Donald Gravelet-Blondin v. Sgt Jeff Shelton , 728 F.3d 1086 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD GRAVELET-BLONDIN; No. 12-35121
KRISTI GRAVELET-BLONDIN,
Plaintiffs-Appellants, D.C. No.
2:09-cv-01487-
v. RSL
SGT. JEFF SHELTON; CITY OF
SNOHOMISH, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
May 10, 2013—Seattle, Washington
Filed September 6, 2013
Before: Michael Daly Hawkins and Jacqueline H. Nguyen,
Circuit Judges, and James V. Selna, District Judge.*
Opinion by Judge Hawkins;
Dissent by Judge Nguyen
*
The Honorable James V. Selna, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
2 GRAVELET-BLONDIN V. SHELTON
SUMMARY**
Civil Rights
The panel reversed the district court’s summary judgment
and remanded in an action brought pursuant to 42 U.S.C.
§ 1983 and state law alleging that police officers used
excessive force by tasing a passive bystander in dart mode
and then arresting him for obstruction of justice.
Plaintiff Donald Gravelet-Blondin was tased and arrested
after he allegedly failed to comply immediately with an
officer order to move away from the scene where his
neighbor was being arrested. The panel first determined that,
taking the evidence in the light most favorable to Donald and
his co-plaintiff wife, the discharge of a taser in dart mode was
unreasonable given that Donald’s alleged crime was minor
and there was no reason to believe, based on his behavior,
demeanor, and distance from the officers, that he posed an
immediate threat to anyone’s safety. The panel further held
that the police officer who tased Donald was not entitled to
qualified immunity because it was well known as of 2008 that
a taser in dart mode constituted more than trivial force.
The panel also reversed the district court’s summary
judgment on plaintiffs’ excessive force claim against the City
and remanded. The panel further held that a genuine issue of
fact remained as to whether there was probable cause to arrest
Donald for obstructing a police officer. The panel instructed
the district court on remand to consider whether qualified
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GRAVELET-BLONDIN V. SHELTON 3
immunity or Monell liability applied to the unlawful arrest
claim. Finally, the panel reversed the district court’s
summary judgment on plaintiffs’ common law claims for
malicious prosecution and outrage.
Dissenting, Judge Nguyen stated that the majority went
badly astray because it lost sight of the specific context of this
case and employed hindsight rather than viewing the scene
through the eyes of a reasonable officer.
COUNSEL
Timothy K. Ford (argued) and Joseph R. Shaeffer,
MacDonald Hoague & Bayless, Seattle, Washington, for
Plaintiffs-Appellants.
Richard B. Jolley (argued) and Adam Rosenberg, Keating,
Bucklin & McCormack, Inc., Seattle, Washington, for
Defendants-Appellees.
OPINION
HAWKINS, Senior Circuit Judge:
We must decide whether it was clearly established as of
2008 that the use of a taser in dart mode against a passive
bystander amounts to unconstitutionally excessive force
within the meaning of the Fourth Amendment.1 Because we
1
We proceed by answering this question in two parts, considering first
whether it was clearly established that it is unconstitutionally excessive to
use non-trivial force in response to mere passive resistance, and second,
4 GRAVELET-BLONDIN V. SHELTON
determine that it was, we reverse the contrary conclusion of
the district court and remand.2
I. BACKGROUND
In the early evening of May 4, 2008, Sergeant Jeff
Shelton and four other officers from the Snohomish,
Washington Police Department were dispatched to respond
to a 911 call of a suicide in progress made by family members
of an elderly suspect, Jack. When the officers arrived at
Jack’s home he was sitting in his car, which was parked in the
side yard of his house, with a hose running from the exhaust
pipe into one of the car’s windows. The officers had been
warned that Jack owned a gun and would have it with him.
Sgt. Shelton took precautions to ensure officer safety and then
asked Jack to get out of the car.
After several requests Jack finally complied, turning his
car off and stepping out with his hands at his sides. When
Jack refused multiple commands to show his hands, Sgt.
