Lee Rice, II v. Dale Morehouse ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEE ARTHUR RICE II, No. 18-35459
Plaintiff-Appellant,
D.C. No.
v. 1:13-cv-00441-
BLW
DALE MOREHOUSE; NICK SHAFFER;
JEFFREY A. HILL; MARK
ABERCROMBIE, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted November 8, 2019
Portland, Oregon
Filed March 8, 2021
Before: Ronald Lee Gilman, * Richard A. Paez, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Paez
*
The Honorable Ronald Lee Gilman, United States Circuit Judge
for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 RICE V. MOREHOUSE
SUMMARY **
Civil Rights
The panel reversed the district court’s summary
judgment in favor of police officers on the basis of qualified
immunity, and remanded, in an action brought pursuant 42
U.S.C. § 1983 alleging that defendants used excessive force
when they executed a take-down maneuver while holding
plaintiff in a “police lead” position; that is, they tripped
plaintiff so that he would fall to the ground as they held his
arms behind his back.
The panel first rejected defendants’ contention that
plaintiff’s Notice of Appeal failed to comply with the
requirements of Federal Rule of Appellate Procedure 3(c)
because plaintiff did not specifically indicate that he was
appealing from the district court’s summary judgment order
granting defendants’ motion for summary judgment on the
take-down. The panel concluded that plaintiff provided
sufficient notice to defendants of the intended scope of his
appeal and defendants did not suffer prejudice: they had an
opportunity to, and actually did, fully brief the issue.
Viewing the facts in the light most favorable to plaintiff,
as was required, the panel concluded that a reasonable jury
could find that plaintiff engaged in passive resistance and
that defendants’ take-down of plaintiff involved
unconstitutionally excessive force. Furthermore, because
the right to be free from “the application of non-trivial force
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
RICE V. MOREHOUSE 3
for engaging in mere passive resistance” was clearly
established before December 2011, defendants were not
immune from suit.
COUNSEL
Craig H. Durham (argued), Ferguson Durham PLLC, Boise,
Idaho, for Plaintiff-Appellant.
Erica J. White (argued), Heather H. McCarthy, and
Catherine A. Freeman, Deputy Prosecuting Attorneys; Jan
M. Bennetts, Ada County Prosecuting Attorney, Boise,
Idaho, for Defendants-Appellees Dale Morehouse and Nick
Shaffer.
Scott B. Muir (argued), Deputy City Attorney; Boise City
Attorney’s Office, Boise, Idaho, for Defendants-Appellees
Mark Abercrombie and Jeffrey A. Hill.
OPINION
PAEZ, Circuit Judge:
In the early morning of December 26, 2011, while
driving with his family on Interstate 84 near Boise, Idaho,
Lee Arthur Rice II was stopped by a state police officer for
failing to signal for a full five seconds before changing lanes.
Because he believed that there was no basis for the stop, Rice
declined to give the officer his driver’s license and car
registration and repeatedly asked to speak to the officer’s
supervisor. The officer radioed for support, and over a dozen
officers responded. Several officers pulled Rice out of the
car. As they led him to the rear of the car, they tripped him
4 RICE V. MOREHOUSE
so that he fell to the ground, pinned him down, and
handcuffed him. Rice fell on his face and suffered long-term
physical injuries and emotional distress as a result of the
encounter. He ultimately filed suit against the officers under
42 U.S.C. § 1983 for violating his constitutional rights,
including his Fourth Amendment right to be free from
unreasonable seizure.
Rice appeals the district court’s order granting partial
summary judgment on the basis of qualified immunity in
favor of the officers who tripped him to the ground. Because
genuine disputes of material fact preclude summary
judgment, and the applicable law was clearly established at
the time of the incident, we reverse. 1
I. BACKGROUND
A. FACTUAL BACKGROUND
The following facts were either undisputed at summary
judgment or, if disputed, are recounted in the light most
favorable to Rice, the non-moving party.
On December 26, 2011, at about 3:30 a.m., Rice was
driving with his wife and her two teenage daughters when
Idaho State Police Officer Janet Murakami stopped him.2
1
Rice also appeals the district court’s pretrial rulings precluding his
expert witnesses from testifying at trial on other aspects of his Fourth
Amendment excessive force claim. We affirm the district court’s
evidentiary rulings in a memorandum disposition filed concurrently with
this opinion.
2
Murakami’s dash-mounted video camera provides a visual account
of all of the events described here. See Joint Exhibit 1001 (“Jt Ex.
1001”). Murakami’s microphone was turned on around the time she
announced that Rice was under arrest. Jt Ex. 1001 at 5:50.
RICE V. MOREHOUSE 5
According to Murakami, she initiated the traffic stop
because Rice failed to signal for five seconds before
changing lanes, Idaho Code § 49-808(1)–(2), and she
suspected that Rice was driving under the influence. Rice
pulled over to the right shoulder of the freeway, just over the
fog line. 3 Murakami approached the passenger’s side of the
car and asked for Rice’s license, car registration, and proof
of insurance. Rice showed Murakami his license through the
window but declined to give Murakami the other documents.
Murakami returned to her car and requested a “Code 3
assist” through her radio. According to the government’s
expert at summary judgment, a “Code 3” request is
considered the “most urgent” request for backup officers and
generally requires that they respond immediately and with
lights and sirens running.
