON V. ALEXANDER 29

other considerations. Even pre-force warnings are only

required “when feasible, if the use of force may result in

serious injury.” Glenn, 673 F.3d at 876 (quotation omitted).

Hopson has identified three unpublished decisions from

this circuit and two cases from other circuits in which

officers’ failure to identify themselves impacted the

excessive force balancing analysis. See Vlasak v. Las Vegas

Metro. Police Dep’t, 213 F. App’x 512, 514 (9th Cir. 2006);

Bryan v. Las Vegas Metro. Police Dep’t, 349 F. App’x 132,

135 (9th Cir. 2009); Willis v. City of Fresno, 520 F. App’x

590, 591 (9th Cir. 2013); Sledd v. Lindsay, 102 F.3d 282,

288 (7th Cir. 1996); Yates v. City of Cleveland, 941 F.2d 444,

447 (6th Cir. 1991).

But even if these cases fully supported Hopson, this

authority by its nature likely does not qualify as “controlling

authority or a robust consensus of cases of persuasive

authority.” Wesby, 138 S. Ct. at 589–90 (quotations

omitted); see also Sorrels v. McKee, 290 F.3d 965, 971 (9th

Cir. 2002) (“[I]t will be a rare instance in which, absent any

published opinions on point or overwhelming obviousness

of illegality, we can conclude that the law was clearly

established on the basis of unpublished decisions only.”);

Rico v. Ducart, 980 F.3d 1292, 1301 (9th Cir. 2020) (holding

that a “single published opinion” with different facts,

“repeated in one unpublished disposition” and “combined

with the other three cases from our sister circuits . . . cannot

form the basis for a robust consensus” (quotation omitted)).

Regardless, the cases that Hopson cites are materially

distinguishable. These cases for the most part involved

suspects who resisted arrest, and so whether a suspect’s

resistance was reasonable—and whether the officers’

ensuing use of force was justified—turned on whether the

30 HOPSON V. ALEXANDER

defendant knew that the people whom they were resisting

were law enforcement officers. Moreover, even though an

officer’s failure to identify himself can be a relevant factor

in the Fourth Amendment “reasonableness” analysis, no one

factor is considered in a vacuum. Other factors, such as the

“type and amount of force inflicted,” are still relevant in

deciding whether the exercise of force was unreasonable.

See Felarca, 891 F.3d at 817 (quotation omitted). And in

the cases that Hopson cites, the type and amount of force

differed materially from that at issue here. See Bryan, 349

F. App’x at 135 (police shot the suspect); Yates, 941 F.2d at

445 (same); Sledd, 102 F.3d at 284 (same); Willis, 520 F.

App’x at 591 (police shot suspect, killing him); Vlasak, 213

F. App’x at 514 (police wrestled the suspect to the ground).

Under the circumstances of this case, precedent does not

clearly establish that the detectives’ alleged failure to

identify themselves as police officers made their use of force

excessive.

D

For its part, the dissent approaches the second prong of

the qualified immunity analysis by evaluating whether the

law clearly establishes a right to be free of excessive force

when Hopson was “merely conversing” with Jones and

“posed no threat to the officers or to members of the public.”

Dissent 47, 50. As we have explained above, that is not a

tenable view of the facts. As a consequence, the dissent’s

analysis under the “clearly established” prong is misdirected.

The dissent focuses our attention on Andrews v. City of

Henderson, 35 F.4th 710, 714 (9th Cir. 2022), and

Blankenhorn v. City of Orange, 485 F.3d 463, 478–80 (9th

Cir. 2007). Dissent at 45–48. It is telling that Hopson’s

learned counsel cited neither of these cases in briefing before

HOPSON V. ALEXANDER 31

us. These cases involve very different facts than this one and

certainly do not clearly establish that the officers here used

excessive force.

In Andrews, detectives watched a suspected robber pass

through a metal detector and an x-ray machine at the door to

a courthouse, so they “knew that he was not armed.” 35

F.4th at 713, 717. This knowledge “mitigated” the “risk of

violence” that the suspect posed, so “the government’s

interest in using substantial force was minimal.” Id. at 716–

17. In addition, the suspect “was not exhibiting any

aggressive behavior, and there were no bystanders within his

close proximity when he exited the courthouse.” Id. at 717.

The officers nonetheless “lunged at” the suspect and

“tackled him to the ground,” “result[ing] in an acetabular

fracture of [the suspect’s] hip, which required two

surgeries.” Id. at 714.

