Diana Isayeva v. Sean Barry , 872 F.3d 938 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIANA ISAYEVA, No. 15-17065
Plaintiff-Appellee,
D.C. No.
v. 2:13-cv-02015-
KJM-KJN
SACRAMENTO SHERIFF’S
DEPARTMENT, Unknown Deputies;
COUNTY OF SACRAMENTO, OPINION
Defendants,
and
SEAN BARRY, Deputy Officer,
Sacramento County Sheriff’s
Department,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted September 12, 2016
San Francisco, California
Filed October 2, 2017
2 ISAYEVA V. BARRY
Before: Ronald M. Gould and Marsha S. Berzon, Circuit
Judges, and William K. Sessions III, * District Judge.
Opinion by Judge Gould
SUMMARY **
Civil Rights
The panel reversed the district court’s order denying
qualified immunity and remanded in an action brought
pursuant to 42 U.S.C. § 1983 and state law alleging that
Sacramento Sheriff’s officer Sean Barry used excessive
force when he tased and then fatally shot Paul Tereschenko.
The panel first held that it had jurisdiction over the
interlocutory appeal to determine whether, assuming the
facts most favorable to the plaintiff (Tereschenko’s wife),
Deputy Barry violated clearly established law when he tased
and then fatally shot Tereschenko.
The panel held that viewing the facts in the light most
favorable to the plaintiff, Tereschenko did not have a clearly
established right violated by Deputy Barry’s use of the taser.
Deputy Barry was therefore entitled to qualified immunity
for the tasing. The panel noted that Tereschenko, at more
than six-feet-tall and 250-plus-pounds was a very big man
The Honorable William K. Sessions III, United States District
*
Judge for the District of Vermont, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ISAYEVA V. BARRY 3
who also was likely under the influence of drugs and was
violently resisting arrest. The panel further noted that the
Deputy Barry only tased Tereschenko once in the less-
incapacitating drive-stun mode.
The panel held that there were no existing precedents
suggesting that Deputy Barry’s use of deadly force violated
any clearly established right held by Tereschenko, and
therefore Deputy Barry was entitled to qualified immunity
for the fatal shooting. Construing the facts in plaintiff’s
favor, the panel determined that there were strong reasons to
believe that Tereschenko posed a risk of death or serious
injury to the officers or to the family members in the home.
Tereschenko clearly had the upper hand in a hand fight with
the officers. After being tased—which failed to immobilize
him—Tereschenko had succeeded in freeing both of his
arms, in pushing a deputy and, and in pummeling Deputy
Barry to the point that he began to pass out. The panel held
that even under the view of the facts most favorable to
plaintiff, Tereschenko was winning the fight with the
deputies, and was doing so quickly, highlighting the risks to
Deputy Barry. Under the circumstances, Tereschenko held
no clearly established right not to be shot by Deputy Barry.
The panel remanded for consideration of state law claims.
4 ISAYEVA V. BARRY
COUNSEL
Wendy Motooka (argued) and Robert L. Chalfant, Cregger
& Chalfant LLP, Sacramento, California, for Defendants-
Appellants.
Dale K. Galipo (argued) and Eric Valenzuela, Law Offices
of Dale K. Galipo, Woodland Hills, California; Peter
Goldstein, Law Office of Peter Goldstein, Culver City,
California; for Plaintiff-Appellee.
OPINION
GOULD, Circuit Judge:
On February 18, 2013, Sacramento County Sheriff’s
Deputy Sean Barry tased and fatally shot Paul Tereschenko
inside the home of Tereschenko’s father-in-law.
Tereschenko’s wife, Diana Isayeva, brought this action
under 42 U.S.C. § 1983 alleging, among other claims,
excessive force in violation of the Fourth Amendment. The
district court denied summary judgment for Deputy Barry.
We reverse and remand, holding that Deputy Barry is
entitled to qualified immunity.
I
The facts of this case are tragic. They involve a
combination of mental illness, drug abuse, and domestic
conflict that led to a loss of life in a confrontation between
Tereschenko and police officers. They also show the
dangers that arise when resistance and a brawl require
officers to make split-second decisions.
ISAYEVA V. BARRY 5
On February 18, 2013, Deputy Barry and Sacramento
County Sherriff’s Deputy Corbin Gray responded to two
family disturbance calls from the same address in
Sacramento, California. The first call came from
Tereschenko’s brother-in-law, who explained that
Tereschenko had moved into the home about a month earlier,
that he suffered from mental-health issues including hearing
voices in his head, and that he was now refusing the family’s
requests to move out. The second call came from
Tereschenko himself, who complained about being told to
leave the house. The deputies’ dispatch readout described
Tereschenko as “rambling” and “talking about random
things,” but stated that no weapons were involved in the
dispute. The deputies each carried a taser and a firearm, and
Deputy Barry also carried pepper spray.
Upon arrival, the deputies met two family members
outside the home, one of whom was Tereschenko’s brother-
in-law, the person who first called 911. The family members
told the deputies that Tereschenko was rambling and
speaking nonsense; that he was mentally ill or possibly was
mentally ill; that they believed he was under the influence of
methamphetamine; and that they did not think that he had
any weapons. They requested that the deputies remove
Tereschenko from the house. At his deposition, Deputy
Barry recalled that the family members told him
Tereschenko had asked them to kill his wife, Isayeva. But
during an interview on the day of the incident, Deputy Barry
explained it differently: He said that the family members
outside the house said Tereschenko had told them about
hearing voices in his head, and that the voices talked about
family members killing Isayeva—not that Tereschenko
urged the family members to kill his wife.