While assistance was on the way, Murakami re-
approached Rice’s car and again asked him for his license,
registration, and proof of insurance. He declined. Murakami
then walked to the driver’s side of the car, opened the door,
instructed Rice to exit, and announced that Rice was under
arrest for “obstruction and delay.” Rice provided his name
but insisted “I will not get out of this car.”
Murakami returned to her car and made two additional
radio calls. In the second call, she radioed an update 4 and
3
In later criminal proceedings against Rice, the state court declared
the stop unlawful, and the prosecution dismissed all charges against
Rice.
4
As she explained at trial, Murakami radioed a “Code 4” update
because she “was trying to tell my dispatch – because I could hear all the
sirens from everywhere – that I just – I was okay, not to worry about me.
I just needed one or two units.” A Code 4 indicated “she was no longer
in danger.” But the uncontroverted evidence at trial was that the arriving
6 RICE V. MOREHOUSE
stated “just uh waiting for my support units to get here before
I extract this uh driver.” Moments later, several police
officers arrived, including Defendants-Appellees Dale
Morehouse and Nick Shaffer. Murakami spoke to the
arriving officers and explained:
MURAKAMI: K he’s just not wanting, sir,
yeah just one unit’s necessary – he’s just not
wanting to comply with my instructions.
UNNAMED OFFICER: Okay.
MURAKAMI: He’s already been told he’s
under arrest.
UNNAMED OFFICER: Okay.
MURAKAMI: All I wanted was his license,
so I’m just going to need somebody to help
me get him out of the car. 5
UNNAMED OFFICER: Okay.
Although the record does not clearly identify which officers
Murakami was speaking to, in their declarations in support
of summary judgment, Morehouse and Shaffer paraphrased
Murakami’s comments in describing what they heard.
officers, who used different radio frequencies, did not receive that
update.
5
In the dash-cam video, Murakami can be seen walking toward
Rice’s car, but facing away from it, as she gave this final instruction.
RICE V. MOREHOUSE 7
To determine the lawfulness of the officers’ conduct
throughout the encounter, the district court divided the
events that followed into three stages: (1) officers pulling
Rice from his car, (2) officers implementing a “take-down”
of Rice, and (3) officers holding Rice on the ground in a
“scrum” 6 before handcuffing him. For clarity, we adopt the
same three stages here.
1. The Removal
Murakami re-approached Rice’s car from the driver’s
side, with Morehouse directly behind her. Murakami
repeatedly instructed Rice to get out of the car and threatened
to break his car window if he did not. Rice declined and
repeatedly asked to speak to Murakami’s supervisor, but did
roll down his window and unlock the car. Murakami opened
Rice’s door, and, together, Murakami and Morehouse pulled
him out from the car. In his declaration offered in opposition
to summary judgment, Rice maintains that he did not resist
the officers as they pulled him out of the car.
2. The Take-Down
After Murakami and Morehouse pulled Rice from the
car, they attempted to hold Rice in a “police lead” position,
grabbing his wrist with one hand and triceps with the other.
Morehouse grabbed Rice’s right arm, while Murakami
grabbed his left. When Murakami was unable to grip Rice’s
arm, Shaffer stepped in, took Rice’s left arm, and assumed
the police lead position. Rice again maintains that he did not
resist the officers. Nonetheless, as they approached the rear
6
A “scrum” is “[a] chaotic struggle or tussle, esp. one involving
large numbers of people; a mêlée; a battle.” See Scrum, Oxford English
Dictionary (3d ed. 2018), https://www.oed.com/view/Entry/173724 (last
visited July 15, 2020).
8 RICE V. MOREHOUSE
of the car, Shaffer and Morehouse tripped Rice and forcibly
threw him to the ground using a “take-down” maneuver.
Rice landed face-first on the pavement and suffered extreme
pain.
3. The Scrum
While Rice lay on the ground, officers repeatedly struck
and kneed him, wrenched his arms and shoulders, and
twisted his fingers. He repeatedly asked “what are you
doing?” and “why are you doing this?” Eventually, the
officers handcuffed Rice, picked him up from the pavement,
and took him to Murakami’s car.
Criminal misdemeanor charges were filed against Rice
but were later dismissed after the state court concluded that
Murakami lacked reasonable suspicion or probable cause to
stop Rice.
B. PROCEDURAL HISTORY
In 2013, Rice filed a pro se suit in the District Court for
the District of Idaho against the officers involved in the
arrest. His primary claims involved violations of his Fourth
Amendment right to be free from excessive force and were
brought against defendant Officers Murakami, Morehouse,
Shaffer, Mark Abercrombie, and Jeffrey Hill. After Rice
obtained counsel, defendants filed motions for summary
judgment. The district court ruled on the motions in
December 2014 and April 2015. The court (1) denied
Murakami qualified immunity as to her Code 3 call, but
granted her motion in all other respects; (2) denied
Morehouse and Shaffer qualified immunity as to their
involvement in the scrum, but granted qualified immunity as
to the take-down; and (3) denied qualified immunity to the
RICE V. MOREHOUSE 9
other officers involved in the scrum, including Abercrombie
and Hill.
Defendants appealed the qualified-immunity rulings. In
November 2016, we affirmed except as to Murakami. We
held that she was entitled to qualified immunity for her Code
3 call. Rice v. Murakami, 671 F. App’x 472 (9th Cir. 2016).
As the panel explained, “[t]hough it is true that a person may
be held responsible for the natural consequences of her
actions, it is far from established that an officer should have
reasonably foreseen that other officers responding to a call
would use excessive force . . . .” Id. at 473.