Unlike in Andrews, the officers here did not know that

Hopson was unarmed. And, in fact, he was armed. Andrews

also involved someone suspected of a past crime, whereas

Detective Alexander perceived Hopson as about to commit

one. Nothing about Andrews clearly established whether the

officers acted unlawfully “in the particular circumstances”

they faced in the gas station parking lot. Wesby, 138 S. Ct.

at 590 (quotations omitted).

In Blankenhorn, meanwhile, police officers saw a man

in a crowd at the mall, and the officers recalled that mall

security had previously banned him from the premises. 485

F.3d at 468. Based on this suspicion of “misdemeanor

trespass,” the officers “gang-tackled” the man, punched him

several times, and placed hobble restraints on his ankles. Id.

at 478. We held that a jury could find the officers’ conduct

unreasonable “under th[e] circumstances,” since “the

32 HOPSON V. ALEXANDER

severity of the alleged crime, misdemeanor trespass, was

minimal.” Id. Blankenhorn does not “squarely govern[]”

the case at hand, Brosseau, 543 U.S. at 201, in which the

detectives not unreasonably suspected Hopson of engaging

in a much more serious crime.

The dissent also suggests that clearly established law

prohibited the force used here because there are factual

distinctions between this case and some of the cases we have

cited in our analysis, such as Wesby. Dissent 48–50. But for

the most part, the cases we have relied upon, Wesby

included, pertain to the standards that govern the qualified

immunity analysis or the Terry framework that, in this case,

presages it. The dissent’s mode of analysis is at odds with

our long-stated rule “[i]t is the plaintiff who ‘bears the

burden of showing that the rights allegedly violated were

clearly established.’” Shafer v. County of Santa Barbara,

868 F.3d 1110, 1118 (9th Cir. 2017) (quoting LSO, Ltd. v.

Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000)). There is no

analogous burden on § 1983 defendants to find factually on-

point cases clearly establishing the lawfulness of an officer’s

actions. Nor must § 1983 defendants come forward with

precedent showing that the unlawfulness of their conduct

was not clearly established.

IV

We appreciate that both sides have different perspectives

about the events giving rise to this case. In Hopson’s view,

although he may not have been permitted to possess a gun,

the detectives acted rashly in assuming that he and Jones

were planning an armed robbery and aggressively

confronting them in the way they did. In the detectives’

view, their conduct was not only constitutionally reasonable

but commendable, as they presciently surmised that Hopson

HOPSON V. ALEXANDER 33

was armed. We of course do not know what would have

happened next absent the officers’ intervention.

The parties’ competing perspectives underscore the

competing considerations at stake when law enforcement

officers approach a suspect. Police must be cautious not to

point guns at people in haste when the circumstances do not

warrant it. Such conduct can lead to accidents or violent

escalations that might not otherwise have occurred. It can

also under our precedents produce harm of a constitutional

magnitude, even when no physical injury results. At the

same time, police officers must have some latitude in relying

on their judgment and experience to anticipate criminal

conduct that may be about to occur. Officers are allowed

and expected to be proactive. And when they have a basis

for intervening, they are not inevitably required to use only

the most minimal force and hope for the best.

Though the proper balance between individual rights and

public safety is a worthy topic of public discourse, our role

here was a limited one. The doctrine of qualified immunity

requires that we not hold police officers to standards that fail

to appreciate the real-time nature of their decisions and the

sometimes ill-defined nature of Fourth Amendment law.

Our more circumscribed task in this case—and, indeed, our

only necessary task—was to determine whether any

constitutional violation was clearly established on these

facts. Because it was not, the judgment of the district court

is reversed, and the case is remanded for proceedings

consistent with this opinion. The parties shall bear their own

costs on appeal.

REVERSED AND REMANDED.

34 HOPSON V. ALEXANDER

RAWLINSON, Circuit Judge, dissenting:

I respectfully, but emphatically dissent. Viewing the

facts in the light most favorable to the plaintiff, as we must,

the conclusion is inescapable that DeJuan Hopson was

subjected to excessive force and that the officers involved

were not entitled to qualified immunity for that use of

excessive force. See Ames v. King Cnty., 846 F.3d 340, 347

(9th Cir. 2017).

I start with the facts, taken in the light most favorable to

Mr. Hopson. On January 25, 2018, before Mr. Hopson

arrived on the scene, Detective Alexander observed an

individual named Tommy Jones back into a parking spot,

“crane his neck” and “nervously” look around. Detective

Alexander was in an unmarked vehicle and was not wearing

a uniform. Jones changed parking spots several times, each

time “turn[ing] his body 180 degrees in the vehicle to get a

good look at his surroundings.” Although Jones never exited

his vehicle and no weapon was seen, Detective Alexander

believed that Jones intended to commit armed robbery of the

gas station.

