Preston Seidner v. Jonathan De Vries ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PRESTON SEIDNER, No. 20-17403
Plaintiff-Appellee,
D.C. No.
v. 2:19-cv-05394-
DLR-DMF
JONATHAN DE VRIES, Named as
Devries #19922, Uniform Mesa
Police Officer, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted August 10, 2021
San Francisco, California
Filed June 30, 2022
Before: Eugene E. Siler, * Morgan Christen, and
Danielle J. Forrest, Circuit Judges.
Opinion by Judge Forrest;
Concurrence by Judge Christen
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 SEIDNER V. DE VRIES
SUMMARY **
Civil Rights
The panel reversed the district court’s denial of qualified
immunity to a police officer in an action brought pursuant to
42 U.S.C. § 1983 alleging excessive force when the officer
used a roadblock to stop plaintiff, who was suspected of
committing a minor traffic violation, from fleeing on a
bicycle.
The panel held that the question of whether Officer
Jonathan de Vries used excessive force against Plaintiff
Preston Seidner would be a question for a factfinder. The
roadblock was a use of intermediate force that was capable
of inflicting significant pain and causing serious injury.
Given the circumstances, a jury could conclude that de Vries
should have taken additional steps to stop Seidner before
using an intermediate level of force given Seidner’s minor
offense and the lack of any safety risk to de Vries or anyone
else. However, even if de Vries did use excessive force, the
law as it existed at the time of the incident did not clearly
establish that his actions violated the Fourth Amendment.
Therefore, de Vries was entitled to qualified immunity.
Concurring in the judgment, Judge Christen agreed with
the majority that no case law addressed the use of a police
car to stop a bicycle and that de Vries was entitled to
qualified immunity. Judge Christen dissented from the
majority’s Fourth Amendment excessive force analysis,
stating that effectuating a traffic stop by sharply swerving a
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SEIDNER V. DE VRIES 3
police vehicle into the path of Seidner’s bicycle constituted
the use of deadly force and given the surrounding
circumstances, was constitutionally excessive as a matter of
law.
COUNSEL
Alexander J. Lindvall (argued), City Attorney’s Office,
Mesa, Arizona, for Defendant-Appellant.
Mahogane D. Reed (argued) and Christopher Kemmitt,
NAACP Legal Defense & Educational Fund Inc.,
Washington, D.C.; Sherrilyn A. Ifill, President and Director-
Counsel; Janai S. Nelson, Ashok Chandran, and Kevin E.
Jason; NAACP Legal Defense & Educational Fund Inc.,
New York, New York; Samuel Weiss and Oren Nimni,
Rights Behind Bars, Washington, D.C.; for Plaintiff-
Appellee.
OPINION
FORREST, Circuit Judge:
The question in this case is whether using a roadblock to
stop a person suspected of a minor offense from fleeing on a
bicycle is excessive force in violation of the Fourth
Amendment. As required, we analyze this question based on
the specific facts of this case, and we conclude that whether
Officer Jonathan de Vries used excessive force against
Plaintiff Preston Seidner would be a question for a
factfinder. However, even if de Vries did use excessive
force, the law was not clearly established that his actions
violated the Fourth Amendment. Therefore, we conclude
4 SEIDNER V. DE VRIES
that de Vries is entitled to qualified immunity, and we
reverse the district court’s denial of de Vries’s summary
judgment motion.
I. BACKGROUND
At summary judgment, we view the facts in the light
most favorable to the nonmovant, here Seidner. Ames v. King
County, 846 F.3d 340, 347 (9th Cir. 2017). But we do not
accept a “version of events that the record, such as an
unchallenged video recording of the incident, ‘quite clearly
contradicts.’” Rice v. Morehouse, 989 F.3d 1112, 1120 (9th
Cir. 2021) (quoting Scott v. County of San Bernardino,
903 F.3d 943, 952 (9th Cir. 2018)).
A. Traffic Stop and Arrest
In February 2020, de Vries was on patrol just before
midnight in Mesa, Arizona when he saw Seidner riding his
bicycle on a well-lit residential street without a front light, in
violation of Arizona Revised Statute § 28-817(A). De Vries
pulled ahead of Seidner to confirm the bicycle-light violation
and activated his marked patrol car’s overhead lights. De
Vries then stopped the car and opened his door to speak to
Seidner. As de Vries exited his car, Seidner continued
pedaling past him and began to flee. De Vries got back in his
car and pursued Seidner. Seidner cut directly in front of de
Vries’s patrol car and continued fleeing. Seidner was
traveling approximately 15 miles per hour.
After following Seidner, de Vries accelerated ahead and
pulled his car at an angle across the street and stopped.
Seconds later, as de Vries started to open his door, Seidner
crashed into the patrol car. Seidner was on the ground when
de Vries exited the car, de Vries handcuffed him while he
lay moaning. De Vries asked Seidner why he fled, and
SEIDNER V. DE VRIES 5
Seidner responded that he was scared. Seidner also stated
that his bicycle did not have working brakes. Seidner
suffered a dislocated wrist and sprained forearm and hit his
head and chest in the impact.
B. District Court Proceedings
Acting pro se, Seidner sued de Vries under 42 U.S.C.
§ 1983, alleging that de Vries violated his Eighth and
Fourteenth Amendment rights. The district court construed
Seidner’s allegations as asserting a Fourth Amendment
excessive-force claim and found that his claim was
plausible.
De Vries then moved for summary judgment based on
qualified immunity. The district court denied de Vries’s
motion, holding that he “seized [Seidner] within the meaning
of the Fourth Amendment” because he “pulled his car into
the middle of the road . . . to effectuate a roadblock to stop
[Seidner] from fleeing from him.” The district court also
concluded that a reasonable jury could find that de Vries
used excessive force by using a roadblock to stop Seidner for
a minor bicycle violation. Finally, the district court held that
“the law was clearly established at the time of [de Vries’s]
actions that his conduct could constitute excessive force.”
De Vries timely appealed.
II. DISCUSSION
We typically lack jurisdiction to hear interlocutory
appeals from denials of summary judgment, but we may hear
appeals from denials based on qualified immunity. Isayeva
v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 944–45 (9th
Cir. 2017); see 28 U.S.C. § 1291. We review such denials de
novo. Roybal v. Toppenish Sch. Dist., 871 F.3d 927, 931 (9th
Cir. 2017).
6 SEIDNER V. DE VRIES
Qualified immunity shields a police officer from civil
damages under Section 1983 “unless the officer[] violated a
clearly established constitutional right.” Monzon v. City of
Murrieta, 978 F.3d 1150, 1156 (9th Cir. 2020). Thus, in
deciding whether qualified immunity applies, we ask two
questions: (1) did the officer violate a constitutional right,
and (2) was that right “clearly established at the time of the
events at issue”? Id. We address both questions in turn.
A. Constitutional Violation
The Fourth Amendment protects against unreasonable
seizures. Torres v. Madrid, __ U.S. __, 141 S. Ct. 989, 995
(2021). Before addressing de Vries’s use of force, we must
decide whether Seidner was seized, thereby implicating the
Fourth Amendment. See, e.g., Villanueva v. California,
986 F.3d 1158, 1165 (9th Cir. 2021). De Vries argued to the
district court that he did not seize Seidner, but he abandoned
this argument on appeal and for good reason. The Supreme
Court has repeatedly held that “whenever an officer restrains
the freedom of a person to walk away, he has seized that
person.” Brower v. County of Inyo, 489 U.S. 593, 595 (1989)
(quoting Tennessee v. Garner, 471 U.S. 1, 7 (1985)). We
easily conclude that de Vries’s use of his patrol car to stop
Seidner from fleeing was a seizure.