The case proceeded to trial against defendants
Morehouse, Shaffer, Abercrombie, and Hill for their alleged
use of excessive force during the scrum. Following the
presentation of all evidence by Rice, the district court
granted judgment as a matter of law under Federal Rule of
Civil Procedure 50(a) to all defendants except Abercrombie.
The jury ultimately returned a verdict in favor of
Abercrombie.
Rice filed a notice of appeal without counsel. We
subsequently appointed pro bono counsel to represent him
on appeal.
II. JURISDICTION
As a threshold matter, we address whether Rice’s Notice
of Appeal complies with the requirements of Federal Rule of
Appellate Procedure 3(c) such that we have jurisdiction.
Morehouse and Shaffer argue that it does not because Rice
did not specifically indicate that he was appealing from the
district court’s April 2015 summary judgment order granting
their motion for summary judgment on the take-down. We
disagree.
10 RICE V. MOREHOUSE
To take an appeal as of right in federal court, a party must
file a notice of appeal within the time allowed by Rule 4.7
Fed. R. App. P. 3(a). The notice must, among other things,
“designate the judgment, order, or part thereof being
appealed.” Fed. R. App. P. 3(c)(1)(B).
Although Rule 3’s requirements are jurisdictional,
Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 (1988),
“the Rule cautions against their formalistic application,”
West v. United States, 853 F.3d 520, 522 (9th Cir. 2017)
(citing Fed. R. App. P. 3(c)(4)). When a party’s intent to
appeal is objectively clear, “there are neither administrative
concerns nor fairness concerns that should prevent the
appeal from going forward.” Fed. R. App. P. 3(c) advisory
committee’s note to 1993 amendments. Thus, “[w]hen a
party seeks to argue the merits of an order that does not
appear on the face of the notice of appeal, we consider:
(1) whether the intent to appeal a specific judgment can be
fairly inferred and (2) whether the appellee was prejudiced
by the mistake.” West, 853 F.3d at 523 (quoting Le v. Astrue,
558 F.3d 1019, 1022–23 (9th Cir. 2009)) (internal quotation
marks omitted). “In determining whether ‘intent’ and
‘prejudice’ are present, we apply a two-part test: first,
whether the affected party had notice of the issue on appeal;
and, second, whether the affected party had an opportunity
to fully brief the issue.” Id. at 523–24 (quoting Ahlmeyer v.
Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 (9th Cir.
2009)).
7
Under Rule 4, generally “the notice of appeal required by Rule 3
must be filed with the district clerk within 30 days after entry of the
judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). The time
is extended for all parties and runs from the entry of an order disposing
of any motion under Federal Rules of Civil Procedure 50(b), 52(b), 54,
59, or 60. Fed. R. App. P. 4(a)(4).
RICE V. MOREHOUSE 11
Here, we first conclude that Rice provided sufficient
notice to defendants of the intended scope of his appeal.
Rice’s Notice of Appeal states that he is appealing “from the
final judgment” without limitation, which thus fairly covers
portions of the judgment not specifically mentioned. See id.
at 523. 8 In addition, Rice’s take-down was a central issue in
the district court and in Rice’s opening brief here—factors
demonstrating Rice’s intent to appeal the summary-
judgment order. See One Indus., LLC v. Jim O’Neal Distrib.,
Inc., 578 F.3d 1154, 1159 (9th Cir. 2009). Thus, based on
the broad language of Rice’s Notice of Appeal, as well as the
centrality of the issue in the district court and on appeal, we
conclude that Rice’s intent to appeal the order granting
partial summary judgment was clear. 9
8
Although not at issue here, we note that the order granting partial
summary judgment in favor of Morehouse and Shaffer became final and
appealable once it merged with the final judgment entered after trial. See
Am. Ironworks & Erectors, Inc. v. N. Am. Const. Corp., 248 F.3d 892,
897 (9th Cir. 2001) (“A necessary corollary to the final judgment rule is
that a party may appeal interlocutory orders after entry of final judgment
because those orders merge into that final judgment.”).
9
Morehouse and Shaffer nonetheless argue that Rice’s “Appendix”
of the “Issues Raised on Appeal” should limit how we construe the
Notice. This argument fails for several reasons. Most importantly,
Rice’s list of issues was not an appendix to the Notice of Appeal itself,
but rather to his affidavit in support of his motion to proceed in forma
pauperis (“IFP”). Although the IFP application and appendix were filed
simultaneously with the Notice of Appeal, Morehouse and Shaffer do
not cite any authority (nor are we aware of any) suggesting that the list
of issues in an IFP application limits the issues or orders that may be
raised on appeal.
Moreover, even if we were to consider Rice’s list of issues along
with his Notice of Appeal, his failure to specifically cite the April 2015
summary-judgment order is not dispositive. See Peng v. Mei Chin
12 RICE V. MOREHOUSE
Second, we conclude that Morehouse and Shaffer did not
suffer prejudice: they both had an opportunity to, and
actually did, fully brief the issue. Although Morehouse and
Shaffer argue that they suffered prejudice because of the
delay—citing the eleven months between receiving the
Notice of Appeal and Rice’s opening brief—they do not say
how they were harmed. Moreover, given that Rice could not
have appealed the order granting partial summary judgment
until after judgment was issued following the jury trial three
years later, 10 it is hard to see how the relatively brief period
of additional time prejudiced them.