After approximately fifteen minutes Mr. Hopson arrived

at the gas station and parked next to Jones. Jones exited his

vehicle and entered Hopson’s vehicle, where the two began

to converse.1

1

The majority opinion states that Detective Alexander observed Jones

and Mr. Hopson “exchange items,” Majority Opinion, p. 6, but this

observation does not construe the facts in the light most favorable to Mr.

Hopson, who asserted that the two were engaged in a private

conversation. And in view of Mr. Hopson’s assertion that the two were

only engaged in conversation, Detective Alexander’s statement that the

HOPSON V. ALEXANDER 35

According to Detective Alexander, once Mr. Hopson

arrived on the scene, his suspicion morphed from a potential

armed robbery to the more generic “engag[ing] in criminal

activity.” Detective Alexander called for backup and,

construing the facts in the light most favorable to Mr.

Hopson, a total of six officers converged on the scene, with

weapons drawn. According to Mr. Hopson, Detective

Alexander approached him “at gunpoint” and without any

warning, “provocation or resistance” on Mr. Hopson’s part,

his driver’s side door was opened and Detective Alexander

“placed his hand on [Mr. Hopson’s] left arm, grabbing it

with enough force to put [Mr. Hopson] in a state of shock

and make [him] think that [he] was being robbed.” Mr.

Hopson saw Officer Grissom “standing right in front of [Mr.

Hopson’s] vehicle with his gun pointed directly at [Mr.

Hopson].” Officer Grissom “forcefully placed [Mr. Hopson]

in handcuff[s] and verbally dared [Mr. Hopson] to make a

move in resistance to his actions.”

To summarize, taking the facts in the light most

favorable to Mr. Hopson: Mr. Hopson was sitting in his

vehicle conversing with another individual (Jones) when he

was forcefully yanked from his vehicle by his arm, forcefully

handcuffed, and confronted by six police officers, all of

whom had guns pointed at him, and one of whom “dared

[Mr. Hopson] to make a move.” Prior to being forcefully

two “exchange[d] items” is not undisputed. The same is true for the

detective’s statement that Jones retrieved something from his vehicle and

returned to Hopson’s vehicle. At best, this presents a factual dispute that

we may not resolve in this interlocutory appeal. See Cunningham v. City

of Wenatchee, 345 F.3d 802, 806-07 (9th Cir. 2003) (explaining that

“[i]nterlocutory appeals are not available when the appellate court is

required to resolve a fact-related dispute” (citation and internal quotation

marks omitted) (emphasis in the original).

36 HOPSON V. ALEXANDER

yanked from his vehicle by his arm, Mr. Hopson had no

knowledge that police officers were present. The officers

did not identify themselves in any way or provide any kind

of warning to Mr. Hopson. The criminal charges brought

against Mr. Hopson were dismissed for lack of probable

cause.

The majority discusses in some detail Mr. Hopson’s

criminal history and the results of a search of the vehicle

after Mr. Hopson was detained. See Majority Opinion, p. 7.

However, these facts have no place in our qualified

immunity analysis, which focuses on the facts in existence

when the force was used. See Rice v. Morehouse, 989 F.3d

1112, 1121 (9th Cir. 2021) (explaining that “[i]n 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”)

(citation and internal quotation marks omitted) (emphasis

added); see also Shafer v. County of Santa Barbara, 868

F.3d 1110, 1116 (9th Cir. 2017) (same). Because the officers

were not “confronted” by the facts discovered after the use

of force, those facts cannot justify the amount of force used.

See id.

The majority also relies on “the detectives’ suspicion of

a planned armed robbery” to support the amount of force

used. Majority Opinion, p. 13. There are two problems with

this theory. The first is that suspicion alone does not justify

the use of excessive force. See Shafer, 868 F.3d at 1116

(observing that in excessive force cases, the question of

whether officers’ actions are objectively reasonable is

decided “without regard to their underlying intent or

motivation”) (citation omitted). Suspicion justifies an

investigatory stop, not excessive force. See Terry v. Ohio,

392 U.S. 1, 15 (1968) (approving “legitimate and restrained

HOPSON V. ALEXANDER 37

investigative conduct”) (emphasis added); see also id. at 6-7

(noting that the officer “approach[ed] the three men,

identified himself as a police officer and asked for their

names,”). In Terry, it was only after the suspects were

nonresponsive to the officer’s question that he “grabbed . . .