6 ISAYEVA V. BARRY
The deputies entered the house, and, once inside, spoke
with Isayeva’s father. According to Deputy Barry, the father
said something along the lines that Tereschenko “had stated
he wanted to kill [Isayeva].”
The deputies went into a nearby bedroom, where they
found Tereschenko and Isayeva. Tereschenko was large,
standing over 6 feet tall and weighing more than 250 pounds.
His skin was pockmarked, he was sweating profusely, he
spoke quickly, and he moved his hands rapidly. The
deputies testified that these physiological symptoms
indicated drug use, particularly methamphetamine.
The deputies spoke with Tereschenko for about seven to
ten minutes. During the conversation, Tereschenko told the
deputies that he was schizophrenic and had been in a mental
institution. Rambling, he talked about Ukrainian money and
asked that he be taken to an embassy or consulate. He asked
the deputies to “[p]lease help [him],” and said “I don’t know
what to do.” The deputies repeatedly told Tereschenko to sit
down and to calm down. In response, he would sit but then
stand back up again. Eventually, Tereschenko stayed seated
while the deputies questioned him.
Deputy Barry asked Isayeva whether Tereschenko used
any drugs or was diagnosed with any mental illnesses. She
said no and shook her head. Deputy Gray left the room
briefly to ask a family member when Tereschenko made his
comments about hearing voices and killing Isayeva, and
confirmed that it was earlier that same day. While Deputy
Gray was out of the room, Tereschenko began speaking
again and, in Deputy Barry’s words, “started to become
agitated a little bit.” At Deputy Barry’s request, Isayeva
stepped out of the room, though she remained by a partially
open door where she could still hear and to some extent see
what was happening inside the bedroom. Once Isayeva left,
ISAYEVA V. BARRY 7
Tereschenko got down on his knees and, according to
Deputy Barry, said “you’re gonna have to shoot or kill me.”
The deputies decided to detain Tereschenko pursuant to
California Welfare Institutions Code § 5150. This statute
allows peace officers in California upon probable cause to
take into custody for evaluation or treatment, for up to
72 hours, a person who is a danger to himself or others due
to a mental health disorder. See Cal. Welf. & Inst. Code
§ 5150(a).
Deputy Barry told Tereschenko that he was not being
arrested, only detained to be taken to a hospital. He then
asked Tereschenko to turn around and face the wall.
According to Deputy Barry, Tereschenko said “no, no,” and
stepped forward towards a wall off to the side. Deputy Gray
recounted that Tereschenko at first complied by turning
around and facing the wall behind him, but then kept turning
back around, so Deputy Barry had to give his order to face
the wall five times.
Deputy Barry grabbed Tereschenko’s left arm. Deputy
Gray explained that this move was in response to
Tereschenko suddenly reaching for something past Deputy
Barry, though Deputy Gray did not think the reach was a
violent gesture. Deputy Gray then grabbed Tereschenko’s
right arm and tried to put it in a control hold by locking
Tereschenko’s wrist. Tereschenko stiffened both arms and
resisted the attempts to move them. Both deputies told
Tereschenko to “stop resisting.” With Deputy Barry at
5 foot 7 inches and 185 pounds and Deputy Gray between
5 foot 10 and 5 foot 11 inches and 195 pounds, Tereschenko
was considerably larger than each of the deputies. Deputy
Barry described the moment: “we were just being tossed
around while still hanging onto [Tereschenko].” Through
the open doorway, Isayeva saw Tereschenko “push[] a little
8 ISAYEVA V. BARRY
bit the officers” while trying to “get his hands free or
something.” Deputy Barry said the struggle lasted “a few
seconds,” while Deputy Gray remembered it going on for
about fifteen seconds.
Deputy Barry next tased Tereschenko between his
shoulder blades in “drive-stun mode” 1 for a five-second
cycle. Deputy Gray and Isayeva remember Deputy Barry
warning Tereschenko that he was going to tase him. But
Deputy Barry recalled giving no such warning.
Through the open doorway, Isayeva saw Tereschenko
react violently to the tasing by going “extremely wild” and
screaming “like an animal” that was “wounded.” Deputy
Barry at once lost control of Tereschenko’s arm and flew up
against a wall. It is disputed whether Tereschenko purposely
threw Deputy Barry or inadvertently “bucked” him into the
wall. According to Deputy Gray, Tereschenko then punched
him in the face “so hard[ that he] flew back and fell” into
several birdcages along one wall. Deputy Barry saw Deputy
Gray get thrown across the room but did not see him get
punched.
Tereschenko turned back to Deputy Barry and hit him
repeatedly in the head, face, neck, and back. As Deputy
Barry received punches, his vision became hazy and tunnel-
like; he started to pass out. The deputy jumped backwards
towards a bed, where he could see Tereschenko still
“continuing towards” him with “balled fists” in the air.
Deputy Gray got up from the ground and saw Tereschenko
standing over Deputy Barry. Tereschenko was throwing
1
Drive-stun mode involves pushing two electrode contacts directly
against the individual and delivering an extremely painful electric shock.
Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011).