The controversy is whether the seizure was reasonable.
“The right to make an arrest or investigatory stop necessarily
carries with it the right to use some degree of physical
coercion or threat thereof to effect it.” Graham v. Connor,
490 U.S. 386, 396 (1989). But an officer’s use of force must
be “objectively reasonable in light of the facts and
circumstances confronting [hi]m.” Williamson v. City of
Nat’l City, 23 F.4th 1146, 1151 (9th Cir. 2022) (internal
quotation marks and citation omitted); see also Lombardo v.
City of St. Louis, __ U.S. __, 141 S. Ct. 2239, 2242 (2021)
SEIDNER V. DE VRIES 7
(per curiam) (requiring a “context-specific analysis” in
excessive force cases).
In assessing “whether an officer’s actions were
objectively reasonable, we consider: ‘(1) the severity of the
intrusion on the individual’s Fourth Amendment rights by
evaluating the type and amount of force inflicted, (2) the
government’s interest in the use of force, and (3) the balance
between the gravity of the intrusion on the individual and the
government’s need for that intrusion.’” Williamson, 23 F.4th
at 1151 (quoting Rice v. Morehouse, 989 F.3d 1112, 1121
(9th Cir. 2021)). “We must judge the reasonableness of a
particular use of force ‘from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
hindsight.’” Id. (quoting Rice, 989 F.3d at 1121). Our
analysis must make “‘allowance for the fact that police
officers are often forced to make split-second judgments—
in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a
particular situation.’” Scott v. Henrich, 39 F.3d 912, 914 (9th
Cir. 1994) (quoting Graham, 490 U.S. at 396–97). It is also
well-established that the Fourth Amendment does not
require that police officers “use the least intrusive degree of
force possible,” Lowry v. City of San Diego, 858 F.3d 1248,
1259 (9th Cir. 2017) (en banc) (internal quotations and
citation omitted), only that any use of force “be justified by
the need for the specific level of force employed.” Rice,
989 F.3d at 1121 (quoting Bryan v. MacPherson, 630 F.3d
805, 825 (9th Cir. 2010)).
1. Type and Amount of Force
Some uses of force can be quantified categorically. The
best example is shooting a firearm, which by definition is
“deadly force”: force that “creates a substantial risk of
causing death or serious bodily injury.” Smith v. City of
8 SEIDNER V. DE VRIES
Hemet, 394 F.3d 689, 693 (9th Cir. 2005) (en banc); see, e.g.,
Plumhoff v. Rickard, 572 U.S. 765, 777 (2014) (referring to
use of a firearm as “deadly force”); Tan Lam v. City of Los
Banos, 976 F.3d 986, 997 (9th Cir. 2020) (same).
Most often, however, quantifying a particular use of
force requires consideration of the “specific factual
circumstances” surrounding the event. Lowry, 858 F.3d at
1256. Both “[t]he nature and degree of physical contact” and
the “risk of harm and the actual harm experienced” are
relevant. Williamson, 23 F.4th at 1152 (citations omitted).
For example, we have classified deployment of a police dog
as both a severe use of force and a moderate use of force
depending on the suspect’s condition when the dog was
ordered to attack, how long the attack lasted, and whether
the dog was within its handler’s control. See Lowry, 858 F.3d
at 1256–57. Likewise, physical contact like hitting and
shoving must be quantified based on the circumstances of
the situation. See Graham, 490 U.S. at 396 (“Not every push
or shove . . . violates the Fourth Amendment.”) (internal
quotation marks and citation omitted); see also Felarca v.
Birgeneau, 891 F.3d 809, 817 (9th Cir. 2018) (quantifying
baton jabs used to control a crowd as “minimal” force);
Young v. County of Los Angeles, 655 F.3d 1156, 1162 (9th
Cir. 2011) (quantifying baton blows to the legs as
intermediate force); Davis v. City of Las Vegas, 478 F.3d
1048, 1055 (9th Cir. 2007) (quantifying slamming suspect
into wall headfirst breaking his neck, throwing him
facedown onto the floor, and punching him in the face as
“extremely severe”).
Like these examples, roadblocks are a type of force that
must be quantified in reference to the surrounding
circumstances. For example, in Buckner v. Kilgore, a
motorcyclist fled from law enforcement and reached speeds
SEIDNER V. DE VRIES 9
“as high as 100 miles per hour during the chase.” 36 F.3d
536, 538 (6th Cir. 1994). To end the pursuit, an officer pulled
his police car across both lanes of the divided highway. Id.The motorcycle crashed into the police car and the two riders
suffered “severe and permanent” injuries. Id. The Sixth
Circuit characterized this roadblock as deadly force because
the officer that created the blockade did not turn on his
overhead lights and pulled out in front of the motorcycle
seconds before impact. Id.On the other hand, in Seekamp v. Michaud, the First
Circuit held that a roadblock “brightly illuminated and
located at the end of a long straightaway” that the suspect
could have avoided hitting if the brakes on his vehicle were
working properly was not deadly force. 109 F.3d 802, 807
(1st Cir. 1997). Similarly, a “rolling roadblock,” where
several police vehicles “surrounded” the suspect’s vehicle,
began braking, and stopped the suspect’s vehicle with a
“low-impact collision,” has been characterized as “de
minimis force.” Tucker v. McCormack, No. 3:08-0522, 2010
WL 3619825, at *5 (M.D. Tenn. July 30, 2010).
Here, de Vries used his patrol car as a roadblock to stop
Seidner from fleeing on his bicycle. It is undisputed that de
Vries did not hit Seidner with his moving car. The primary
dispute in quantifying this use of force is whether de Vries
gave Seidner enough space to stop so he could avoid
colliding with the patrol car. Because we must take the facts
in the light most favorable to Seidner, we accept that de
Vries did not pull far enough ahead for Seidner to stop before
hitting the car.
But this fact cannot be considered in a vacuum. Seidner
was on a bicycle moving at a relatively low speed, and de
Vries’s patrol car was visible to him throughout the entire
incident. Thus, even if Seidner could not fully stop before
10 SEIDNER V. DE VRIES
hitting the patrol car, it was reasonable for de Vries to expect
that Seidner could react to the situation by slowing down,
turning, or taking other measures to minimize any impact.
See Brower, 489 U.S. at 598 (acknowledging that a
roadblock is designed “to induce a voluntary stop”). It turned
out that Seidner did not have working brakes on his bicycle,
but de Vries did not know that. See United States v. Black,
482 F.3d 1035, 1038 (9th Cir. 2007) (“[W]hether the actions
of the police are objectively reasonable is to be judged by the
circumstances known to them.”). De Vries could see that
Seidner was riding without a helmet, but we reject the
proposition that any collision with a person riding a bicycle
without a helmet inherently creates a substantial risk of
death or serious injury. The surrounding circumstances still
matter.
We do not suggest that Seidner had no or only a minimal
risk of harm in this situation. That would ignore the
practicalities of bicycles and cars. But the risk was not
inherently dire in the same way as a highway roadblock
placed where a motorized vehicle traveling at a high speed
cannot avoid colliding with it and death is a likely outcome
of impact. See Brower, 489 U.S. at 599 (describing the
possibility of “setting up [a] roadblock in such [a] manner as
to be likely to kill” a fleeing suspect). Instead, we conclude
that the roadblock that de Vries created in this case is an
example of force that is “capable of inflicting significant
pain and causing serious injury,” which we have classified
as “intermediate force.” Young, 655 F.3d at 1161.