Terry, spun him around . . . and patted down the outside of

[Terry’s] clothing.” Id. at 7. In this case, Detective

Alexander never identified himself as a police officer and

never asked a question before proceeding to the use of a

substantial degree of force, including guns. Terry does not

support these actions. See id. at 6-7.

The second problem with this theory is that after Mr.

Hopson arrived on the scene, Detective Alexander no longer

expressed a suspicion that an armed robbery was about to

occur. Rather, he stated in his declaration that “it was clear”

that “Jones and Hopson were engaged in criminal activity.”

(emphasis added). Detective Alexander made absolutely no

reference to armed robbery at this point. The majority posits

that “[i]n context, it is clear that the ‘criminal activity’ to

which Detective Alexander was referring was the only

criminal activity he had mentioned in his declaration; the

planning of an armed robbery.” Majority Opinion, pp. 15-

16. But that inference is far from clear, especially in view of

the majority’s reference to Detective Alexander’s belief that

Mr. Hopson and Jones “exchange[d] items” and to “the

marijuana odor coming from the car.” Majority Opinion, pp.

6-7. In context, it is equally “clear” that Detective Alexander

suspected a crime involving marijuana. See id. At best, a

question of fact is presented, which cannot be resolved in

this interlocutory appeal. See Cunningham, 345 F.3d at 806-

07. And the record confirms that the crime suspected by

Detective Alexander after Mr. Hopson’s arrival was indeed

38 HOPSON V. ALEXANDER

unspecified. Otherwise, there would be no need to resort to

context and inference.2

The majority also notes that “[n]othing in Detective

Alexander’s declaration indicates that he no longer believed

an armed robbery was in the works or that his suspicions had

abated.” Majority Opinion, p. 16. But the converse is also

true: Nothing in Detective Alexander’s declaration indicates

that he continued to believe an armed robbery was in the

works or that his suspicions regarding a pending armed

robbery continued.

At bottom, Mr. Hopson and Jones posed no “immediate

threat” to the public, when the facts are construed in the light

most favorable to Mr. Hopson. Felarca v. Birgeneau, 891

F.3d 809, 817 (9th Cir. 2018) (citation omitted) (emphasis

added). After all, if the threat were immediate, Detective

Alexander would not have had time to call for backup and

wait for the backup to arrive. And although officers are not

prevented from “using the element of surprise,” Majority

Opinion, p. 18, officers may not use the element of surprise

to employ excessive force. See Ames, 846 F.3d at 348

(emphasizing that “[u]nder the Fourth Amendment, officers

may use only such force as is objectively reasonable under

the circumstances”) (citation and internal quotation marks

omitted).

2

The majority makes the point that Detective Alexander only noticed the

marijuana smell once he confronted Mr. Hopson. See Majority Opinion,

p. 16, n.2. But the “exchange [of] items” and “the marijuana odor” are

part of the “context” on which the majority opinion relies. The

declaration said what it said, and the fact that the majority and the dissent

are using context to fill in the gaps solidifies the existence of a factual

dispute that cannot be resolved at this stage of the proceedings. See

Cunningham, 345 F.3d at 806-07.

HOPSON V. ALEXANDER 39

I readily acknowledge that when reviewing claims of

excessive force, we must remain mindful that police officers

are often presented with situations where split-second

decisions must be made “in circumstances that are tense,

uncertain, and rapidly evolving.” Graham v. Connor, 490

U.S. 386, 397 (1989). However, no split-second

decisionmaking was required under the circumstances of this

case, when Mr. Hopson and Jones were completely unaware

of the presence of the officers. In addition, Detective

Alexander had time to call for backup and wait for their

arrival, a clear indication that no urgency existed.

My esteemed colleagues in the majority accuse me of

misapprehending the record. See Majority Opinion, p. 14.

Not so. As governing precedent dictates, I construe the

record in favor of Mr. Hopson’s version of events rather then

in favor of the officer’s version of events. See Cunningham,

345 F.3d at 807-08. For example, the majority takes issue

with my repeating Mr. Hopson’s statement that he and his

friend were sitting in a car conversing, in view of Detective

Alexander’s statement that they were doing more than

conversing. But Detective Alexander’s statement creates a

factual dispute, which precludes resolution of the qualified

immunity question in this limited interlocutory appeal. See

id. at 806-07.3

3

The existence of a dispute is made even more apparent by the majority’s

statement that “Hopson has not contested that he and Jones exchanged

items or that Jones went back to his vehicle to exchange something.”