ISAYEVA V. BARRY 9
punches at the deputy while Barry lay on his back on the bed,
though Deputy Gray could not see whether any of the
punches landed, and does not remember whether
Tereschenko’s fists were balled at the time. Deputy Gray
tried to reengage Tereschenko by jumping on his back and
trying to place him in a “carotid hold,” 2 but Tereschenko
pushed the deputy off. From her position outside the room,
Isayeva did not see Tereschenko punch either of the
deputies, but she heard “very deep screaming.”
Now the brawl turned deadly. After being thrown off by
Tereschenko, Deputy Gray heard Deputy Barry yell “Shoot
him. Shoot him.” Isayeva remembers hearing something
like “I’m going to shoot,” but Deputy Gray disputes that
Deputy Barry used those precise words. According to
Deputy Barry, he just yelled “Shoot him.”
Deputy Gray stood up and began to unholster his gun.
Right then Deputy Barry, still seated or lying on the bed with
Tereschenko standing close in front of and possibly
advancing toward him, fired three shots, killing
Tereschenko.
Deputy Barry had visible injuries including bruises and
swelling around his eyes, bruising and redness to his left ear,
and bruising at the base of his neck. After an interview on
the shooting, Deputy Barry developed nausea and went to
2
A carotid hold involves the officer placing his or her arm around
the individual’s neck to “constrict[] blood flow through the carotid
artery, which supplies oxygenated blood to the brain.” Knapps v. City of
Oakland, 647 F. Supp. 2d 1129, 1143 (N.D. Cal. 2009), amended in part
(Sept. 8, 2009). If successful, “[u]nconsciousness occurs, which causes
the individual’s body to relax completely, but breathing continues
uninterrupted.” Id.10 ISAYEVA V. BARRY
the emergency room, where he was diagnosed with a non-
serious head injury.
Isayeva filed this civil rights action under 42 U.S.C.
§ 1983 against Deputy Barry and the County of Sacramento,
alleging, among other claims, that Deputy Barry used
excessive force both when he tased and when he shot
Tereschenko. The district court denied summary judgment
for Deputy Barry, concluding that genuine disputes of
material fact precluded judgment on both the merits of the
claim and on qualified immunity.
Deputy Barry filed this interlocutory appeal, challenging
the district court’s ruling on qualified immunity.
II
We begin by addressing our jurisdiction to hear this
appeal. Under 28 U.S.C. § 1291, we normally have no
jurisdiction to hear interlocutory appeals from the denial of
summary judgment. See, e.g., Swint v. Chambers Cty.
Comm’n, 514 U.S. 35, 43 (1995). But an exception arises
where the movant was denied summary judgment based on
qualified immunity. Knox v. Sw. Airlines, 124 F.3d 1103,
1106 (9th Cir. 1997). Under the collateral order doctrine,
such denials are considered appealable “final decisions”
because “[q]ualified immunity is immunity from suit, not
just a defense to liability.” Id. The immunity “is effectively
lost if a case is erroneously permitted to go to trial.” Mitchell
v. Forsyth, 472 U.S. 511, 526 (1985). A subsequent appeal
from final judgment does not provide effective review. Id.at 526–27.
Our jurisdiction does not extend to all denials of
qualified immunity on summary judgment. We do not have
jurisdiction to decide whether there is a genuine issue of
ISAYEVA V. BARRY 11
material fact. See Ames v. King Cty., 846 F.3d 340, 347 (9th
Cir. 2017) (“Where the district court has determined the
parties’ evidence presents genuine issues of material fact,
such determinations are not reviewable on interlocutory
appeal.”). We do, however, have jurisdiction to decide
whether, taking the facts in the light most favorable to the
non-moving party, the defendants are entitled to qualified
immunity—that is, we may “review a denial of qualified
immunity where a defendant argues . . . that the facts, even
when considered in the light most favorable to the plaintiff,
show no violation of a constitutional right, or no violation of
a right that is clearly established in law.” Id.In Maropulos v. County of Los Angeles, we encouraged
district courts to help us evaluate our jurisdiction by
“articulat[ing] the basis upon which they deny qualified
immunity.” 560 F.3d 974, 976 (9th Cir. 2009) (per curiam).
Here, the district court stated in its order denying summary
judgment that genuine disputes of material fact existed
regarding whether the tasing and shooting were reasonable
uses of force, and that those disputes of fact precluded ruling
that Deputy Barry was entitled to qualified immunity. Then,
in an order certifying this appeal as frivolous, the district
court characterized its summary judgment ruling as resting
on the determination that there are genuine issues of material
fact, and concluded that Deputy Barry’s appeal was
frivolous.
But the district court misapplied the law on qualified
immunity. We must accept the district court’s determination
that there is a genuine dispute as to the circumstances under
which Deputy Barry tased and shot the decedent. But,
contrary to the district court’s reasoning, the existence of a
genuine dispute about the reasonableness of an officer’s use
of force does not preclude granting qualified immunity or
12 ISAYEVA V. BARRY
eliminate any basis for an immediate appeal of denial of
qualified immunity. See, e.g., Mattos v. Agarano, 661 F.3d
433, 446 (9th Cir. 2011) (en banc). Qualified immunity
involves two questions: (1) whether the defendant violated a
constitutional right, and (2) whether that right was clearly
established at the time of the alleged violation. See Pearson
v. Callahan, 555 U.S. 223, 232 (2009). Thus, as we recently
explained, an officer may be denied qualified immunity at
summary judgment in a Section 1983 case “only if (1) the
facts alleged, taken in the light most favorable to the party
asserting injury, show that the officer’s conduct violated a
constitutional right, and (2) the right at issue was clearly
established at the time of the incident such that a reasonable
officer would have understood [his] conduct to be unlawful
in that situation.” Hughes v. Kisela, 862 F.3d 775, 783 (9th
Cir. 2016) (quoting Torres v. City of Madera, 648 F.3d 1119,
1123 (9th Cir. 2011)). Either prong can be adjudicated on
appeal by taking the facts as most favorable to the plaintiffs
and applying the pertinent legal standards to those facts. See,
e.g., Pearson, 555 U.S. at 236 (holding, in a case involving
a qualified immunity determination at summary judgment,
that appellate judges may adjudicate the two prongs in either
order, according to “their sound discretion”); Mitchell v.