Penghu, 335 F.3d 970, 975 (9th Cir. 2003) (holding that dismissal of the
appeal was inappropriate where appellant failed to attach to his notice of
appeal the district court’s order granting defendant qualified immunity).
The cases Morehouse and Shaffer rely on involved notices of appeal with
a more explicit accounting of the orders challenged on appeal. See
Havensight Capital LLC v. Nike, Inc., 891 F.3d 1167, 1171 (9th Cir.
2018) (concluding that notice of appeal did not intend to appeal unnamed
orders where the notice named, cited, and attached other orders);
Valadez-Lopez v. Chertoff, 656 F.3d 851, 859 n.2 (9th Cir. 2011)
(concluding that notice of appeal did not intend to appeal grant of
summary judgment in favor of one deputy public defender defendant
where the notice specifically named the order granting summary
judgment in favor of a different deputy public defender defendant). The
notices of appeal in those cases were also filed by represented parties.
Even if a reviewing court can ordinarily draw a negative inference from
a party’s list of the orders he intends to challenge, we decline to apply
such an inference to Rice’s pro se list of issues in his IFP application.
10
Morehouse’s and Shaffer’s argument that Rice should have
appealed the grant of partial summary judgment sooner is without merit.
A district court’s grant of summary judgment based on qualified
immunity is not reviewable as a “collateral order.” See Branson v. City
of Los Angeles, 912 F.2d 334, 335 (9th Cir. 1990). Moreover, an order
granting partial summary judgment is not a final appealable order unless
it “has the effect of completely disposing of the action.” Charles A.
Wright, Arthur R. Miller & Mary K. Kane, 10A Fed. Prac. & Proc.
RICE V. MOREHOUSE 13
In sum, Morehouse and Shaffer “had notice of the issue
on appeal” and “an opportunity to fully brief the issue.”
West, 853 F.3d at 523–24. Their answering brief on appeal
responds fully to Rice’s challenge to the district court’s order
granting partial summary judgment and qualified immunity
to Morehouse and Shaffer. See id. Accordingly, Rice has
sufficiently presented the issue for appeal, see id. at 524,
which we turn to next.
III. STANDARD OF REVIEW
We review de novo a district court’s grant of summary
judgment. S.R. Nehad v. Browder, 929 F.3d 1125, 1132 (9th
Cir. 2019). Summary judgment is proper where the movant
shows, by citation to the record, that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law. Glenn v. Washington Cnty.,
673 F.3d 864, 870 (9th Cir. 2011); Fed. R. Civ. P. 56(a), (c).
In qualified-immunity cases, “we view the facts in the light
most favorable to the nonmoving party.” Tuuamalemalo v.
Greene, 946 F.3d 471, 476 (9th Cir. 2019) (per curiam)
(quoting Plumhoff v. Rickard, 572 U.S. 765, 768 (2014)).
We do not credit a party’s version of events that the record,
such as an unchallenged video recording of the incident,
“quite clearly contradicts.” Scott v. Cnty. of San Bernardino,
903 F.3d 943, 952 (9th Cir. 2018) (quoting Scott v. Harris,
550 U.S. 372, 378 (2007)). We also review de novo an
§ 2715 (4th ed.). Here, the district court’s order granted summary
judgment to Morehouse and Shaffer regarding their take-down of Rice
but denied summary judgment on the alleged use of excessive force
during the ensuing scrum. Thus, the summary-judgment ruling did not
completely dispose of the action as to Morehouse and Shaffer, and Rice
could not have appealed the order sooner.
14 RICE V. MOREHOUSE
officer’s entitlement to qualified immunity. S.R. Nehad,
929 F.3d at 1132.
IV. ANALYSIS
In reviewing whether Morehouse and Shaffer are entitled
to summary judgment on the basis of qualified immunity, we
ask two questions. Tuuamalemalo, 946 F.3d at 476–77; see
also C.V. ex rel. Villegas v. City of Anaheim, 823 F.3d 1252,
1255 (9th Cir. 2016). First, “[t]aken in the light most
favorable to the party asserting the injury, do the facts
alleged show the officer’s conduct violated a constitutional
right?” Tuuamalemalo, 946 F.3d at 476 (quoting Scott,
550 U.S. at 377). Second, “[i]f the court finds a violation of
a constitutional right, the next, sequential step is to ask
whether the right was clearly established in light of the
specific context of the case.” Id. (internal quotation marks
and ellipses omitted) (quoting Scott, 550 U.S. at 377). The
district court answered no to both questions. For the reasons
that follow, we answer both questions in the affirmative.
A. EXCESSIVE FORCE
In evaluating a Fourth Amendment claim of excessive
force, we ask “whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances
confronting them.” Graham v. Connor, 490 U.S. 386, 397
(1989) (citations omitted). “In assessing the objective
reasonableness of a particular use of force, we consider:
(1) ‘the severity of the intrusion on the individual’s Fourth
Amendment rights by evaluating the type and amount of
force inflicted,’ (2) ‘the government’s interest in the use of
force,’ and (3) the balance between ‘the gravity of the
intrusion on the individual’ and ‘the government’s need for
that intrusion.’” Lowry v. City of San Diego, 858 F.3d 1248,
1256 (9th Cir. 2017) (en banc) (quoting Glenn, 673 F.3d
RICE V. MOREHOUSE 15
at 871). We must judge the reasonableness of a particular
use of force “from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396.