Majority Opinion, p. 15. In the qualified immunity inquiry, Hopson has

no burden to “contest” any version of the facts advanced by the officers.

See Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003). Rather,

all facts are construed in his favor. See id. at 1184 (concluding that the

district court “failed to view the evidence in the light most favorable to

40 HOPSON V. ALEXANDER

When analyzing claims of excessive force under

Graham, we consider the following factors:

1. “[T]he severity of the crime at issue”;

2. “[W]hether the suspect poses an immediate threat

to the safety of the officers or others”;

3. “[W]hether [the suspect] is actively resisting

arrest or attempting to evade arrest by flight.”

Felarca, 891 F.3d at 817 (quoting Graham, 490 U.S. at 396)

(emphasis added).

“We may also consider the availability of less intrusive

alternatives to the force employed and whether warnings

were given.” Id. (citation omitted).

Of the factors we are to consider in assessing whether the

force used by the officers was excessive “the most important

[factor] is whether the suspect posed an immediate threat to

the safety of the officers or others.” Id. (citation omitted)

(emphasis added).

Application of these factors to the case before us leads to

the inescapable conclusion that the force used against Mr.

Hopson was excessive. Starting with the most important

factor, and viewing the evidence in the light most favorable

to Mr. Hopson, the record does not contain facts indicating

the existence of an immediate threat to the officers or to

anyone else. See id. Mr. Hopson and Jones were sitting in

a car conversing. No weapons were visible and neither

occupant of the vehicle resisted arrest or attempted to

the plaintiff” when it relied on “uncontradicted” declarations from the

officers to grant qualified immunity) (citation omitted).

HOPSON V. ALEXANDER 41

impede the officers in any way. Under these facts, this “most

important” factor weighs in favor of a finding of excessive

force. Id.; see also Gravelet-Blondin v. Shelton, 728 F.3d

1086, 1091-92 (9th Cir. 2013) (weighing factors and

concluding that excessive force was used after construing the

facts in favor of the plaintiff).

Turning to the other factors viewed in the light most

favorable to Mr. Hopson, the conclusion that the force used

was excessive becomes even clearer. At the time Detective

Alexander forcefully yanked Mr. Hopson from his vehicle,

the detective had articulated that he only suspected Mr.

Hopson and Jones of being “engaged in criminal activity,”4

without any greater specificity. With no indication in the

record that a crime involving a potential use of force was

being committed or threatened, this factor weighs in favor of

a finding that excessive force was used.5 See id.

Viewing the evidence in the light most favorable to Mr.

Hopson, it is indisputable that neither Mr. Hopson nor Jones

“actively” resisted arrest or “attempt[ed] to evade arrest by

flight.” Felarca, 891 F.3d at 817 (citation omitted).

According to Mr. Hopson, one of the officers “dared [Mr.

4

Before Mr. Hopson arrived, Detective Alexander articulated his belief

that Jones (not Mr. Hopson) was preparing to commit an armed robbery

of the gas station. However, this belief was not repeated after Mr.

Hopson’s arrival.

5

It is questionable whether Detective Alexander’s unsubstantiated

speculation that Mr. Hopson and his companion were “engaged in

criminal activity” is even a fact for purposes of our analysis. See Illinois

v. Wardlow, 528 U.S. 119, 123-24 (2000) (emphasizing that “[t]he

officer must be able to articulate more than an inchoate and

unparticularized suspicion or hunch of criminal activity”) (quoting

Terry, 392 U.S. at 27) (internal quotation marks omitted).

42 HOPSON V. ALEXANDER

Hopson] to make a move in resistance to [the officer’s]

actions.” This factor weighs strongly in favor of a

determination that excessive force was used. See Gravelet-

Blondin, 728 F.3d at 1091-92.

Finally, we may consider “the availability of less

intrusive alternatives to the force employed and whether

warnings were given.” Felarca, 891 F.3d at 817 (citation

omitted). It is undisputed that no warnings were given, and

the existence of a less intrusive alternative is embodied in

the seminal Terry case, which authorizes officers to conduct

an investigatory stop when there is a reasonable suspicion

that criminal activity is afoot, but no probable cause to

support a conclusion that a specific crime has been or is

about to be committed. See 392 U.S. at 20 (clarifying that

the court was not addressing whether probable cause

existed). The officers do not argue that probable cause

existed to detain Mr. Hopson. But they, unfortunately,

skipped the investigatory stop, which would have been

justified, and proceeded to detention and the use of force,

which were not justified under the facts viewed in the light

most favorable to Mr. Hopson. Because no warnings were

given before Mr. Hopson was forcefully yanked from his

vehicle at gunpoint and because a Terry stop was a less

intrusive alternative available to the officers, this factor

supports the conclusion that the officers used excessive

force. See Andrews v. City of Henderson, 35 F.4th 710, 717-

18 (9th Cir. 2022).