Seidner and our concurring colleague assert that the
roadblock was deadly force. Seidner relies on two lines of
cases in making this argument: (1) where officers use their
vehicle as “an impact weapon,” and (2) where officers erect
SEIDNER V. DE VRIES 11
“a makeshift roadblock to force a collision.” These cases are
distinguishable.
First, as previously noted, de Vries did not hit Seidner
with his moving car. De Vries stopped his car in front of
Seidner, and Seidner hit the car. This distinction renders the
cases where officers used their vehicle as “an impact
weapon” inapposite. Second, as discussed above, the cases
that have classified roadblocks as deadly force have, as
noted, involved blockades that vehicles traveling at high
speeds could not avoid. See Buckner, 36 F.3d at 538–40; see
also Hawkins v. City of Farmington, 189 F.3d 695, 698–702
(8th Cir. 1999) (concluding that a partial roadblock created
to stop a fleeing motorcyclist traveling at high speeds that
caused an unavoidable collision was unreasonable force).
Here, unlike in Buckner, the blockade was not obscured.
De Vries activated his overhead lights well before
maneuvering his car to block Seidner’s path; the car was also
continuously within Seidner’s view. Additionally, Seidner
was not traveling at anything near the speeds involved in
Buckner or the other cases that Seidner cites. We have found
no case indicating that a roadblock used in circumstances
comparable to those presented here constitutes deadly force.
And we do not reach that conclusion in the first instance. We
agree that the roadblock here was “capable of inflicting
significant pain and causing serious injury,” Young, 655 F.3d
at 1161 (emphasis added), but we disagree that it created a
“substantial risk of causing death or serious bodily injury,”
Smith, 394 F.3d at 693 (emphasis added), in the same way as
shooting a weapon or creating a blockade that a vehicle
traveling at high speeds cannot avoid.
The concurrence would create a blanket rule that using
“a vehicle to block the path of a quickly moving cyclist,
without allowing sufficient distance for the cyclist to avoid
12 SEIDNER V. DE VRIES
a collision, constitutes deadly force.” Concurrence at 27–28.
The concurrence cites statistics highlighting the
“vulnerability of cyclists” on the road and the numbers of
serious accidents between bicycles and vehicles. Id. We
agree that cyclists are vulnerable to suffering serious injury
in collisions with vehicles. That is why we conclude that de
Vries used intermediate force, or “force capable of inflicting
significant pain and causing serious injury.” Young, 655 F.3d
at 1161 (emphasis added). But to say that the vulnerability
of cyclists means that any roadblock a cyclist cannot avoid
is a use of deadly force goes too far. As previously explained,
we have not created blanket rules for most uses of force,
including police dogs and physical assaults. And we should
not do so for roadblocks used to stop bicycles. Not all
roadblocks used for this purpose present the same level of
risk, and the extent of the “risk of harm and the actual harm
experienced” are essential inquiries in determining whether
an officer’s actions were reasonable under the Fourth
Amendment. Williamson, 23 F.4th at 1152 (citations
omitted).
In sum, de Vries’s roadblock was a use of intermediate
force. The required “context-specific analysis” would be
rendered a nullity if we adopted a blanket rule that any
collision between a bicycle and an unavoidable vehicular
roadblock poses the same level of risk. Lombardo, 141 S. Ct.
at 2242.
2. Governmental Interest
Next, “we evaluate the state’s interests at stake by
considering ‘(1) how severe the crime at issue was,
(2) whether the suspect posed an immediate threat to the
safety of the officers or others, and (3) whether the suspect
was actively resisting arrest or attempting to evade arrest by
flight.’” Williamson, 23 F.4th at 1153 (citations omitted).
SEIDNER V. DE VRIES 13
These factors were established in Graham v. Connor,
490 U.S. at 396. “Among these considerations, the ‘most
important’ is the second factor—whether the suspect posed
an immediate threat to others.” Williamson, 23 F.4th at 1153
(quoting Isayeva, 872 F.3d at 947). But these factors are not
exclusive; they must be considered under the totality of
circumstances, including whether “less intrusive
alternatives” were available to law enforcement and whether
the suspect was given “proper warnings” before force was
used. Rice, 989 F.3d at 1121–22.
There can be no dispute that the second and most
important factor favors Seidner. He was riding his bicycle on
a quiet residential street and there is no evidence that he was
posing a risk to de Vries or anyone else, except perhaps
himself because he was riding at night without a light.
Regarding the first factor—the seriousness of the
offense—traffic violations are categorically minimal
offenses and “generally will not support the use of a
significant level of force.” Bryan, 630 F.3d at 828. But what
Seidner fails to acknowledge is that the roadblock was not
used until after he tried to pedal away and evade contact with
de Vries. This was a separate legal violation. Ariz. Rev. Stat.
§ 28-622.
The concurrence argues that we err in describing Seidner
as fleeing and that at summary judgment we must analyze
this case on the premise that he was not fleeing because he
disputed “that he intended to flee” and the video recording is
inconclusive. Concurrence at 30–32. Construing the facts in
the light most favorable to Seidner does not require us to turn
a blind eye to established facts that “clearly contradict[]” his
telling of events. Rice, 989 F.3d at 1120 (citation and internal
quotation marks omitted); see also Scott v. Harris, 550 U.S.
372, 380 (2007) (explaining that when one party’s story “is
14 SEIDNER V. DE VRIES
blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version of
the facts for purposes of ruling on a motion for summary
judgment”). The unchallenged videorecording shows that
after de Vries turned on his overhead lights and stopped and
got out of his patrol car, Seidner rode right past him. It shows
that Seidner swerved his bike in front of de Vries’s car and,
as the concurrence acknowledges, pedaled away hard. And
finally, the video recorded Seidner telling de Vries
immediately after the crash that he did not stop because he
“was scared.” This record establishes that Seidner was
evading contact with de Vries, notwithstanding Seidner’s
after-the-fact assertion that he did not intend to flee.
Seidner’s flight is part of factor three, making it an
independent consideration in assessing the strength of the
government’s interest in affecting an investigatory stop or
arrest. Williamson, 23 F.4th at 1153. A minor offense, even
a traffic violation, followed by an attempt to flee gives law
enforcement a greater measure of interest in affecting a stop.
County of Sacramento v. Lewis, 523 U.S. 833, 853 (1998)
(flight increases the government’s interest to use force to
“stop a suspect and show that flight from the law is no way
to freedom”); see also Miller v. Clark County, 340 F.3d 959,
965–66 (9th Cir. 2003) (finding that active flight at the time
of arrest favors the government’s use of force). Thus, factors
one and three favor the government to some degree.
We also consider whether there were “less intrusive
alternatives to the force employed and whether proper
warnings were given.” Rice, 989 F.3d at 1122. Seidner
contends that de Vries should have verbally commanded him
to stop, activated his patrol car’s sirens, or created the
roadblock further away to reduce the chance of a collision.
To begin with, Seidner is wrong in suggesting that de Vries
SEIDNER V. DE VRIES 15
failed to consider any alternatives to the roadblock. As
described, at the outset of the encounter, de Vries activated
his overhead lights, stopped his patrol car, and got out to talk
to Seidner. Had Seidner cooperated with de Vries’s efforts
to speak with him and not taken off, there would have been
no need for force. But he did not.