Washington, 818 F.3d 436, 446–47 (9th Cir. 2016)
(adjudicating both prongs on summary judgment);
Tarabochia v. Adkins, 766 F.3d 1115, 1121–28 (9th Cir.
2014) (same); Mueller v. Auker, 576 F.3d 979, 993–98 (9th
Cir. 2009) (same). We have jurisdiction over the current
appeal on that basis.
The conclusion that our jurisdiction is proper is
reinforced by looking at the issues Deputy Barry raises on
appeal. See, e.g., Mattos, 661 F.3d at 439 n.2 (concluding
that jurisdiction is proper in part based on the issues raised
by the officers). Deputy Barry contends that his use of both
ISAYEVA V. BARRY 13
(a) the taser, and (b) deadly force, against Tereschenko did
not violate clearly established law. We assume the facts
most favorable to the plaintiff, and have jurisdiction to
address (1) whether Deputy Barry violated clearly
established law when he tased Tereschenko; and (2) whether
Deputy Barry violated clearly established law when he
fatally shot Tereschenko.
III
We review the district court’s conclusions regarding
qualified immunity de novo. Robinson v. Prunty, 249 F.3d
862, 865–66 (9th Cir. 2001). Again, we consider all disputed
facts in the light most favorable to the nonmoving party,
Isayeva. See Glenn v. Washington Cty., 673 F.3d 864, 870
(9th Cir. 2011).
IV
Qualified immunity protects government officials from
suits for money damages “insofar as their conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Hughes,
862 F.3d at 782 (internal quotation marks omitted). Once
the official pleads qualified immunity, the burden is on the
plaintiff to prove two elements: (1) that the right was
violated; and (2) that the right was clearly established at the
time of the alleged misconduct. Mattos, 661 F.3d at 440;
Tarabochia, 766 F.3d at 1125. We have discretion to choose
which qualified immunity prong to address first. Pearson,
555 U.S. at 236. Here, Deputy Barry stresses the second
prong, whether Tereschenko’s rights not to be subject to the
tasing and to the shooting were “clearly established” on
February 18, 2013. We address that prong first and, given
our conclusion, need not address the other.
14 ISAYEVA V. BARRY
“A clearly established right is one that is sufficiently
clear that every reasonable official would have understood
that what he is doing violates that right.” Mullenix v. Luna,
136 S. Ct. 305, 308 (2015) (internal quotation marks
omitted). While “officials can still be on notice that their
conduct violates established law even in novel factual
circumstances,” Hope v. Pelzer, 536 U.S. 730, 741 (2002),
“existing precedent must have placed the statutory or
constitutional question beyond debate,” Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011). “Put simply, qualified immunity
protects all but the plainly incompetent or those who
knowingly violate the law.” Mullenix, 136 S. Ct. at 308(internal quotation marks omitted).
Deputy Barry contends that his use of a taser and of
deadly force did not violate clearly established Fourth
Amendment prohibitions against the use of excessive force.
Under the Supreme Court’s leading case, Graham v.
Connor, determining whether the use of force to effect a
seizure was unreasonable under the Fourth Amendment—
and therefore unlawful—requires “a careful balancing of the
nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing
governmental interests at stake.” 490 U.S. 386, 396 (1989)
(internal quotation marks omitted). In evaluating the
governmental interest, we generally consider factors
including (a) the severity of the suspect’s alleged crime;
(b) whether the suspect posed an immediate threat to the
officers’ safety; and (c) whether the suspect was actively
resisting arrest or attempting to escape. Newmaker v. City of
Fortuna, 842 F.3d 1108, 1116 (9th Cir. 2016). Other factors
relevant to the reasonableness of force “include the
availability of less intrusive alternatives to the force
employed, whether proper warnings were given and whether
it should have been apparent to officers that the person they
ISAYEVA V. BARRY 15
used force against was emotionally disturbed.” Glenn,
673 F.3d at 872. Of all these considerations, the “most
important” is “whether the suspect posed an immediate
threat to the safety of the officers or others.” S.B. v. Cty. of
San Diego, — F.3d —, No. 15-56848, 2017 WL 1959984, at
*4 (9th Cir. May 12, 2017) (internal quotation marks
omitted). When an officer uses deadly force, this factor
becomes a strict requirement: the officer must have
“probable cause to believe that the suspect poses a
significant threat of death or serious physical injury.”
Tennessee v. Garner, 471 U.S. 1, 3 (1985).
But these general standards are only the starting point.
The dispositive question is “whether the violative nature of
particular conduct is clearly established.” Mullenix, 136 S.