So every factor that we and the Supreme Court have

articulated to assist in our determination of whether

excessive force was used supports the inescapable

conclusion in this case that the force used against Mr.

Hopson was indeed excessive.

HOPSON V. ALEXANDER 43

I am well aware that the factors set forth by our court and

the Supreme Court should not be applied in a mechanical

manner, and I have not done so. Rather, I applied the factors

to the specific facts of this case, construed in the light most

favorable to Mr. Hopson. As mentioned previously, there

was no split-second decisionmaking that would temper our

application of the applicable factors, or any other exigent

circumstances that would ameliorate the use of excessive

force in this case. See e.g., Ames, 846 F.3d at 349

(describing “a rapidly escalating situation”).6

I am not persuaded that cases discussing Terry and its

progeny may be substituted for application of the factors set

forth by our court and the Supreme Court to assess whether

the amount of force used in this case was excessive. Even

so, those cases contain facts that are nowhere close to the

facts of this case, where force was used against Mr. Hopson

and Jones when they were merely conversing in a vehicle.

For example, in Wardlow, the Supreme Court addressed

a “stop and frisk” situation, not a circumstance involving a

suspect subjected to force, including the pointing of

weapons. See 528 U.S. at 121 (noting that the officer

“conducted a patdown search for weapons”). Indeed the

Supreme Court cited Terry, rather than excessive force cases

in concluding that “an officer may, consistent with the

Fourth Amendment conduct a brief, investigatory stop when

the officer has a reasonable, articulable suspicion that

criminal activity is afoot.” Id. at 123 (citing Terry, 392 U.S.

at 30) (emphasis added). Nothing in this language supports

the level of force used against Mr. Hopson.

6

Tellingly, the majority never applies these factors to the facts of this

case.

44 HOPSON V. ALEXANDER

Under Wardlow and Terry, Detective Alexander and the

other officers were authorized to conduct an investigation.

But that is not what they did. They skipped past the

investigation and proceeded directly to the use of force

including the pointing of weapons. See Wardlow, 528 U.S.

at 121 (noting that the officer “conducted a protective

patdown search for weapons”).7

Because Detective Alexander and the other officers

proceeded directly to the use of force, we must apply the

analysis set forth by the Supreme Court and applied in this

Circuit to determine if the force used was excessive. See

Graham, 490 U.S. at 396; see also Felarca, 891 F.3d at 817.

Having done so, and with all applicable factors weighing in

favor of a conclusion that excessive force was used, I

proceed to a discussion of whether the right to be free of the

use of excessive force is clearly established when there is no

probable cause to believe a crime has been committed, and

the suspect poses no immediate threat to himself, the

officers, or members of the public. In this circumstance, our

precedent clearly establishes that the use of excessive force

violates the individual’s constitutional rights.

In making the determination of whether a principle of

law is clearly established, we look to cases with similar (not

identical) facts. See District of Columbia v. Wesby, 138 S.

Ct. 577, 590 (2018) (“stress[ing] the need to identify a case

where an officer act[ed] under similar circumstances”)

(citations and internal quotation marks omitted) (emphasis

added). Contrary to the majority’s reading of our precedent,

7

The majority’s continued reliance on Terry to justify a non-Terry

encounter finds no support in excessive force precedent. See e.g.

Felarca, 891 F.3d at 817 (setting forth the factors to be weighed in an

excessive force analysis); see also Graham, 490 U.S. at 396 (same).

HOPSON V. ALEXANDER 45

I view our precedent as clearly establishing use of force as

excessive when officers confront a suspect that presents no

threat to the safety of the officers or to the safety of the

public.

Our recent decision in Andrews affirmed a similar denial

of a motion for summary judgment predicated on qualified

immunity. See 35 F.4th at 713. In that case, detectives had

probable cause to arrest Andrews for armed robberies. See

id. They followed Andrews to the municipal courthouse.