Moreover, we cannot ignore the reality that a person
fleeing on a bicycle poses unique challenges for law
enforcement because bicycles are faster than a person on
foot and they can maneuver through obstacles and conditions
that vehicles cannot. It is true that de Vries could have pulled
further ahead before blocking the roadway but doing so may
have resulted in Seidner changing course, not stopping.
These considerations highlight the “split-second judgments”
that officers must make in “rapidly evolving” situations.
Scott, 39 F.3d at 914.
Taking all the relevant considerations together, we
conclude that the government did have an interest justifying
some use of force to stop Seidner from fleeing even though
the incident initially arose from a minor traffic violation. To
conclude otherwise would hamstring law enforcement
officers in trying to hold suspects on bicycles accountable
for unlawful conduct.
3. Balance of Interests
Finally, we must weigh the intrusion into Seidner’s
Fourth Amendment rights against de Vries’s interest in
apprehending Seidner—that is, whether there is a reasonable
fit between de Vries’s use of force and Seidner’s conduct.
We have held that the use of intermediate force must be
justified by more than “a minimal interest” held by the
government. Bryan, 630 F.3d at 831. Absent Seidner’s
16 SEIDNER V. DE VRIES
attempt to flee, we would conclude that the officer’s interest
in this case was minimal. But as we have discussed, his flight
impacts the calculus of whether de Vries acted reasonably.
County of Sacramento, 523 U.S. at 853. And here we
conclude that the ultimate question of reasonableness is not
properly decided as a matter of law.
“[R]easonableness is often a question for the jury.”
Jackson v. City of Bremerton, 268 F.3d 646, 651 n.1 (9th Cir.
2001). Indeed, we have recognized that summary judgment
“should be granted sparingly” in excessive force cases.
Smith, 394 F.3d at 701 (citation omitted); Chew v. Gates,
27 F.3d 1432, 1443 (9th Cir. 1993) (“[W]hether a particular
use of force was reasonable is rarely determinable as a matter
of law.”). It is the province of the jury to decide what import
to give circumstances that “can be viewed in various ways.”
Glenn v. Washington County, 673 F.3d 864, 878 (9th Cir.
2011). And here, we cannot say that a jury would be
compelled to conclude that the way de Vries used his car to
stop Seidner from fleeing was reasonable. A jury could
conclude that de Vries should have taken additional steps to
stop Seidner before using an intermediate level of force
given Seidner’s minor offense and the lack of any safety risk
to de Vries or anyone else. It could also decide that cutting
in front of de Vries quickly and denying him a chance to stop
on his own was unreasonable under the circumstances. The
balancing of competing interests simply does not clearly
favor de Vries such that he is entitled to judgment as a matter
of law on this issue; this is a decision for the factfinder.
For all these reasons, we conclude that de Vries is not
entitled to summary judgment on whether there was a Fourth
Amendment violation.
SEIDNER V. DE VRIES 17
B. Clearly Established Right
Next, assuming Seidner can prove a Fourth Amendment
violation, we address whether, “at the time of [de Vries’s]
conduct, the law was sufficiently clear that every reasonable
official would understand that what he is doing is unlawful.”
Dist. of Columbia v. Wesby, __ U.S. __, 138 S. Ct. 577, 589
(2018) (internal quotation marks and citation omitted). The
answer to this question is no.
We do not define whether a violation is clearly
established by 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, 572 U.S. at 779).
Defining the clearly established law with “specificity is
especially important in the Fourth Amendment context,
where it is sometimes difficult for an officer to determine
how the relevant legal doctrine, here excessive force, will
apply to the factual situation the officer confronts.” City of
Tahlequah v. Bond, __ U.S. __, 142 S. Ct. 9, 11–12 (2021)
(cleaned up). “While there does not have to be a case directly
on point, existing precedent must place the lawfulness of the
particular action beyond debate.” City of Escondido, Cal. v.
Emmons, __ U.S. __, 139 S. Ct. 500, 504 (2019) (cleaned
up).
The district court relied on the Supreme Court’s decision
in Brower v. County of Inyo, in concluding that it was clearly
established “that unreasonably erecting a roadblock in a way
that is likely to cause a crash would support a claim for
excessive force.” In Brower, the question was whether a
roadblock created by placing an 18-wheeler across a
highway and concealing it from view of the suspect so that
he could not avoid hitting it was a seizure, not whether it was
an excessive use of force. 489 U.S. at 594–95; see also Scott
18 SEIDNER V. DE VRIES
v. Harris, 550 U.S. 372, 384 n.10 (2007) (“The only question
in Brower was whether a police roadblock constituted a
seizure under the Fourth Amendment.”). Brower did not
address the excessive-force question. Brower, 489 U.S.
at 599–600. Likewise, it “said nothing about qualified
immunity. And it said nothing about whether the officers had
‘fair notice’ their conduct was unreasonable. Nor did the
Court say anything about the reasonableness of the seizure.”
Morrow v. Meachum, 917 F.3d 870, 878 (5th Cir. 2019).
Seidner also points to several cases that rely on Brower
in holding that erecting a roadblock is a clearly established
Fourth Amendment violation when it is likely to cause an
unavoidable crash. For example, he cites the Sixth Circuit’s
Buckner decision, discussed above, which held “that an
officer violates a clearly established right under Brower if he
pulls his squad car onto a highway with knowledge or reason
to know that an approaching motorcyclist will not have time
or the ability to stop or otherwise safely avoid collision with
the car.” 36 F.3d at 540. Even assuming this was established
in Brower, which we do not find persuasive, this still does
not clearly establish that roadblocks placed where a bicycle
or other non-motorized vehicle cannot avoid them are an
excessive use of force.
There are material differences between motorized and
non-motorized vehicles. The most obvious difference is
speed and its resulting consequence on impact. Motorized
vehicles can go very fast, and high speeds were involved in
the cases that Seidner cites. See, e.g., Plumhoff, 572 U.S.
at 769 (suspect swerving through traffic at speeds over 100
miles per hour). A bicycle cannot reach the same speeds,
especially where a suspect is meandering in a residential area
rather than racing or even riding on a roadway with vehicular
traffic.
SEIDNER V. DE VRIES 19
The force from a bicycle with minimal weight that is
traveling at relatively low speeds is also different from the
force generated by a vehicle with significant weight that is
traveling at high speeds. Of course, the vulnerability of a
person riding a bicycle is greater as a general matter than a
person enclosed in a vehicle that contains safety features like
airbags and seatbelts. But all these variables demonstrate
why a decision in one case often cannot clearly establish the
nature of force used in a factually different case. Compare
Montamez v. City of Orlando, 678 F. App’x 905, 906 (11th
Cir. 2017) (unpublished) (holding that an officer pulling a
moving suspect off his bicycle was not excessive force), with
Toscano v. City of Fresno, No. 1:13-CV-01987-SAB, 2015
WL 4508582, at *6 (E.D. Cal. July 24, 2015) (unpublished)
(holding that an officer using his car as an impact weapon to
stop a fleeing bicyclist is excessive force). In any event,
Seidner has not cited, and we have not found, any case that
squarely establishes “beyond debate” that de Vries’s actions
constitute excessive force, City of Escondido, Cal., 139 S.
Ct. at 504, such that de Vries should have “underst[oo]d that
what he [wa]s doing [wa]s unlawful,” Wesby, 138 S. Ct.
at 589.