1. The Type and Amount of Force Used
Characterizing the amount of a non-lethal force can often
depend on specific factual circumstances. See, e.g., Lowry,
858 F.3d at 1256 (“Our precedent establishes that
characterizing the quantum of force with regard to the use of
a police dog depends on the specific factual
circumstances.”); Palmer v. Sanderson, 9 F.3d 1433, 1436
(9th Cir. 1993) (holding that officer who fastened handcuffs
so tightly around plaintiff’s wrist that it caused pain and left
bruises for weeks was not entitled to qualified immunity).
The same is true involving take-downs. See, e.g.,
Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir.
2007); Santos v. Gates, 287 F.3d 846, 855 (9th Cir. 2002).
Morehouse and Shaffer executed the take-down
maneuver while holding Rice in a “police lead” position; that
is, they tripped Rice so that he would fall to the ground as
they held his arms behind his back. Rice explained in his
declaration that he was tripped and “forcibly” thrown to the
ground, face-first onto the pavement. Due in part to the take-
down, Rice declared that he suffered “extreme pain”
immediately following his arrest and long-term physical
pain for which he received medical treatment. Thus,
assuming Rice’s version of the material facts viewed in the
light most favorable to him, see Tuuamalemalo, 946 F.3d
at 478, we agree with the district court that Morehouse and
Shaffer’s take-down involved a “substantial” and
“aggressive use” of force. Cf. Santos, 287 F.3d at 853(describing a take-down maneuver as “quite severe”). Its
use, like any, “must be justified by the need for the specific
16 RICE V. MOREHOUSE
level of force employed.” Bryan v. MacPherson, 630 F.3d
805, 825 (9th Cir. 2010).
2. The State’s Interest
Under Graham, we evaluate the state’s interests at stake
by considering “(1) how severe the crime at issue was,
(2) whether the suspect posed an immediate threat to the
safety of the officers or others, and (3) whether the suspect
was actively resisting arrest or attempting to evade arrest by
flight.” Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir.
2011) (en banc). Among these considerations, the “most
important” is the second factor—whether the suspect posed
an immediate threat to others. Isayeva v. Sacramento
Sheriff’s Dep’t, 872 F.3d 938, 947 (9th Cir. 2017). These
factors are non-exhaustive, and we examine the totality of
the circumstances, Bryan, 630 F.3d at 826, including the
availability of less intrusive alternatives to the force
employed and whether proper warnings were given, Glenn,
673 F.3d at 872.
Before turning to these factors, we summarize the “facts
and circumstances confronting” Morehouse and Shaffer as
they arrived. Graham, 490 U.S. at 397. The district court
relied heavily on Murakami’s Code 3 as communicating a
“life-or-death alert” that Morehouse and Shaffer “had no
time” to independently evaluate. But the court overlooked
Murakami’s instructions to the arriving officers that
effectively downgraded her Code 3 call. 11 She explained to
them that “just one unit’s necessary.” To justify the need for
11
Indeed, as revealed at trial, Murakami attempted to amend the
Code 3 by later radioing a “Code 4” call, which meant “she was no longer
in danger.” Her “Code 4” update can be heard in the dash-cam video.
But because the arriving officers used a different radio frequency than
the Idaho State Police, they did not receive the “Code 4” radio update.
RICE V. MOREHOUSE 17
limited assistance, she explained “he’s just not wanting to
comply with my instructions.” Murakami then added, with
her back to Rice’s car, “He’s already been told he’s under
arrest,” and “All I wanted was his license, so I’m just going
to need somebody to help me get him out of the car.”
Another officer can be heard responding “okay” to each of
Murakami’s statements. And based on Morehouse’s and
Shaffer’s declarations, which paraphrase Murakami’s
comments to the arriving officers, a jury could find that the
officers heard those statements. In light of these facts, a jury
could reasonably find that Murakami’s comments
deescalated the nature of the situation and that reasonable
officers in the position of Morehouse and Shaffer would not
have viewed the situation as a Code 3 event. 12
In addition, officers have a duty to independently
evaluate a situation when they arrive, if they have an
opportunity to do so. See Deorle v. Rutherford, 272 F.3d
1272, 1277 (9th Cir. 2001) (explaining that officer, although
responding to a Code 3 call, had sufficient time to determine
whether there was an immediate need to use non-lethal
force). A reasonable jury could find that Morehouse and
Shaffer had such an opportunity. Morehouse and Shaffer
received the radio call for support and drove to the scene
minutes later. They were among seventeen officers who
responded to the call. Morehouse and Shaffer parked on the
opposite side of the road, crossed the median, and
approached Murakami’s car. From behind Rice’s car, they
could observe a woman and two teenagers inside the car.
After approaching the car, Murakami identified the
teenagers as Rice’s children. Morehouse, who stood
12
Indeed, as Shaffer suggested at trial, Murakami’s comments had
precisely that effect. As he explained, “after hearing [Murakami’s
comments], I kind of – I slowed down a little bit.”
18 RICE V. MOREHOUSE
immediately behind Murakami, could see Rice roll down his
window and could hear Rice ask to speak to Murakami’s
supervisor. The dash-cam footage shows Rice making this
request at least five times. Jt Ex. 1001 at 9:50–10:20. He
made those requests calmly, punctuating his requests with
“please” and “ma’am” and without raising his voice. Jt Ex.