Ct. at 308 (internal quotation marks omitted). This question
must be answered “not as a broad general proposition,” but
with reference to the facts of specific cases. Id. (internal
quotation marks omitted). “We do not require a case directly
on point, but existing precedent must have placed the
statutory or constitutional question beyond debate.” al-
Kidd, 563 U.S. at 741. In typical cases, the plaintiff
“identif[ies] a case where an officer acting under similar
circumstances as [the defendant] was held to have violated
the Fourth Amendment.” S.B., 2017 WL 1959984, at *6
(quoting White v. Pauly, 137 S. Ct. 548, 552 (2017) (per
curiam)). In the absence of “a case directly on point,” we
compare “specific factors” relevant to the excessive force
inquiry to determine whether a reasonable officer would
have known that the conduct in question was unlawful. 3
3
Of course, in a case where the conduct is “obvious[ly]” unlawful,
we do not require similarly “obvious” precedent to clearly establish the
law. Hughes, 862 F.3d at 785 (internal quotation marks omitted). If that
were the standard, “officers would escape responsibility for the most
16 ISAYEVA V. BARRY
Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010);
see also Hughes, 862 F.3d at 779–80 (enumerating factors
relevant to determining whether an officer’s actions are
objectively reasonable).
A
We begin with Deputy Barry’s use of the taser. The
district court found two genuine factual disputes that are
relevant to the reasonableness of the tasing. One was
whether Tereschenko urged others to kill Isayeva or merely
heard voices saying someone was going to kill her. The
other dispute was whether Deputy Barry gave a warning
before tasing Tereschenko. Remaining within the bounds of
our jurisdiction, we accept the district court’s findings that
these factual disputes are genuine and supported by the
record. See George v. Morris, 736 F.3d 829, 834 (9th Cir.
2013).
But resolving these disputes in Isayeva’s favor and
granting her all reasonable factual inferences, the record up
to the tasing shows this: Deputies Barry and Gray responded
to a domestic disturbance call about an individual with
possible mental health issues who was refusing to leave a
home. Deputy Barry learned that Tereschenko was
unarmed, but might have been under the influence of
methamphetamine and earlier was hearing voices in his head
mentioning the killing of others. Tereschenko’s appearance
and mannerisms confirmed that he was probably high on
methamphetamine or other drugs. At over six feet tall and
more than 250 pounds, he was larger than each of the
egregious forms of conduct simply because there was no case on all fours
prohibiting that particular manifestation of unconstitutional conduct.”
Deorle v. Rutherford, 272 F.3d 1272, 1275 (9th Cir. 2001).
ISAYEVA V. BARRY 17
deputies. While speaking to the deputies for seven to ten
minutes, Tereschenko asked for help, mentioned that he was
schizophrenic, and rambled about random topics. He was
eventually compliant with the deputies’ requests to sit,
though he later started to become agitated and said “you’re
gonna have to shoot or kill me.” Deputy Barry told
Tereschenko that he was going to take him to a hospital and
asked him to turn around. Tereschenko initially complied,
but kept turning back around. Fearing that Tereschenko was
reaching for something, Deputy Barry grabbed one of his
arms. Deputy Gray grabbed the other. Tereschenko
stiffened his arms and tried to get his hands free by pushing
the officers and resisting Deputy Gray’s attempt at a control
hold. Both deputies told Tereschenko to stop resisting. The
deputies struggled with the resisting Tereschenko, who was
tossing them around. Then, Deputy Barry tased
Tereschenko in drive-stun mode for a five-second cycle.
As of February 18, 2013, the date of the incident, three
key published cases from the Ninth Circuit established when
the use of a taser was unreasonable under the Fourth
Amendment.
The first is Bryan v. MacPherson. The plaintiff in Bryan
was a possibly-mentally-ill twenty-one-year-old male pulled
over for failing to wear his seatbelt. Id. at 822, 829. After
not hearing the officer’s command to stay in his vehicle, the
plaintiff exited his car. Id. at 822. He was visibly upset,
shouting gibberish and cursing, but made no threatening
statements. Id. Without warning, the officer tased the
plaintiff once in “dart mode,” 4 causing the plaintiff to lose
4
Dart mode involves propelling a pair of metal darts at a rate of
more than 160 feet per second and delivering a 1200-volt electrical
18 ISAYEVA V. BARRY
muscle control and fall face first to the pavement, knocking
out four teeth. Id. at 822–24. Construing the facts in the
light most favorable to the plaintiff, at the time of the tasing
he was standing fifteen to twenty-five feet away from the
officer, facing the other direction, and not moving. Id. at
823. Viewing the facts in that manner, we held that the
tasing violated the Fourth Amendment. Id. at 833.
Both Tereschenko and the plaintiff in Bryan were
unarmed and were tased without warning. Both were
possibly mentally ill, were agitated, and failed to comply
with at least one law enforcement command. And neither
had committed a serious crime.
However, important features distinguish the two uses of
force. For starters, Bryan involved a greater degree of force.
Deputy Barry used the taser in “drive-stun mode,” which
delivered an electric shock to Tereschenko that, while
undoubtedly painful, did not override his central nervous
system or result in temporary paralysis, as did the “dart
mode” tasing in Bryan. See Mattos, 661 F.3d at 443. There
is also no indication from the record that Tereschenko’s
tasing injured him, while the Bryan plaintiff’s tasing led to
four missing teeth and facial abrasions—injuries that, we
concluded, a reasonable officer would have foreseen. See
Bryan, 630 F.3d at 824.