Seidner’s final argument, assuming Brower does not
control, is that the law is clearly established that
unnecessarily using deadly or significant force violates the
Fourth Amendment. He cites Tennessee v. Garner, 471 U.S.
1 (1985), for support. In that case, an officer fatally shot a
suspect in the back of the head after he fled from police on
foot and tried to climb a fence. Id. at 3–4. The Court
ultimately held that “[w]here the suspect poses no immediate
threat to the officer and no threat to others, the harm resulting
from failing to apprehend him does not justify the use of
deadly force to do so.” Id. at 11. The Supreme Court has
since noted that Garner’s “standards are cast at a high level
20 SEIDNER V. DE VRIES
of generality” and cautioned against using it to clearly
establish the law in factually distinguishable situations.
Rivas-Villegas v. Cortesluna, __ U.S. __, 142 S. Ct. 4, 8
(2021); see also Scott, 550 U.S. at 382 (“Garner did not
establish a magical on/off switch that triggers rigid
preconditions whenever an officer’s actions constitute
‘deadly force.’”).
However de Vries’s use of force in creating a roadblock
is quantified, the law as it existed at the time of the incident
did not clearly establish that his actions violated the Fourth
Amendment. Therefore, the district court’s summary
judgment ruling concluding that de Vries is not entitled to
qualified immunity must be
REVERSED.
CHRISTEN, Circuit Judge, concurring in the judgment:
I
I concur in the majority’s decision to reverse the district
court’s judgment. Given the controlling standards for
qualified immunity, the court correctly holds that no clearly
established law would have provided adequate notice to a
reasonable officer in Officer Jonathan de Vries’s position
that effectuating a traffic stop by sharply swerving a police
vehicle into the path of Preston Seidner’s bicycle constituted
the use of deadly force. I write separately because it is
important to establish that de Vries did employ this degree
of force, and under the circumstances here, the force violated
Seidner’s constitutional rights.
SEIDNER V. DE VRIES 21
II
On February 25, 2019, de Vries was on patrol in a police
SUV in Mesa, Arizona. 1 Around midnight, he saw Seidner
riding a bicycle on a well-lit residential street. The bicycle
did not have a light of its own, as required by section 28-
817(A) of the Arizona Revised Statutes. 2 De Vries
continued past Seidner and activated the SUV’s rooftop
lights. He did not use his siren or voice commands to direct
Seidner to stop. De Vries stopped in the roadway and began
to get out of the SUV, but Seidner continued to pedal past
the SUV and de Vries quickly jumped back into the driver’s
seat to chase him.
The SUV rapidly accelerated ahead of Seidner’s bicycle,
turned suddenly and sharply toward the curb, and stopped
semi-perpendicular to the bicycle’s path of travel. Almost
immediately, the bicycle collided with the SUV and Seidner
slammed into the handlebars and hit the SUV headfirst. De
Vries’s bodycam video recording shows Seidner moments
later lying on the ground, moaning. Seidner appears to lose
consciousness and approximately a minute later, the
video/audio recording shows de Vries asking Seidner, “why
you taking off?” Seidner responded that he was scared.
1
Because this is an appeal of an order denying qualified immunity,
we view the facts in the light most favorable to Seidner, see Scott v.
Harris, 550 U.S. 373, 378 (2007), unless record evidence, such as videos
or photographs, “clearly contradicts” Seidner’s version of the facts, see
Rice v. Morehouse, 989 F.3d 1112, 1120 (9th Cir. 2021) (quoting Scott
v. County of San Bernardino, 903 F.3d 943, 952 (9th Cir. 2018)).
2
Section 28-817(A) provides: “A bicycle that is used at nighttime
shall have a lamp on the front that emits a white light visible from a
distance of at least five hundred feet to the front . . . .” Ariz. Rev. Stat.
§ 28-817(A).
22 SEIDNER V. DE VRIES
Seidner suffered a dislocated wrist and injuries to his head
and chest as a result of the collision with the SUV. He was
taken from the scene in an ambulance.
Seidner filed a pro se complaint pursuant to 42 U.S.C.
§ 1983 alleging that de Vries violated his Eighth and
Fourteenth Amendment rights by effectuating a traffic stop
that caused Seidner to violently crash into the SUV. The
district court construed Seidner’s complaint to state a Fourth
Amendment excessive force claim against de Vries.
The majority decides that de Vries used intermediate
force rather than deadly force. I disagree. Under our
precedent, swerving a vehicle to block the path of a moving
cyclist without allowing sufficient distance for the cyclist to
avoid a collision constitutes deadly force, because it
undeniably involves the use of force that “creates a
substantial risk of causing death or serious bodily injury.”
See Smith v. City of Hemet, 394 F.3d 689, 693 (9th Cir.
2005). But however this amount of force is characterized,
the majority’s concessions inescapably lead to the
conclusion that the force de Vries used was constitutionally
excessive on the facts of this case. The majority recognizes:
(1) de Vries suspected Seidner of a very minor infraction,
riding his bike without a light in a well-lit area; (2) Seidner
posed no danger to de Vries or to anyone else; and
(3) Seidner was pedaling hard, and he was unable to avoid a
collision. Our court should take the opportunity to establish
that the maneuver de Vries employed to stop Seidner’s
bicycle constitutes the use of deadly force. I would also hold
that the use of that degree of force was constitutionally
excessive under the circumstances presented in this case.
SEIDNER V. DE VRIES 23
III
When evaluating excessive-force claims, courts
determine whether officers’ “actions [were] ‘objectively
reasonable’ in light of the facts and circumstances
confronting them.” Rice, 989 F.3d at 1121 (quoting Graham
v. Connor, 490 U.S. 386, 397 (1989)). “In assessing the
objective reasonableness of a particular use of force,” courts
consider: “(1) the severity of the intrusion on the individual’s
Fourth Amendment rights by evaluating the type and amount
of force inflicted, (2) the government’s interest in the use of
force, and (3) the balance between the gravity of the
intrusion on the individual and the government’s need for
that intrusion.” Id. (internal quotation marks omitted)
(quoting Lowry v. City of San Diego, 858 F.3d 1248, 1256
(9th Cir. 2017) (en banc)). Here, these factors establish that
de Vries’s use of a police vehicle to effectuate a traffic stop
of a bicycle by abruptly swerving into the bike’s path of
travel constituted excessive force.
1. Graham Factor One: Type and Amount of Force
Used
The first Graham factor considers the type and amount
of force used. To evaluate this factor, courts consider the
specific factual circumstances, id., including the “risk of
harm and the actual harm experienced,” Nelson v. City of
Davis, 685 F.3d 867, 879 (9th Cir. 2012). Generally, the
greater the risk of harm and actual harm suffered, the greater
the governmental interest must be to justify the use of force.
See id.Here, de Vries accelerated the police SUV past Seidner,
sharply and abruptly turned the SUV nearly perpendicular to
the bicycle’s path of travel, and stopped suddenly. The
majority decides this maneuver constituted intermediate
24 SEIDNER V. DE VRIES
force, not deadly force. But “all force—lethal and non-
lethal—must be justified by the need for the specific level of
force employed.” Bryan v. MacPherson, 630 F.3d 805, 825
(9th Cir. 2010).