Shelton—concerned that Jack might gain access to a
gun—instructed another officer to tase Jack in dart mode.3
whether it was clearly established that a taser in dart mode constitutes
non-trivial force. We disagree with the dissent’s concern that we are
undertaking this constitutional inquiry at too high a level of generality.
2
We reverse the court’s grant of summary judgment on a number of
related claims, as well.
3
In “dart mode,” a taser:
uses compressed nitrogen to propel a pair of
“probes”—aluminum darts tipped with stainless steel
barbs connected to the [taser] by insulated
GRAVELET-BLONDIN V. SHELTON 5
Jack fell to the ground and, as officers attempted to restrain
and handcuff him, he pulled his arms underneath him. He
was then tased a second time.
Donald and Kristi Gravelet-Blondin (“the Blondins”),
Jack’s neighbors, were watching TV at home when the police
arrived at the scene. They heard noise coming from the
direction of Jack’s house and went outside—Donald Blondin
(“Blondin”) in shorts, a t-shirt, and slippers—to investigate
and make sure their neighbor was all right. When they
stepped into the yard between Jack’s house and their own, the
Blondins heard Jack moaning in pain, and Blondin saw
officers holding Jack on the ground.
Blondin called out, “what are you doing to Jack?” He
was standing some thirty-seven feet from Jack and the
officers at the time, with Jack’s car positioned in between.4
At least two of the officers holding Jack yelled commands at
wires—toward the target at a rate of over 160 feet per
second. Upon striking a person, the [taser] delivers a
1200 volt, low ampere electrical charge . . . The
electrical impulse instantly overrides the victim’s
central nervous system, paralyzing the muscles
throughout the body, rendering the target limp and
helpless.
Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (en banc) (quoting
Bryan v. MacPherson, 630 F.3d 805, 824 (9th Cir. 2010)) (internal
quotation marks omitted), cert. denied, 132 S. Ct. 2681 (2012), and cert.
denied, 132 S. Ct. 2682 (2012), and cert. denied, 132 S. Ct. 2684 (2012).
4
Blondin’s calculation is based on measurements he took the day after
the incident; officers on the scene took no measurements and have given
varying estimates as to how far away Blondin was standing, ranging from
ten to twenty-five feet.
6 GRAVELET-BLONDIN V. SHELTON
Blondin: one instructed him to “get back,” while another told
him to “stop.” According to a bystander watching the scene
unfold, Blondin took one or two steps back and then stopped.
Blondin recalls that he simply stopped. Sgt. Shelton then ran
towards Blondin, pointing a taser at him and yelling at him to
“get back.” Blondin froze. The bystander testified that
Blondin “appeared frozen with fear,” and Defendants have
conceded that he made no threatening gestures.
Sgt. Shelton began to warn Blondin that he would be
tased if he did not leave, but fired his taser before he had
finished giving that warning. Sgt. Shelton tased Blondin in
dart mode, knocking him down and causing excruciating
pain, paralysis, and loss of muscle control. Blondin,
disoriented and weak, began to hyperventilate. Sgt. Shelton
asked Blondin if he “want[ed] it again” before turning to Ms.
Blondin and warning, “You’re next.” Sgt. Shelton then
ordered another officer to handcuff Blondin. Paramedics
called to the scene removed the taser’s barbs from Blondin’s
body and tried to keep him from hyperventilating. Blondin
was arrested and charged with obstructing a police officer, a
charge that was ultimately dropped.
The Blondins then initiated this action, suing the City of
Snohomish (“the City”) and Sgt. Shelton for excessive force
and unlawful arrest in violation of 42 U.S.C. § 1983, and
malicious prosecution in violation of Washington law, for the
tasing and arrest of Blondin. Ms. Blondin also sued for
outrage under state law for the harm she suffered watching
her husband’s tasing and being threatened with tasing herself.
After considering cross-motions for summary judgment, the
district court granted summary judgment to Defendants on all
claims.