Perhaps most importantly, Tereschenko also posed a
greater and more immediate threat. He was engaged in a
struggle with the deputies, physically resisting them, and
indeed was tossing them around, while the plaintiff in Bryan
was fifteen to twenty-five feet away facing the opposite
charge that instantly overrides the recipient’s central nervous system,
causing temporary paralysis. Id. at 824.
ISAYEVA V. BARRY 19
direction. Deputy Barry also had reason to believe that
Tereschenko was under the influence of drugs, which
indicated that he might be less willing or able to control
himself. There was no reason to believe the same for the
plaintiff in Bryan.
Because of these differences, Bryan would not have put
Deputy Barry on notice that tasing Tereschenko amounted
to unconstitutionally excessive force.
The next two cases, Brooks v. City of Seattle and Mattos
v. Agarano, were heard together as consolidated appeals
before an en banc panel of this court. See Mattos, 661 F.3d
433. In Brooks, the plaintiff was a seven-months-pregnant
woman who was pulled over for speeding. Id. at 436. After
she refused to sign a traffic citation and to exit her car, one
of three officers present held up a taser and asked if the
plaintiff knew what it was. Id. at 437. The plaintiff indicated
that she did not. Id. Another officer grabbed the plaintiff’s
arms and tried to remove her from the vehicle, but the
plaintiff “stiffened her body and clutched the steering
wheel.” Id. The first officer then tased the plaintiff in drive-
stun mode three separate times within less than a minute. Id.In Mattos, the plaintiff was a woman involved in a
domestic dispute with her husband. Id. at 438. Three
officers responded, and the plaintiff’s husband, who was
large and smelled of alcohol, began yelling at them. Id. at
438–39. One officer tried to arrest the husband, but the
plaintiff stood between the officer and her husband and did
not move. Id. at 439. As the officer moved forward, the
plaintiff extended her arms to prevent him from running into
her chest. Id. He asked, “Are you touching an officer?” Id.The plaintiff tried to calm the officers and her husband down
so as not to wake her sleeping children, but then one of the
20 ISAYEVA V. BARRY
officers, without warning, tased the plaintiff once in dart
mode. Id.In both Brooks and Mattos, we held that when the record
was construed in the plaintiff’s favor the use of the taser was
unreasonable under the Fourth Amendment. Id. at 452.
There are some similar facts. Tereschenko was not
armed. Nor were the plaintiffs in Brooks and in Mattos.
None of these plaintiffs had committed a serious crime. And
none was given an adequate warning. Tereschenko and the
plaintiff in Brooks both resisted the officers by stiffening up.
And all three plaintiffs tried to frustrate the officers by
plaintiffs’ physical efforts.
But the resistance from Tereschenko posed a much
greater threat to the officers than did that of the plaintiffs in
Brooks and Mattos. Tereschenko was a very big man. As
we previously said, he was a more than six-foot-tall and
more than 250-pound man who was sought to be detained by
two much smaller officers. This disparity in size posed
obvious risks of physical harm to the officers. In both
Brooks and Mattos, the person tased was a woman—one of
whom was seven-months pregnant—and the tased woman
was confronting three officers. The plaintiff in Mattos, who
merely extended her arms, gave the officer far less physical
resistance than did Tereschenko, who was strong enough to
toss the deputies around and frustrate their physical efforts
to constrain him. And Tereschenko’s violent resistance
came with the deputies’ knowledge that Tereschenko was
likely under the influence of drugs. The plaintiffs in Brooks
and Mattos were—as far as the records showed—sober.
The nature of the government’s intrusion was also more
severe in both Brooks and Mattos than what had occurred in
this case at the time of the tasing. In Brooks, the officer tased
ISAYEVA V. BARRY 21
the plaintiff three times in less than a minute, while Deputy
Barry tased Tereschenko only once. In Mattos, the officer
tased the plaintiff once in dart mode, not in the less-
incapacitating drive-stun mode that Deputy Barry deployed
against Tereschenko.
These differences show that neither Brooks nor Mattos
clearly established on February 18, 2013 that tasing
Tereschenko would violate the Fourth Amendment. Nor do
the two cases in combination with each other or with Bryan
put the constitutionality of Deputy Barry’s actions “beyond
debate.” al-Kidd, 563 U.S. at 741. Viewing the facts in the
light most favorable to the plaintiff Isayeva, we hold that
Tereschenko did not have a clearly established right violated
by Deputy Barry’s use of the taser. Deputy Barry is
therefore entitled to qualified immunity for the tasing. We
need not and do not reach the first prong of qualified
immunity, asking whether Deputy Barry’s use of the taser
was reasonable under the Fourth Amendment. See Pearson,
555 U.S. at 236. It is sufficient for purposes of qualified
immunity merely to conclude that no clearly established law
was violated by Deputy Barry in connection with his use of
a taser against the resisting Tereschenko.
B
We next address Deputy Barry’s subsequent use of
deadly force against Tereschenko. The district court found
two genuine factual disputes that are relevant to the
reasonableness of the shooting. First, it found disputed
whether, immediately after being tased, Tereschenko had
purposely thrown Deputy Barry against a wall or merely had
inadvertently “bucked” him into a wall. Second, the district
court found disputed whether Tereschenko subsequently
punched, pushed, or threw Deputy Gray.
22 ISAYEVA V. BARRY
The district court also found that several facts were not
subject to genuine dispute. It found that no evidence
supported that Tereschenko at any point had reached for a
weapon, and that no evidence showed that Tereschenko was
standing still when shot. 5 It also found that while there was
a dispute over whether Deputy Barry said “I’m going to
shoot,” it was undisputed that he at least yelled “Shoot him.”