“Deadly force” refers to “force that creates a substantial
risk of causing death or serious bodily injury.” Smith,
394 F.3d at 693 (emphasis added); see also Gutierrez v. City
of San Antonio, 139 F.3d 441, 446 (5th Cir. 1998) (same);
Est. of Phillips v. City of Milwaukee, 123 F.3d 586, 593 (7th
Cir. 1997) (same). Nearly forty years ago, the Supreme
Court recognized that deadly force is appropriate only when
“it is necessary to prevent [an] escape and the officer has
probable cause to believe that the suspect poses a significant
threat of death or serious physical injury to the officer or
others.” Tennessee v. Garner, 471 U.S. 1, 3 (1985)
(emphasis added). 3 Our court has acknowledged that an
automobile can inflict deadly force. See Acosta v. City &
County of San Francisco, 83 F.3d 1143, 1146 n.9 (9th Cir.
1996), abrogated on other grounds by Saucier v. Katz,
533 U.S. 194 (2001); United States v. Aceves-Rosales,
832 F.2d 1155, 1157 (9th Cir. 1987) (“It is indisputable that
an automobile can inflict deadly force on a person and that
it can be used as a deadly weapon.”). Other circuits agree.
See, e.g., Ludwig v. Anderson, 54 F.3d 465, 473 (8th Cir.
1995); Donovan v. City of Milwaukee, 17 F.3d 944, 949–50
(7th Cir. 1994) (concluding that striking a motorcycle with a
patrol car constituted “an application of deadly force” in part
because there was a “greater likelihood of death or great
3
The Supreme Court has since tempered Garner’s holding, see
Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (explaining Garner’s
standard is “cast ‘at a high level of generality’” (quoting Brosseau v.
Haugen, 543 U.S. 194, 199 (2004))), but this does not change the
definition of what constitutes deadly force.
SEIDNER V. DE VRIES 25
bodily harm resulting from a collision with a motorcycle, as
opposed to a car”).
Our court has had occasion to consider the meaning of
“serious bodily injury” in the criminal context. See, e.g.,
United States v. Mejia-Luna, 562 F.3d 1215, 1221 (9th Cir.
2009) (relying on the Sentencing Guidelines’ definition). 4
Black’s Law Dictionary defines “serious bodily injury” as
“[s]erious physical impairment of the human body; esp.,
bodily injury that creates a substantial risk of death or that
causes serious, permanent disfigurement or protracted loss
or impairment of the function of any body part or organ.”
Injury, BLACK’S LAW DICTIONARY (11th ed. 2019) (citing
MODEL PENAL CODE § 210.0(3)). The Ninth Circuit’s model
jury instructions define the phrase similarly: “bodily injury
that involves (1) a substantial risk of death; (2) extreme
physical pain; (3) protracted and obvious disfigurement; or
(4) protracted loss or impairment of the function of a body
part, organ, or mental faculty.” Manual of Model Criminal
Jury Instructions for the District Courts of the Ninth Circuit
§ 8.8 (2022 ed., updated Mar. 2022) (Assault Resulting in
Serious Bodily Injury).
In the district court, de Vries argued that his maneuver
did not constitute a seizure for purposes of the Fourth
Amendment, and he provided a declaration in support of his
summary judgment motion in which he stated: (1) he did not
intend to use the SUV as a roadblock or to stop Seidner; and
(2) he left about thirty feet between the SUV and Seidner’s
4
The Sentencing Guidelines define “serious bodily injury” as an
“injury involving extreme physical pain or the protracted impairment of
a function of a bodily member, organ, or mental faculty; or requiring
medical intervention such as surgery, hospitalization, or physical
rehabilitation.” U.S.S.G. § 1B1.1 cmt. n.1(M).
26 SEIDNER V. DE VRIES
bicycle before bringing the SUV to a stop and believed that
the bicycle would not have collided with the SUV if it had
working breaks. The majority correctly dismisses this
argument.
The first problem with de Vries’s argument is that the
Supreme Court held in Brower v. Inyo County, 489 U.S. 593,
598–99 (1989), that a roadblock does constitute a seizure.
The Court clarified in County of Sacramento v. Lewis,
523 U.S. 833, 844 (1998), that a seizure occurs “only when
there is a governmental termination of freedom of movement
through means intentionally applied.” Here, though
de Vries stated that he did not intend to create a roadblock,
it is clear that he was attempting to stop Seidner’s bicycle,
and the video shows that he intentionally swerved the SUV
into the path of the bicycle to do so. As such, this case falls
outside the hypothetical the Supreme Court provided in
Lewis, where a “‘pursuing police car sought to stop the
suspect only by . . . flashing lights and continuing pursuit,’
but accidentally stopped the suspect by crashing into him.”
Id. As the Eighth Circuit explained, “[a]n officer’s evil
intentions will not make a Fourth Amendment seizure out of
an objectively reasonable use of force, nor will an officer’s
good intentions make an objectively unreasonable use of
force constitutional.” Hawkins v. City of Farmington,
189 F.3d 695, 702 (8th Cir. 1999).
The second problem with de Vries’s argument is that his
subjective intent or belief is not relevant to the qualified
immunity analysis. See Jeffers v. Gomez, 267 F.3d 895, 911
(9th Cir. 2001); see also Brower, 489 U.S. at 598 (explaining
that it is “not . . . practicable to conduct [] an inquiry into
subjective intent . . . to distinguish between a roadblock that
is designed to give [an] oncoming driver the option of a
voluntary stop . . . and a roadblock that is designed precisely
SEIDNER V. DE VRIES 27
to produce a collision”). The objective evidence in this case
is that the SUV blocked Seidner’s path of travel abruptly and
without warning, and that Seidner’s bicycle was moving
quickly. In other words, rather than using his patrol car to
erect a roadblock that could be seen, anticipated, and
avoided, de Vries rapidly accelerated ahead of Seidner and
then sharply swerved in front of his path without warning.
The maneuver he employed is akin to the one in Buckner v.
Kilgore, 36 F.3d 536 (6th Cir. 1994), where the Sixth Circuit
affirmed the denial of qualified immunity to an officer who
used his squad car to erect a roadblock because some
witnesses recounted that the officer pulled out in front of a
motorcycle that had been traveling at a speed of up to 100
miles per hour just seconds before impact. Id. at 538–40. In
roadblock cases, the failure to leave sufficient opportunity to
avoid a collision makes all the difference. Id. The majority
recognizes that the collision between Seidner’s bike and de
Vries’s SUV happened almost immediately after the car
swerved in front of the bike. Seidner had every incentive to
avoid the SUV if it had been possible for him to do so, but
yet his bicycle slammed into the SUV.
De Vries’s bodycam video recording confirms that it was
plainly visible Seidner was not wearing a helmet, making de
Vries’s maneuver that much more dangerous. But even with
protective equipment, the human body and a bicycle are no
match for the metal behemoths that dominate our roads.
Serious bodily injuries are entirely predictable when
automobiles collide with cyclists. See, e.g., Surnow v.
Buddemeyer, 380 F. Supp. 3d 1058, 1061 (D. Haw. 2019).
The vulnerability of cyclists is such that death or serious
bodily injuries are foreseeable whether collisions are caused
28 SEIDNER V. DE VRIES
by squad cars hitting bicycles or bicycles hitting squad cars. 5
A report issued by the United States Consumer Product
Safety Commission explained that 486,703 emergency-
room visits in 2013 were attributed to bicycle accidents, and
the mechanisms of injuries included bicycles being hit by
cars, as well as bicycles hitting cars, bicycles colliding with
other stationary objects, and cyclists flipping or being
thrown over handle bars. 6 Under our precedent, swerving a
vehicle to block the path of a quickly moving cyclist, without
allowing sufficient distance for the cyclist to avoid a
collision, constitutes deadly force because it creates a
substantial risk of serious bodily injury. See Smith, 394 F.3d
at 693.