See id. Because Andrews was required to go through a metal

detector before entering the courthouse, detectives were

aware that he was unarmed. See id. When Andrews

reemerged from the courthouse, two detectives slowly

approached him without identifying themselves. See id.

With no provocation or warning, one of the detectives

“lunged and tackled [Andrews] to the ground.” Id. at 714.

The second detective “landed on top” of Andrews and the

first detective, remaining there until Andrews was

handcuffed. Id.

Even though the officers had probable cause to arrest

Andrews for armed robbery, we concluded that “the

government’s interest in using substantial force was

minimal.” Id. at 716. We reasoned that we must consider

“the full context that the officers faced, including that

Andrews was not engaged in any violent or nonviolent

criminal conduct when he was tackled without warning by

the detectives.” Id. at 716-17. We also noted that the

evidence in the record did not indicate that Andrews

“otherwise posed a threat to the officers or members of the

public.” Id. at 717. We noted that Andrews “was not

exhibiting any aggressive behavior, and there were no

bystanders within his close proximity.” Id. “And because

Andrews did not know the detectives’ identities before they

46 HOPSON V. ALEXANDER

tackled him, there is no dispute that he was not resisting

arrest or attempting to flee.” Id. Given these facts, we

concluded that “the nature of Andrews’s suspected crime

[armed robbery] [did] not establish a strong governmental

interest in using significant physical force against him.” Id.

We emphasized that “the serious nature of a suspected crime

does not necessarily give rise to a strong governmental

interest in the use of significant physical force.” Id. (citation

omitted) (emphasis in the original). Rather, “[o]ur precedent

requires that we focus on the immediate threat of harm. That

is, we consider the danger a suspect poses at the time force

is applied.” Id. (citations and internal quotation marks

omitted) (emphases in the original). We reiterated that

“although Andrews was suspected of a serious crime,

viewing the evidence in his favor, . . . any immediate threat

to safety was minimal, [and] the nature of the crime at issue

provide[d] little, if any, basis for the officers’ use of physical

force.” Id. at 717-18 (citation and internal quotation marks

omitted).

We then proceeded to our discussion of whether the

constitutional right asserted was clearly established. See id.

at 718. We cited our prior decision of Blankenhorn v. City

of Orange, 485 F.3d 463 (9th Cir. 2007) and other similar

cases in concluding that the detectives involved in the

“surprise takedown” of Andrews had “ample notice” that

their actions “violated Andrews’s Fourth Amendment

rights.” Id. at 720. We determined that “it was clearly

established before the events of this case [in 2017] that the

Fourth Amendment prohibits multiple officers from

physically tackling a relatively calm suspect without

providing any warning where the suspect is not posing an

immediate danger to anyone, resisting arrest, or trying to flee

HOPSON V. ALEXANDER 47

unless the officers first attempt a less intrusive means of

arrest.” Id. (citation and internal quotation marks omitted).

The similarity between the facts of this appeal and those

in Andrews is undeniable. If anything, the facts in favor of

qualified immunity were stronger in Andrews because

officers had probable cause to arrest Andrews for armed

robbery. See id. at 713. In contrast here, although Detective

Alexander expressed a “belief” that Jones was about to

engage in armed robbery, by the time Mr. Hopson arrived on

the scene, the “belief” had shifted to the observation that the

two individuals “were engaged in [some unspecified]

criminal activity,” and nothing close to probable cause

existed.

As in Andrews, viewed in the light most favorable to Mr.

Hopson, he posed no threat to the officers or to members of

the public. See id. at 717. Mr. Hopson “was not exhibiting

any aggressive behavior,” and “there is no dispute that he

was not resisting arrest or attempting to flee.” Id. Thus, as

in Andrews, at the time the force [was] applied, id., Mr.

Hopson did not pose an “immediate threat of harm.” Id.

(emphases in the original). Mr. Hopson was yanked from

his car forcefully and at gunpoint, and forcefully handcuffed

without any advance warning. As in Andrews, our prior

precedent gave “ample notice” that this “surprise takedown”

violated Mr. Hopson’s right to be free from such significant

force under these circumstances. Id. at 720.