1001 at 9:50–10:20. Once they walked Rice to the back of
his car, Morehouse and Shaffer were among six officers
surrounding Rice. Jt Ex. 1001 at 10:30. And by the time
Morehouse and Shaffer implemented the take-down, more
than a minute had passed since they had first met Murakami
at her car. During that brief period, although Rice refused to
cooperate, Morehouse and Shaffer did not observe Rice yell
or use profanity, attempt to flee or to harm the officers, or
reach for any sort of weapon. Thus, a reasonable jury could
find that an officer standing in their shoes would have known
that they were not facing an emergency situation.
Absent an emergency, the state’s interests here are
insubstantial. Rice’s purported traffic offense—failing to
signal for a full five seconds before changing lanes—was
minor. See Bryan, 630 F.3d at 828 (“Traffic violations
generally will not support the use of a significant level of
force.”). Nor was the offense that Murakami suspected him
of—driving under the influence—particularly severe. See
id. at 829. In any event, Morehouse and Shaffer only knew
what they were told, which included Murakami’s
explanations that Rice was “just not wanting to comply with
my instructions” and that “[a]ll I wanted was his license.”
Given the circumstances and Murakami’s explanations, a
reasonable jury could find that Morehouse and Shaffer could
not reasonably have believed that Rice had committed a
serious crime.
RICE V. MOREHOUSE 19
Similarly, a reasonable jury could find that Rice did not
present an immediate threat to the safety of the officers or
others, the most important factor under Graham. See
Isayeva, 872 F.3d at 947. Murakami even turned her back
to Rice’s car and briefly walked backward as she re-
approached the vehicle to arrest him, undermining any
suggestion that she believed Rice might have a firearm.
Moreover, despite more than a dozen officers arriving at the
scene, Murakami then explained she needed only one unit to
help remove Rice from his car. 13 That explanation dispelled
any notion that Rice was dangerous or that his family
warranted additional safety precautions. In addition,
Murakami explained that she needed that limited assistance
because Rice would not give her his license and was not
following instructions. That Murakami did not say or
suggest another reason for needing assistance strongly
undermines Morehouse’s and Shaffer’s assertion that they
reasonably believed Rice posed an immediate threat to them
or others.
Finally, although there is conflicting summary-judgment
evidence, a jury could find that Rice was not “actively
resisting arrest or attempting to evade arrest by flight.”
Mattos, 661 F.3d at 441. According to Rice’s version of the
events, he “was not resisting in any way” until after he was
taken down. Because the dash-cam video does not clearly
contradict Rice’s account, we must accept it. See Scott,
903 F.3d at 952. We have long distinguished between
passive and active resistance, see Forrester v. City of San
Diego, 25 F.3d 804, 805 (9th Cir. 1994), and Rice’s refusals
to exit his car are far closer to “the purely passive protestor
who simply refuses to stand” than to the “minor” or even
13
As Murakami later explained at trial, she meant only “one
person.”
20 RICE V. MOREHOUSE
“truly active” forms of resistance that we have considered in
other cases. See Bryan, 630 F.3d at 830 (construing the
plaintiff’s refusals to remain in his car, even given his
shouting and self-hitting, as relatively passive).
In sum, based on our review of the Graham factors, a
reasonable jury could find that the state had a minimal
interest in the use of substantial force against Rice.
We note an additional consideration supporting our
conclusion: the officers did not apparently consider “what
other tactics if any were available” to effect the arrest.
Bryan, 630 F.3d at 831 (quoting Headwaters Forest Def. v.
Cnty. of Humboldt, 240 F.3d 1185, 1204 (9th Cir. 2000)).
The officers apparently planned to arrest Rice while holding
him, standing up, in a “police lead” position. Shaffer
stepped in once he noticed that Murakami lost her grip of
Rice’s left arm. But Morehouse and Shaffer do not explain
why they, despite being able to hold Rice in a police lead
position, could not have arrested Rice in the way they first
planned. Morehouse and Shaffer assume (as we cannot at
this stage) that Rice was resisting Murakami’s attempts to
hold him. Cf. Tuuamalemalo, 946 F.3d at 478 (“At this stage
of the proceedings, we must assume that Tuuamalemalo was
not resisting when Officer Greene used a chokehold on
him.”). Although officers “need not avail themselves of the
least intrusive means of responding to an exigent situation,”
their failure to consider “clear, reasonable and less intrusive
alternatives” to the force employed “militates against finding
the use of force reasonable.” Glenn, 673 F.3d at 876
(internal quotation marks and alterations omitted).
3. Balancing the Competing Interests
In light of all the circumstances, a reasonable jury could
conclude that Morehouse’s and Shaffer’s use of substantial
RICE V. MOREHOUSE 21
force against Rice outweighed the officers’ need for its use.
See Lowry, 858 F.3d at 1256.
The balance here is similar to Bryan, where we
considered the use of a taser at a traffic stop for Carl Bryan’s
failure to wear his seatbelt. 630 F.3d 805. Bryan, upset after
a long drive and receiving a speeding ticket earlier that night,
hit his steering wheel and yelled expletives to himself. Id.
at 822. Bryan also stepped out of his car unprompted. Id.He did not verbally threaten the officer, was standing at least
twenty feet away and did not attempt to flee. Id. The officer
instructed Bryan to get back in the car, which he did not do.
Id. Bryan later said he did not hear the officer’s instructions.