GRAVELET-BLONDIN V. SHELTON 7
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment
de novo. Bravo v. City of Santa Maria, 665 F.3d 1076, 1083
(9th Cir. 2011). In determining whether genuine issues of
material fact remain, we are required to view all evidence and
draw all inferences “in the light most favorable to the non-
moving party,” here, the Blondins. Id.III. DISCUSSION
A. Excessive Force
We begin with the district court’s grant of summary
judgment to Defendants on the Blondins’ excessive force
claim. We agree that the Blondins have shown a
constitutional violation but disagree that neither Sgt. Shelton
nor the City may be held liable for it.
1. Constitutional Violation
The Fourth Amendment, which protects against excessive
force in the course of an arrest, requires that we examine the
objective reasonableness of a particular use of force to
determine whether it was indeed excessive. Graham v.
Connor, 490 U.S. 386, 394–95, 398 (1989); see also Maxwell
v. Cnty. of San Diego, 697 F.3d 941, 951 (9th Cir. 2012). To
assess objective reasonableness, we weigh “the nature and
quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental
interests at stake.” Graham, 490 U.S. at 396 (citation and
internal quotation marks omitted).
8 GRAVELET-BLONDIN V. SHELTON
Here, the intrusion on Blondin’s Fourth Amendment
interests—the discharge of a taser in dart mode upon
him—involved an intermediate level of force with
“physiological effects, [] high levels of pain, and foreseeable
risk of physical injury.” Bryan, 630 F.3d at 825.
Graham provides a non-exhaustive list of factors to
consider in determining the governmental interests at stake,
including “the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers
or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham, 490 U.S. at
396. Each factor reveals the unreasonableness of the use of
intermediate force against Blondin.
First, as we explain below, a fact question remains as to
whether there was sufficient probable cause to arrest Blondin
for obstruction. Even if he committed a crime, though, that
crime—failing to immediately comply with an officer order
to get back from the scene of an arrest, when he was already
standing thirty-seven feet away—was far from severe. See
Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir.
2007) (trespassing and obstructing a police officer were not
“serious offenses”); see also Smith v. City of Hemet, 394 F.3d
689, 702 (9th Cir. 2005) (en banc) (domestic violence suspect
was not “particularly dangerous,” and his offense was not
“especially egregious”).
Second, there was no reason to believe, based on
Blondin’s behavior, demeanor, and distance from the officers,
that he posed an immediate threat to anyone’s safety. In
urging that officers reasonably could have thought Blondin
posed such a threat, Defendants rely primarily on the officers’
perception that Blondin was standing too close to them,
GRAVELET-BLONDIN V. SHELTON 9
between six and twenty feet away, and that he “never
manifested a benign motive.” The argument that Blondin was
less than twenty-one feet from officers—which Defendants
identify as “the threshold for danger” —improperly resolves
a fact question in their own favor. Construing the facts in
Blondin’s favor, as we must, he was standing thirty-seven
feet away. Blondin’s failure to affirmatively exhibit a
“benign motive” is likewise insufficient to demonstrate that
he reasonably could have been perceived as posing an
immediate threat, especially in light of witness testimony that
he was perceptibly frozen with fear.
Defendants also urge us to consider Jack’s then-unlocated
gun as a basis for the officers’ belief that Blondin posed a
threat. As the district court observed, the officers’ purported
fear that Blondin might have a gun was “based on nothing
more than the reality that any civilian could be armed,
speculation that fails to distinguish [Blondin] from any
bystander at a crime scene.” See Deorle v. Rutherford,
272 F.3d 1272, 1281 (9th Cir. 2001) (“[A] simple statement
by an officer that he fears for his safety or the safety of others
is not enough; there must be objective factors to justify such
a concern.”), cert. denied, 536 U.S. 958 (2002).
Finally, Blondin did not resist arrest or attempt to escape.
While “purely passive resistance can support the use of some
force, [] the level of force an individual’s resistance will
support is dependent on the factual circumstances underlying
that resistance.” Bryan, 630 F.3d at 830. In City of Hemet,
for example, we addressed the nature of resistance exhibited
by “an individual who continually ignored officer commands
to remove his hands from his pockets and to not re-enter his
home,” and who “physically resisted” for a brief time. Id.(quoting City of Hemet, 394 F.3d at 703) (internal quotation
10 GRAVELET-BLONDIN V. SHELTON
marks omitted). Though the individual “was not perfectly
passive,” id., we emphasized that his resistance was not
“particularly bellicose” and as a result concluded that the
third Graham factor offered little support for the use of
significant force against him. City of Hemet, 394 F.3d at 703.