The Blankenhorn case cited in Andrews was deemed

sufficiently similar to the facts in Andrews because “[in]

both cases, the suspects posed no immediate threat to the

officers or public safety when they were arrested.” Id. at 719

(emphasis in the original). And, we noted in Andrews,

“other than the nature of the suspected crime, the facts of this

48 HOPSON V. ALEXANDER

case [Andrews] are either analogous to or more favorable to

Andrews than the facts in Blankenhorn.” Id. In turn, taking

the facts in the light most favorable to Hopson, Hopson’s

case is even more favorable. The officers had no probable

cause to believe Hopson had committed any crime, there was

no immediate threat of violence to the officers or to the

public, and Hopson did not resist in any way, or attempt to

flee. Under these facts, it was clearly established under

Blankenhorn and Andrews that the “Fourth Amendment

prohibits” use of anything other than “non-trivial force”

without warning when “the suspect is not posing an

immediate danger to anyone, resisting arrest, or trying to flee

unless the officers first attempt a less intrusive means of

arrest.” Id. at 719-20.

Our decision in Alexander v. County of Los Angeles, 64

F.3d 1315 (9th Cir. 1995) does not support a grant of

qualified immunity in this case. Indeed, the portion of the

decision addressing excessive force reversed summary

judgment in favor of the officers. See id. at 1323. We

concluded that “it cannot be said as a matter of law that the

officers’ use of force was reasonable” when the suspect “was

slammed against a car, his legs kicked apart, and . . . he was

carried and pushed into the back of the police car.” Id. at

1322-23. Neither does the Supreme Court’s decision in

Wesby support a determination of qualified immunity for the

officers who used excessive force against Hopson. For

starters, Wesby involved a claim of false arrest rather than

one of excessive force. See 138 S. Ct. at 584. Consequently,

the dispositive issue was whether the officers had probable

cause to arrest partygoers who were partying in a house they

had no permission to enter. See id. at 583-84. After

concluding that the officers had “probable cause to believe

the partygoers knew they did not have permission to be in

HOPSON V. ALEXANDER 49

the house,” id. at 588, the Supreme Court reversed the D.C.

Circuit’s denial of qualified immunity. See id. at 593. In

doing so, the Supreme Court emphasized “the circumstances

with which the officers were confronted,” and the “lack of

similar circumstances” in existing cases addressing probable

cause. Id. at 591 (citations and alteration omitted).

The Supreme Court observed that “[t]he officers found a

group of people in a house that the neighbors had identified

as vacant, that appeared to be vacant, and that the partygoers

were treating as vacant. The group scattered, and some hid,

at the sight of law enforcement. Their explanations for being

at the house were full of holes. The source of their claimed

invitation admitted that she had no right to be in that house,

and the owner confirmed that fact.” Id. In light of these

damning facts, the Supreme Court concluded that even if

“the officers lacked actual probable cause to arrest the

partygoers, the officers are entitled to qualified immunity

because they reasonably but mistakenly concluded that

probable cause was present.” Id. (citation, alterations and

internal quotation marks omitted). No similar argument can

be made for the officers who used force against Hopson

because they did not conclude, mistakenly or otherwise, that

probable cause existed to arrest Hopson. And no similar

damning facts informed the decision to use force against

Hopson because, unlike the officers in Wesby, the officers

who used force against Hopson never conducted any

investigation before proceeding to yank him from his vehicle

at gunpoint and forcefully handcuff him. In sum, Wesby

does not present “similar circumstances,” id., and therefore

provides no basis for a grant of qualified immunity to the

officers who used excessive force against Hopson. See id.

There simply are no “similar circumstances” between the

facts and circumstances in the Wesby case and the facts and

50 HOPSON V. ALEXANDER

circumstances leading to the use of excessive force against

Hopson.

The same lack of similar circumstances exists for the

case of Demarest v. City of Vallejo, 44 F.4th 1209, 1213,

1225 (9th Cir. 2022) (addressing whether an officer

“violated the Fourth Amendment by using excessive force in

effectuating [an] arrest” at a sobriety checkpoint after

Demarest “declined an officer’s repeated demands to show

his license.”).

Finally, the majority mentions that our precedent

denying qualified immunity mostly involves cases where the

force used by the officers was “gratuitous or violent.”

Majority Opinion, p. 26. I agree. And under this standard,

the officers who used force against Hobson are not entitled

to qualified immunity because the force used against Hopson

was both gratuitous and violent. See Andrews, 35 F.4th at

720. In sum, under the facts of this case, viewed in the light

most favorable to Hopson, the officers violated clearly

established law when they forcefully yanked Hopson from

his vehicle at gunpoint without warning, and forcefully

handcuffed him, when he was merely conversing with Jones

and posed no immediate threat to the officers or to the public.

See id. Because the officers who used this gratuitous and

violent excessive force against Hopson were not entitled to

qualified immunity, I would affirm the district court’s

judgment denying qualified immunity.