The majority agrees that the force de Vries used was
capable of inflicting significant pain and causing serious
injury, but “reject[s] the proposition that any collision with
a person riding a bicycle without a helmet inherently creates
a substantial risk of death or serious injury,” because
“surrounding circumstances still matter.” This is incorrect.
Surrounding circumstances can sometimes justify the use of
5
See Jennifer A. Brobst, Why Public Health Policy Should Redefine
Consent to Assault and the Intentional Foul in Gladiator Sports, 29 J.L.
& HEALTH 1, 10 (2015) (revealing that “[t]he highest number of sports-
related deaths are from bicycle riding (head injuries from collisions with
motor vehicles)”); NAT’L HIGHWAY TRAFFIC SAFETY ADMIN.,
TRAFFIC SAFETY FACTS: BICYCLISTS AND OTHER CYCLISTS 1–2 (Oct.
2021), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/
813197 (stating that 846 pedalcyclists were killed in the United States
in 2019, and an estimated 49,000 pedalcyclists were injured the same
year, due to collisions with motor vehicles).
U.S. CONSUMER PROD. SAFETY COMM’N, BICYCLE INJURIES SEEN
6
IN HOSPITAL EMERGENCY DEPARTMENTS, 2013, at 3, 8 (May 13, 2016),
https://www.cpsc.gov/s3fs-public/BicycleInjuriesSeeninHospitalEmerg
encyDepartments2013.pdf.
SEIDNER V. DE VRIES 29
deadly force, but surrounding circumstances cannot change
that this degree of force risks serious injury or death. The
majority offers no response to the statistics published by the
Department of Transportation and the United States
Consumer Product Safety Commission showing that the
highest number of sports-related deaths are attributed to
bicycle riding, and explaining that some fatal accidents arise
from bicycles hitting cars, some arise from cars hitting
bicycles, and some arise from bicyclists flipping or being
thrown over handle bars. These official statistics merely
quantify a point that is virtually self-evident: Anyone who
has ever flipped over the front end of a bicycle knows that
doing so risks serious bodily injury.
Because the amount and type of force de Vries used was
substantially likely to cause serious bodily injury, it
constituted deadly force. The first Graham factor requires
the conclusion that de Vries’s maneuver can only be justified
under the Fourth Amendment if the government had a
significant need to use this degree of force.
2. Graham Factor Two: de Vries’s Interest in the Use of
Force
The second Graham factor looks to the government’s
interest in the use of force. To assess this factor, courts
consider: (1) the severity of the crime; (2) whether the
suspect posed an immediate threat to the safety of the officer
or others; and (3) whether the suspect was actively resisting
arrest or attempting to evade arrest by flight. Mattos v.
Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (en banc). This
list is non-exhaustive. Rice, 989 F.3d at 1121. We consider
the totality of the circumstances, including the availability of
less intrusive alternatives to the force actually used and
whether proper warnings were given. Id. at 1121–22. The
most important consideration is “whether the suspect posed
30 SEIDNER V. DE VRIES
an immediate threat to the safety of the officers or others.”
Bryan, 630 F.3d at 826 (internal quotation marks omitted)
(quoting Smith, 394 F.3d at 702).
A. De Vries’s Use of Deadly Force Cannot be
Justified by Seidner’s Minor Traffic Infraction.
The majority concedes that the most important Graham
factor, whether Seidner posed a safety threat, favors Seidner,
and it is uncontested that de Vries did not suspect Seidner of
committing a serious crime when he activated the SUV’s
overhead lights to initiate a traffic stop. De Vries admitted
in his declaration that he turned on the SUV’s overhead
lights only because Seidner was riding his bicycle without
the proper lighting equipment, a non-jailable traffic violation
in Arizona. See Ariz. Rev. Stat. §§ 28-121(B), 28-817, 28-
1598. De Vries’s interest in stopping Seidner was further
reduced because Seidner’s infraction was a non-jailable
violation carrying a maximum penalty of $250. See Ariz.
Rev. Stat. § 28-1598. As the majority recognizes, de Vries’s
bodycam video recording confirms that Seidner was riding
in a well-lit area.
De Vries argues that Seidner also violated section 28-622
of the Arizona Revised Statutes, a class 2 misdemeanor that
criminalizes the failure to comply with an officer’s lawful
order, because Seidner rode past the patrol SUV after de
Vries activated its overhead lights. But in deciding that
Seidner “fled,” the majority improperly construes the video
in the light most favorable to de Vries. The video shows that
Seidner was pedaling hard, but it does not show that he sped
up or took evasive action after de Vries passed him and the
overhead lights were activated. The district court observed,
“[i]n the video, [Seidner] is riding up the street and does not
appear to be attempting to flee into an area that [de Vries]
could not access with his car.” Though the majority
SEIDNER V. DE VRIES 31
describes the video as “unchallenged,” turning on the
overhead lights and passing Seidner, without more, left some
ambiguity in de Vries’s intent. Was he taking off in response
to a call from dispatch? Was he signaling another vehicle
that was outside Seidner’s view? This ambiguity could have
been avoided if de Vries had verbally commanded Seidner
to stop. Because the record is inconclusive on this point, the
majority’s interpretation that Seidner was fleeing is
improper at the summary judgment stage. See Rice,
989 F.3d at 1120 (holding courts of appeals must view the
facts in the light most favorable to the non-moving party
unless record evidence “clearly contradicts” the non-moving
party’s version of the facts).
There is no question that the police have a significant
interest in apprehending those who violate the law, but it is
also undeniable that this interest decreases with less serious
violations. See Graham, 490 U.S. at 396 (holding “that the
right to make an arrest or investigatory stop necessarily
carries with it the right to use some degree of physical
coercion or threat thereof to effect it”); Hyde v. City of
Willcox, 23 F.4th 863, 872 (9th Cir. 2022) (explaining that
Ninth Circuit case law makes clear “officers must reassess
use of force in an evolving situation as the circumstances
change”); Bryan, 630 F.3d at 825 (observing that “all force
. . . must be justified by the need for the specific level of
force employed”). Traffic laws and laws ensuring people
comply with officers’ lawful orders are important, but
Seidner’s traffic violation—riding a bicycle without a light
in a well-lit area—was about as minor as they come, and we
have cautioned that traffic violations rarely justify the use of
significant force. See Bryan, 630 F.3d at 828.
In sum, because Seidner disputes that he intended to flee
and we construe disputed facts in the light most favorable to
32 SEIDNER V. DE VRIES
him, the most that can be said concerning this factor, even
after considering the video evidence, is that Seidner was
pedaling hard before the patrol car’s lights were activated
and he did not stop when the lights came on. Consideration
of the offense(s) in this case did not justify the use of deadly
force.
B. There Was No Immediate Safety Threat to de
Vries or Others.
De Vries makes no attempt to argue that Seidner posed a
safety threat to him by riding a bicycle without proper
lighting on what appears to have been a deserted street. At
oral argument, de Vries conceded that Seidner posed at most
a “minimal” threat to others, and only because de Vries gave
chase after Seidner pedaled past the SUV. If Seidner had
fled from the police, the foreseeable pursuit could have
endangered the safety of bystanders—except there were no
bystanders. Seidner was on a deserted street at midnight.