Id. Bryan also said he remained still, but the officer testified
that Bryan took “one step” toward him. Id. As a result, and
without warning, the officer shot Bryan with a taser gun, and
he fell face-first into the ground, fracturing his teeth and
suffering facial contusions. Id.Applying Graham’s three-step balancing framework, we
held that the officer’s use of force against Bryan was
excessive because (1) the arresting officer used an
“intermediate or medium, though not insignificant, quantum
of force”; (2) although Bryan’s erratic behavior could lead
an officer to be wary, he did not pose an immediate threat to
the officer, his traffic violation did not support the use of a
significant level of force, his failure to return to his car
constituted at most passive resistance, and the officer failed
to warn Bryan about the taser or to seek a less intrusive
alternative; and (3) on balance, the state’s “minimal interest”
in the use of force against Bryan did not justify the use of
“intermediate level of force” against him. Id. at 824–32.
There are several clear parallels in this case to the
balance we struck in Bryan. First, Morehouse’s and
Shaffer’s use of the take-down maneuver involved
22 RICE V. MOREHOUSE
“substantial” force that resulted in forcibly throwing Rice
face-first to the pavement, similar to the non-lethal force in
Bryan. Second, similar to Bryan, Rice’s behavior did not
constitute an immediate threat to the officers; his traffic
violation did not support the use of a significant level of
force; Rice’s refusal to get out of his car did not constitute
active resistance; and officers failed to attempt a less
intrusive alternative. Finally, on balance, a reasonable jury
could find that the state’s minimal interest in the use of force
against Rice did not justify the “substantial force” used
against him.
In disagreeing, Morehouse and Shaffer rely on the
unrebutted testimony of use-of-force expert Scot Haug, who
opined that both officers acted “reasonably, appropriately,
and in conformance with their training” throughout the
incident. Haug’s analysis, however, depends on two factual
issues that are genuinely disputed. First, Haug broadly relies
on the Code 3 call, which Haug characterizes as “the most
exigent of assistance calls” and which “would have
reasonably put [Morehouse and Shaffer] on guard
concerning their safety.” But Haug, like the district court,
fails to recognize how Murakami’s comments to the arriving
officers effectively downgraded the Code 3 call. A
reasonable jury could find that Morehouse and Shaffer both
heard Murakami’s comments and knew that the
circumstances no longer presented an urgency.
Second, Haug’s opinion relies on his conclusion that
Rice was physically resisting his arrest. But as noted above,
that issue is genuinely disputed and not directly resolved by
the dash-cam video. Thus, Haug’s ultimate conclusions
regarding the propriety of the take-down depends on two
critical factual issues that cannot be resolved at summary
judgment. “Where such disputes exist, summary judgment
RICE V. MOREHOUSE 23
is appropriate only if [Morehouse and Shaffer] are entitled
to qualified immunity on the facts as alleged by [Rice].” See
Blankenhorn, 485 F.3d at 477.
In sum, although there are material facts in dispute, when
the facts are taken in the light most favorable to Rice, a jury
could conclude that Morehouse and Shaffer used excessive
force in violation of the Fourth Amendment. Thus, we turn
to the second prong of the qualified-immunity analysis.
B. CLEARLY ESTABLISHED LAW
The district court held that even if Morehouse and
Shaffer used excessive force, they were entitled to qualified
immunity. Accordingly, we consider whether Rice’s right
to be free from Morehouse’s and Shaffer’s substantial force
in implementing the take-down “was clearly established . . .
in light of the specific context of the case.” Tuuamalemalo,
946 F.3d at 477 (quoting Scott, 550 U.S. at 377).
To be clearly established, “[t]he contours of the right
must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). The
Supreme Court has repeatedly cautioned us “not to define
clearly established law at a high level of generality.” City of
Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503 (2019)
(quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)).
“To determine whether [an officer] violated clearly
established law, we look to cases relevant to the situation
[the officer] confronted, mindful that there need not be a case
directly on point.” A.K.H. rel. Landeros v. City of Tustin,
837 F.3d 1005, 1013 (9th Cir. 2016) (citations and internal
quotation marks omitted). “[E]xisting precedent must place
the lawfulness of the particular [action] beyond debate,” for
which “a body of relevant case law is usually necessary.”
24 RICE V. MOREHOUSE
Emmons, 139 S. Ct. at 504 (quoting D.C. v. Wesby, 138 S.
Ct. 577, 581 (2018)).
Long before Rice’s arrest, we clearly established one’s
“right to be free from the application of non-trivial force for
engaging in mere passive resistance.” Gravelet-Blondin v.
Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013); see also
Nelson v. City of Davis, 685 F.3d 867, 881 (9th Cir. 2012)
(explaining that cases dating back to 2001 established that “a
failure to fully or immediately comply with an officer’s
orders neither rises to the level of active resistance nor
justifies the application of a non-trivial amount of force”).
In Gravelet-Blondin, we held that an officer’s tasing of a
bystander to an arrest who did not retreat despite the officer’s
orders violated clearly established law. 728 F.3d at 1092–
96. Because the plaintiff did not make any threats or resist
the officer, under our case law, “the use of non-trivial force
of any kind was unreasonable.” Id. at 1094 (emphasis
added).