Here, Blondin stood still for approximately fifteen
seconds after receiving the first order to “get back,” which
was given simultaneously with a contradictory order to
“stop.” Even less time passed, then, between Sgt. Shelton’s
subsequent, unequivocal “get back” command and the tasing.
Though Blondin did not retreat during this brief period, he
was perfectly passive, engaged in no resistance, and did
nothing that could be deemed “particularly bellicose.”
In evaluating objective reasonableness, we often must
look beyond Graham’s enumerated factors and consider other
elements relevant to the totality of the circumstances. Bryan,
630 F.3d at 826. As we have noted in the domestic violence
context, the “danger that the overall situation pose[s] to the
officers’ safety and what effect that has on the reasonableness
of the officers’ actions” may be an appropriate consideration.
Mattos, 661 F.3d at 450. Here, officers testified that suicide
calls present unique risks. Suicidal individuals can quickly
turn homicidal and may engage police officers in an effort to
commit “suicide by cop.” But unlike in Mattos, where the
individual who resisted officer orders and was ultimately
tased was the suspected victim in the domestic violence call,
and therefore integrally involved in the volatile situation to
which officers were responding, Blondin was a bystander
thirty-seven feet away without any perceptible connection to
the underlying crime—Jack’s attempted suicide. It strains
GRAVELET-BLONDIN V. SHELTON 11
logic to attribute any of the dangers involved in responding to
suicide calls to him.5
Finally, as we have recognized before, 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. See Mattos, 661 F.3d at 451; Deorle,
272 F.3d at 1283–84. Here, though Sgt. Shelton gave such a
warning, he did so as he fired his taser, leaving Blondin no
time to react and rendering the warning meaningless.
Taking the evidence in the light most favorable to the
Blondins, a reasonable factfinder could conclude that Sgt.
Shelton’s use of force was unreasonable and excessive, in
violation of the Fourth Amendment.
2. Qualified Immunity
Even so, Sgt. Shelton is entitled to qualified immunity if
his conduct did not “violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Having concluded that Sgt. Shelton may indeed have used
excessive force in violation of the Fourth Amendment, we
now consider whether the right to be free from such force was
clearly established at the time of the incident. See Mattos,
661 F.3d at 446.
5
We agree with the dissent that officers responding to suicide calls face
a risk that the suspect may attempt to “go out in a blaze of glory,” and we
accept that Jack potentially posed such a threat. We fail to grasp the
attribution of any part of that threat to Blondin.
12 GRAVELET-BLONDIN V. SHELTON
“For a constitutional right to be clearly established, its
contours must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.”
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citation and
internal quotation marks omitted). We bear in mind,
however, that “officials can still be on notice that their
conduct violates established law even in novel factual
circumstances.” Id. at 741. We are “particularly mindful of
this principle in the context of Fourth Amendment cases,
where the constitutional standard—reasonableness—is
always a very fact-specific inquiry.” Mattos, 661 F.3d at 442.
But while there need not be a “case directly on point, []
existing precedent must have placed the statutory or
constitutional question beyond debate.” Ashcroft v. al-Kidd,
131 S. Ct. 2074, 2083 (2011).
The right to be free from the application of non-trivial
force for engaging in mere passive resistance was clearly
established prior to 2008. See Nelson v. City of Davis,
685 F.3d 867, 881 (9th Cir. 2012) (cases dating back to 2001
have 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 Deorle, for example, we held that
shooting a beanbag projectile at a suicidal, irrational
individual who was walking directly towards an officer was
excessive, given that the crime he committed was minor, the
danger to the officer and others was minimal, there was no
immediate need to subdue him, and he was not given any
warning that he would be shot if he continued to approach the
officer. 272 F.3d at 1282. We also denied qualified
immunity, concluding that every police officer should have
known that it was objectively unreasonable to use such force
under those circumstances. Id. at 1285. In Headwaters
GRAVELET-BLONDIN V. SHELTON 13
Forest Def. v. Cnty. of Humboldt, 276 F.3d 1125 (9th Cir.