We accept these factual findings by the district court. See
George, 736 F.3d at 834.
Construing all disputed facts in Isayeva’s favor, we
summarize the record after the tasing as follows: The shock
from the tasing caused Tereschenko to buck Deputy Barry
into a wall. Tereschenko then turned to Deputy Gray, and
pushed him backwards. Tereschenko was screaming like a
wounded animal. He repeatedly hit Deputy Barry on the
head, neck, and back. Deputy Barry was losing
consciousness when he jumped backward onto the bed.
Tereschenko continued to move towards him with balled
fists in the air. Deputy Gray jumped on Tereschenko’s back
and tried to put him in a chokehold, but Tereschenko pushed
him off. Deputy Barry yelled “Shoot him.” With
Tereschenko still moving towards him, Deputy Barry fired
three shots, killing Tereschenko. Deputy Barry was banged
up quite a bit by the struggle. He sustained cuts and bruises
around his eyes, ears, and the base of his neck, as well as a
minor head injury.
5
Although a decedent’s version of events may be constructed
circumstantially from “inconsistencies in the testimony of law
enforcement,” George, 736 F.3d at 834, the district court declined to
credit a potential inconsistency in Deputy Barry’s testimony about
whether Tereschenko was standing still or was advancing when he was
shot.
ISAYEVA V. BARRY 23
Isayeva contends that, under these circumstances,
Garner clearly established that the shooting was
unreasonable. She emphasizes Garner’s requirement that
officers may not use deadly force absent “probable cause to
believe that the suspect poses a significant threat of death or
serious physical injury to the officer or others.” 471 U.S. at
3. She argues that Tereschenko posed no such threat of death
or serious injury. 6 But there are no existing precedents,
including Garner, suggesting that Deputy Barry’s use of
deadly force violated any clearly established right held by
Tereschenko.
The standards from Garner and Graham “are cast at a
high level of generality,” so they ordinarily do not clearly
establish rights. Brosseau v. Haugen, 543 U.S. 194, 199
(2004). Rather, it is the facts of particular cases that clearly
establish what the law is. See White, 137 S. Ct. at 552.
Garner involved an officer shooting an individual to stop
him from escaping a non-violent crime scene over a chain
link fence. 471 U.S. at 3–4. That is quite different from an
officer shooting an individual while enmeshed in, and on the
losing end of, a serious fight with an opponent who is bigger
than the shooting officer and possibly high on drugs. The
officer in Garner had little reason to think that if the suspect
escaped over the fence, he would pose any threat of death or
serious physical injury to himself or to anyone else. See id.
at 21. In sharp contrast, Deputy Barry took repeated blows
to the head and was losing consciousness, giving him reason
to believe that serious injury to himself or to Deputy Gray—
or possibly to the other family members in the house,
6
At oral argument, Isayeva’s counsel stated that she was also
proceeding on a “provocation theory” of liability. The Supreme Court
recently held that the Fourth Amendment provides no basis for such a
theory. See Cty. of Los Angeles v. Mendez, 137 S. Ct. 1539, 1544 (2017).
24 ISAYEVA V. BARRY
including Isayeva standing just outside the door—could
result if Tereschenko was not stopped.
There is an exception to the rule that the Garner standard
does not clearly establish the law governing when the use of
deadly force is lawful. In an “obvious case,” Garner’s
general test can “‘clearly establish’ the answer, even without
a body of relevant case law.” Brosseau, 543 U.S. at 199.
We recently held in Hughes that an officer was not entitled
to qualified immunity for his shooting of an individual in
part because, when the facts were construed in the plaintiff’s
favor, the officer’s use of deadly force was “obvious[ly]”
unlawful. 862 F.3d at 785 (internal quotation marks
omitted). Resolving all factual disputes in favor of the
plaintiff, at the time of the shooting the plaintiff in Hughes
held a kitchen knife at her side as she calmly spoke to
another person outside of her home. Id. at 778. The plaintiff
had not responded to an officer’s rapid demands to drop the
knife, but there was also no indication that the plaintiff had
understood the commands of the officer, who was on the
other side of a fence. Id. We held that, taking the facts of
that case taken in the light most favorable to the plaintiff and
comparing them to the facts in available precedent involving
excessive force, no officer could have reasonably believed
that the plaintiff posed a risk of serious injury or death. The
plaintiff’s “right to walk down her driveway holding a knife
without being shot” was clearly established. Id. at 785.
Unlike in Hughes, here we conclude that Deputy Barry’s
use of force was not obviously unlawful. Indeed, construing
the facts in Isayeva’s favor, there are strong reasons to
believe that Tereschenko posed a risk of death or serious
injury to the officers or to the family members in the home.
First, Tereschenko clearly had the upper hand in the fight.
After being tased—which failed to immobilize
ISAYEVA V. BARRY 25
Tereschenko—Tereschenko had succeeded in freeing both
of his arms, in pushing Deputy Gray, and in pummeling
Deputy Barry to the point that he began to pass out. Deputy
Gray had tried without success to use a chokehold to subdue
Tereschenko, but Tereschenko just threw him off.
Tereschenko’s repeated hits to Deputy Barry’s head and face
left the deputy with facial bruises and a minor head injury.