In Gravelet-Blondin, we discussed two cases that clearly
established the right to be free from any kind of non-trivial
force where the plaintiff either did not resist or only
passively resisted the officer. We cited Deorle, in which we
denied qualified immunity to an officer who shot a beanbag
projectile at a suicidal and irrational individual who followed
the officer’s instructions to put down his crossbow but who
then walked towards the officer at a steady gait. 272 F.3d at
1277, 1281. We also cited Headwaters Forest Defense,
where we considered the use of pepper spray to subdue,
remove, or arrest nonviolent protesters and held that “[t]he
law regarding a police officer’s use of force against a passive
individual was sufficiently clear” in 1997 to put officers on
notice that such force was excessive. 276 F.3d at 1131. Both
cases bear on Morehouse’s and Shaffer’s conduct towards
RICE V. MOREHOUSE 25
Rice, who, taking his version of the incident as true, was at
most passively resistant.
Similarly, in Nelson, we cited several cases that held that
non-trivial force was not justified in the face of passive or
even minimal resistance. 685 F.3d at 881–82. In Young v.
County of Los Angeles, for example, we denied qualified
immunity to an officer who physically struck and used
pepper spray against an arrestee who refused to reenter his
vehicle, 655 F.3d 1156, 1158 (9th Cir. 2011), holding that
“[t]he principle that it is unreasonable to use significant force
against a suspect who was suspected of a minor crime, posed
no apparent threat to officer safety, and could be found not
to have resisted arrest” was well established long before
2007. Id. at 1168. Similarly, as discussed, in Bryan, we held
that it was excessive for an officer to use a taser against a
person who, although shouting gibberish, hitting himself,
and disobeying the officer’s instructions to reenter his car,
was otherwise non-resistant. 630 F.3d 805.
Cases like Deorle, Headwaters, Young, and Bryan—as
summarized in Gravelet-Blondin and Nelson—sufficiently
established the law before Rice’s arrest in 2011. These cases
form a “body of relevant case law” that together place
Morehouse’s and Shaffer’s use of substantial force against a
passively resisting person “beyond debate.” Emmons,
139 S. Ct. at 504. Accordingly, qualified immunity must be
denied.
Morehouse’s and Shaffer’s reliance on the Supreme
Court’s recent decision in Emmons is misplaced.
In Emmons, the Supreme Court vacated our decision
denying summary judgment and qualified immunity to an
officer who, responding to a domestic abuse call, tackled
Marty Emmons as he exited an apartment. Id. at 502. In
26 RICE V. MOREHOUSE
denying the officer qualified immunity, we said that the
“right to be free of excessive force was clearly established”
at the time of Emmons’s arrest in 2013. Emmons v. City of
Escondido, 716 F. App’x 724, 725 (9th Cir. 2018) (citing
Gravelet-Blondin, 728 F.3d at 1093). The Supreme Court
rejected that formulation as “far too general.” 139 S. Ct. at
503. The Court acknowledged the right described in
Gravelet-Blondin to be “free from the application of non-
trivial force for engaging in mere passive resistance,” but
rejected that case law as inapposite because it involved uses
of force “against individuals engaged in passive resistance.”
Id. (emphasis in original). Accordingly, the Court remanded
for us to consider whether the officer was entitled to
qualified immunity. Id. at 504.
On remand, we continued to cite favorably our holding
in Gravelet-Blondin. See Emmons v. City of Escondido,
921 F.3d 1172, 1175 (9th Cir. 2019). But to reconcile the
Supreme Court’s decision with Gravelet-Blondin—a case
with which the Court did not take issue—we concluded that
the Court “must have concluded implicitly that [Emmons]’s
actions involved more than passive resistance.” Id. In
particular, we noted the Supreme Court’s emphasis that
Emmons was a potential suspect (for domestic abuse) and
was attempting to flee. Id. at 1174–75 (citing Emmons,
139 S. Ct. at 504). That distinction was critical and led us to
hold that Gravelet-Blondin (and the line of cases leading up
to it) was not sufficiently on point regarding Emmons’s take-
down. Id. at 1175. We were otherwise unable to find a case
sufficiently on point, and we held that the officer was thus
entitled to qualified immunity. Id.
In contrast, here, taking Rice’s version of the events as
true, Rice was engaged in mere passive resistance. To be
sure, Rice repeatedly declined to provide his license and
RICE V. MOREHOUSE 27
other documents to Murakami and to exit his car. But Rice
gave Murakami his name, rolled down the window, and
attempted to gather his license before he was pulled out of
his car. Rice also unlocked the car and did not physically
resist arrest before he was taken to the ground. Although
Rice was upset and insistent in wanting to speak with
Murakami’s supervisor, Rice did not swear or threaten any
of the officers. Thus, like the plaintiff in Gravelet-
Blondin—and unlike the plaintiff in Emmons—Rice was
“perfectly passive, engaged in no resistance, and did nothing
that could be deemed particularly bellicose.” Gravelet-
Blondin, 728 F.3d at 1092 (internal quotation marks
omitted). Accordingly, the line of cases discussed in
Gravelet-Blondin clearly established the law long before
Morehouse’s and Shaffer’s take-down of Rice.
V. CONCLUSION
Viewing the facts, as we must, in the light most favorable
to Rice, we conclude that a reasonable jury could find that
Rice engaged in passive resistance and that Morehouse’s and
Shaffer’s take-down of Rice involved unconstitutionally
excessive force. Furthermore, because the right to be free
from “the application of non-trivial force for engaging in
mere passive resistance” was clearly established before
December 2011, Morehouse and Shaffer are not immune
from suit. Accordingly, we REVERSE the district court’s
grant of summary judgment to Morehouse and Shaffer on the
basis of qualified immunity and REMAND for further
proceedings consistent with this opinion.
REVERSED and REMANDED.