The majority agrees the evidence unambiguously
established that Seidner did not pose an immediate safety
threat to anyone. Thus, Graham’s most important factor
weighs against de Vries’s use of force that, in my view, very
apparently risked serious bodily injury or death.
C. Resisting Arrest or Flight
The parties dispute whether Seidner fled, but there is no
dispute that he pedaled past de Vries after the SUV’s
overhead lights were activated. Unless we view the video in
the light most favorable to de Vries, we cannot assume that
Seidner resisted arrest or fled, but even if the applicable
standard of review permitted that inference, this factor
cannot justify the use of deadly force because Seidner was
suspected of only a minor infraction and he posed no safety
SEIDNER V. DE VRIES 33
threat. See Bryan, 630 F.3d at 825 (holding all force must
be justified by its need).
D. Much Less Intrusive Alternatives Were Readily
Available and No Warnings Were Given.
The reasonableness of de Vries’s vehicle maneuver is not
assessed with 20/20 hindsight, Graham, 490 U.S. at 396, but
courts do consider “the availability of less intrusive
alternatives to the force employed and whether proper
warnings were given,” Rice, 989 F.3d at 1122. De Vries did
not verbally command Seidner to stop, and he gave no
warning to Seidner before suddenly swerving in front of the
bicycle. De Vries argues that blocking the roadway with the
SUV was “the least forceful way he could have stopped
[Seidner],” but this is clearly not the case. Nothing
prevented de Vries from pulling beside Seidner and ordering
him to stop. See Gravelet-Blondin v. Shelton, 728 F.3d
1086, 1092 (9th Cir. 2013) (explaining “the absence of a
warning of the imminent use of force, when giving such a
warning is plausible, weighs in favor of finding a
constitutional violation”). Most important, nothing
prevented de Vries from stopping the SUV farther in front of
Seidner to reduce the chance of a collision. This factor
weighs heavily against the use of deadly force because at
least two notably less intrusive alternatives were readily
available to de Vries’s sudden swerve in front of Seidner’s
bicycle.
3. Graham Factor Three: There is Little to Balance.
The final step in the Graham analysis requires balancing
the gravity of the intrusion on the individual against the
government’s need for that intrusion. See Rice, 989 F.3d
at 1121. De Vries’s use of his vehicle to effectuate a traffic
stop of Seidner’s bicycle constituted the use of deadly force
34 SEIDNER V. DE VRIES
because it created “a substantial risk of causing death or
serious bodily injury.” See Smith, 394 F.3d at 693. But that
only accounts for Graham’s first factor: the type and amount
of force used. Depending on the government’s need for the
intrusion, the use of deadly force is sometimes justified.
Under the circumstances of this case, however, the other
Graham factors provide a woefully insufficient
counterweight to justify the use of this degree of force.
We have made clear that any force must be balanced by
the need for that force. See Meredith v. Erath, 342 F.3d
1057, 1061 (9th Cir. 2003); see also Bryan, 630 F.3d at 825(explaining that “all force . . . must be justified by the need
for the specific level of force employed”). De Vries argues
that his use of force was reasonable because “far more
serious uses of force” have been found reasonable to stop
fleeing motorists. But Seidner was not a fleeing motorist.
(Indeed, under the appropriate standard of review, our court
is not even permitted to treat him as a fleeing bicyclist.)
De Vries primarily relies on two out-of-circuit cases,
neither of which aid his cause. See Abney v. Coe, 493 F.3d
412 (4th Cir. 2007); Coitrone v. Murray, 642 F. App’x 517
(6th Cir. 2016) (unpublished). 7 In Abney, an officer tried to
stop a motorcyclist for a traffic violation, but the
motorcyclist failed to stop and proceeded to run another car
off the road. 493 F.3d at 414. The motorcyclist wove
through oncoming traffic, on a highway and other roads, in
a chase that went on for eight miles. Id. at 413–14. The
7
The Coitrone case is unpublished, but the Sixth Circuit “permits
citation of any unpublished [cases],” Sixth Circuit Rule 32.1(a), and may
find them persuasive, see United States v. Keith, 559 F.3d 499, 505 (6th
Cir. 2009). Unpublished Sixth Circuit cases have no precedential
authority. See id.SEIDNER V. DE VRIES 35
parties in Abney disputed whether the officer intentionally
used his vehicle to stop the motorcyclist, but their vehicles
collided and the motorcyclist brought a § 1983 claim. Id.
at 413–15, 417 n.1. The court deemed the officer’s use of
deadly force justified because, even if the officer had
intentionally used his vehicle to stop the motorcyclist, the
motorcyclist’s flight endangered the lives of others. Id. at
420–21.
Coitrone involved similarly dangerous surrounding
circumstances that justified the use of deadly force. An
officer tried to pull over a motorcyclist after running his
license plate and discovering outstanding warrants for
kidnaping, rape, and other serious crimes. Coitrone, 642 F.
App’x at 518. The motorcyclist failed to stop and exceeded
the speed limit as he traveled in and out of the wrong lane to
pass vehicles. Id. The parties in Coitrone disputed whether
a second officer intentionally used his car to stop the
motorcyclist, but their vehicles crashed. See id. at 519–20.
Whether the police car struck the motorcycle or the
motorcycle struck the police car, the driver was launched
into a cement culvert. See id. at 519. The motorcyclist
recovered from a coma and brought a § 1983 claim. Id. Not
surprisingly, the court determined that the officer’s
potentially intentional use of deadly force was objectively
reasonable because Coitrone led the police on a chase that
substantially and immediately risked serious physical injury
to others. Id. at 521.
The circumstances surrounding Seidner’s arrest were
nothing like those in Abney or Coitrone. Far from weaving
in and out of oncoming traffic on a motorcycle, exceeding
the speed limit, and causing a chase that endangered other
lives, Seidner was riding a bicycle on a well-lit deserted
street, posing no safety threat to anyone.
36 SEIDNER V. DE VRIES
At the time de Vries stopped Seidner, it was clearly
established that a seizure occurs when the government
terminates freedom of movement through means
intentionally applied. See Lewis, 523 U.S. at 844. This
includes the use of roadblocks where suspects in motorized
vehicles do not have an opportunity to avoid a collision. See
Brower, 489 U.S. at 596–99. On appeal, de Vries wisely
abandons the argument that he did not intend to seize
Seidner, but he continues to argue that the force he used was
reasonable.
I agree with the majority that we have no case law
addressing the use of a police car to stop a bicycle, but we
have an obligation to provide guidance where it is possible
to do so, and I do not see room for debate about whether
using an SUV to block the path of a bicycle, without
allowing sufficient distance for the bike to avoid a collision,
“creates a substantial risk of causing death or serious bodily
injury.” I would so hold.
I would also rule that de Vries’s use of force was
constitutionally excessive as a matter of law given
application of the Graham factors to the surrounding
circumstances. 8 Accordingly, I respectfully dissent from the
majority’s Fourth Amendment excessive force analysis.
8
“Summary judgment at the appellate level is proper even though
the prevailing party on the appeal did not move under Rule 56.” Wright
& Miller, 10A Fed. Prac. & Proc. Civ. § 2716 (4th ed.). Indeed, we have
ruled that an officer’s use of force was excessive even when the plaintiff
did not file a cross-motion for summary judgment. See, e.g., Deorle v.
Rutherford, 272 F.3d 1272, 1284 (9th Cir. 2001) (determining that an
officer’s deadly force was excessive on appeal); see also Donovan,
17 F.3d at 949–51 (same).