Even under the view of the facts most favorable to plaintiff,
Tereschenko was winning this fight, and was doing so
quickly, highlighting the risks to Deputy Barry.
That Deputy Barry began to pass out when he was being
beaten turned this dangerous fight into a potentially deadly
one. If a police officer is knocked out during a struggle, it
increases the risk to the officer and others because it gives
the attacker an opportunity to hit the officer no longer able
to defend himself, or to grab the officer’s gun. Deputy Barry
testified that if he “got knocked out, [he] feared
[Tereschenko] was going to kill [the deputies].” Had
Tereschenko landed a few more blows before Deputy Barry
fired at him, Tereschenko could have either beat him while
defenseless, potentially causing serious injury, or gotten
hold of his firearm. The record does not show that
Tereschenko at any point tried to take Deputy Barry’s gun,
but the possibility that he may have done so if Deputy Barry
lost consciousness underscores the high risks posed by the
violent situation as perceived objectively by a reasonable
officer.
Furthermore, the deputies had information that made
Tereschenko more threatening than indicated by his physical
abilities alone. Tereschenko was likely under the influence
of methamphetamine or some other drugs, and so was
possibly less able to control himself. Once Deputy Barry
began to pass out, the possibility that Tereschenko might
26 ISAYEVA V. BARRY
lack the self-control to stop himself from seriously injuring
or killing the deputies made the situation more dangerous.
Tereschenko’s earlier mention of voices in his head talking
about family members killing Isayeva also raised the threat
level. The government interest in using force is usually less
strong when an individual is mentally ill, see Deorle,
272 F.3d at 1283, but here Tereschenko’s apparent mental
condition led him to recount homicidal voices, and the
knowledge of that fact would increase the perceived threat
to any reasonable officer.
Other factors support that Deputy Barry’s use of deadly
force was not obviously unlawful. Deputy Barry yelled
“Shoot him” before firing, and there is no reason to think that
Tereschenko did not hear the deputy. These words gave
notice to Tereschenko that more struggle could result in
gunshots, making Deputy Barry’s use of force more
reasonable under the Fourth Amendment. See id. at 1282.
The officers also had no reasonably effective alternative
to deadly force. See Glenn, 673 F.3d at 876. Using physical
force against Tereschenko plainly did not work; the officers
were quickly losing in hand-to-hand combat. By the time of
the shooting, Deputy Barry had already tried tasing
Tereschenko, and it seemed to only make Tereschenko more
angry and aggressive. Deputy Barry carried pepper spray,
but using it in such close proximity to Tereschenko and
Deputy Gray could have backfired, either by further
enraging Tereschenko, as did the tasing, or by incapacitating
the deputies as much or more than incapacitating
Tereschenko. Deputy Gray testified that he did not carry
pepper spray on the day of the incident precisely because “it
just irritates people more and gets all over myself and my
partners more than the person that we are trying to apply it
to.” Escaping and calling for backup was also not a practical
ISAYEVA V. BARRY 27
option. Being close to unconsciousness, Deputy Barry likely
could not escape himself, and if Deputy Gray tried to leave
the room, Deputy Barry would have been left alone in
serious danger. Deputy Barry was ultimately “forced to
make [a] split-second judgment[]—in circumstances that
[were] tense, uncertain, and rapidly evolving—about the
amount of force that [was] necessary.” Graham, 490 U.S. at
397.
Nor does our own precedent clearly establish that Deputy
Barry’s use of deadly force was unreasonable. Isayeva cites
only one case from our circuit where an officer was involved
in hand-to-hand combat with an individual, the officer used
deadly force, and we held that the force used was excessive.
See Hopkins v. Andaya, 958 F.2d 881 (9th Cir. 1992), as
amended (Mar. 24, 1992) (per curiam). In Hopkins, when
the record was construed in favor of the plaintiff, the fight
involved the decedent hitting the officer once or twice to the
arm or head, and the officer suffering only a minor cut on his
arm and bruises on his elbow, back, and leg. Yet, without
warning, the officer shot the decedent. Id. at 884, 886. We
concluded that the officer “was never in any serious danger”
and that the use of deadly force was unreasonable. Id. at 886.
Unlike the present case, the decedent in Hopkins at no point
had the upper hand in the fight, and the officer never came
close to passing out. The decedent in Hopkins posed a much
lesser threat to officer and citizen safety than did
Tereschenko. Hopkins, like Garner, does not clearly
establish that Deputy Barry’s use of deadly force was
unlawful.
The above discussion shows that not only was it not
obvious that Deputy Barry’s use of deadly force was
excessive, but that there are strong reasons supporting the
reasonableness of the shooting. We conclude that under the
28 ISAYEVA V. BARRY
circumstances of this case, Garner does not clearly establish
Tereschenko’s right to be free from deadly force by Deputy
Barry. Though our analysis discussed factors relevant to
whether Deputy Barry’s use of deadly force was reasonable,
we reach no conclusion on that issue. See Pearson, 555 U.S.
at 236. Instead, we rest our holding on the second prong of
qualified immunity, that Tereschenko held no clearly
established right not to be shot by Deputy Barry.
V
We hold that Deputy Sean Barry is entitled to qualified
immunity for the tasing and fatal shooting of Paul
Tereschenko. This disposes of the federal claim that
excessive force in violation of the Fourth Amendment was
used by Deputy Barry. Because state law claims remain
pending, we remand for further proceedings consistent with
this opinion.
REVERSED and REMANDED.