2002), 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. Id. at 1131.
Though these cases do not concern tasers, they need not.
As we explained in Deorle, “[i]t does not matter that no case
of this court directly addresses the use of [a particular
weapon]; we have held that ‘[a]n officer is not entitled to
qualified immunity on the grounds that the law is not clearly
established every time a novel method is used to inflict
injury.’” 272 F.3d at 1286 (quoting Mendoza v. Block,
27 F.3d 1357, 1362 (9th Cir. 1994)). Indeed, even absent
taser-specific case law, three of our sister circuits have held
that the law was clearly established, prior to 2008, that the
use of a taser can in some instances constitute excessive
force.6
6
See Shekleton v. Eichenberger, 677 F.3d 361, 366–67 (8th Cir. 2012)
(clearly established as of 2008 that tasing “an unarmed suspected
misdemeanant, who did not resist arrest, did not threaten the officer, did
not attempt to run from him, and did not behave aggressively towards
him” was excessive); Cavanaugh v. Woods Cross City, 625 F.3d 661, 667
(10th Cir. 2010) (clearly established as of 2006 that a police officer could
not tase “a nonviolent misdemeanant who did not pose a threat and was
not resisting or evading arrest without first giving a warning”); Brown v.
City of Golden Valley, 574 F.3d 491, 497 (8th Cir. 2009) (clearly
established as of 2005 that tasing an individual who “posed at most a
minimal safety threat . . . and was not actively resisting arrest or
attempting to flee” was unconstitutional); Oliver v. Fiorino, 586 F.3d 898,
906–08 (11th Cir. 2009) (clearly established as of 2004 that it was
excessive to tase multiple times an individual who had engaged in a brief
physical struggle with a police officer, because, after the first tasing, the
individual was immobilized). These cases are not at odds with our own
14 GRAVELET-BLONDIN V. SHELTON
Still, relying on our grants of qualified immunity in Bryan
and Mattos, Defendants argue that the law was insufficiently
clear before 2010—when we first identified tasers in dart
mode as an intermediate level of force, Bryan, 630 F.3d at826—to put Sgt. Shelton on notice that his use of a taser
against Blondin was excessive. But this case is factually
distinguishable from Bryan and Mattos in one critical respect:
Blondin engaged in no behavior that could have been
perceived by Sgt. Shelton as threatening or resisting. As a
result, the use of non-trivial force of any kind was
unreasonable.
Though none of the plaintiffs in Bryan and Mattos
engaged in serious resistance, each either took an affirmative
step to contravene officer orders or engaged in behavior that
posed some threat to officer safety. In Bryan, after being
pulled over for a seatbelt infraction and ordered to stay in the
car, Bryan exited his car, acted belligerent, and ignored
repeated orders to get back in the car. 630 F.3d at 822. We
interpreted even this behavior as “passive” or “minor”
resistance, rather than “truly active resistance.” Id. at 830.
Like Bryan, Brooks, the first of two plaintiffs addressed
in Mattos, was pulled over for a traffic violation after which
she refused to comply with officer orders. 661 F.3d at 443.
Brooks then physically resisted officers’ attempts to remove
her from the car by keeping her hands on the steering wheel.
prior opinions granting qualified immunity because the law regarding
tasers was insufficiently clear—namely, Bryan, 630 F.3d 805, and Mattos,
661 F.3d 433. The extent to which the law is “clearly established” in the
Fourth Amendment reasonableness context is fact-specific, and none of
these out-of-circuit cases are factually analogous to Bryan or Mattos.
GRAVELET-BLONDIN V. SHELTON 15
Id. at 443, 445 (noting that “Brooks engaged in some
resistance to arrest”).
Finally, Mattos, a suspected domestic violence victim,
was physically blocking officer access to the suspect, her
husband, and put her hands on an officer when he tried to
pass by her to arrest her husband. Id. at 439. When the
officer asked Mattos if she was “touching an officer,” she did
not respond, did not move aside, and, ignoring the officer,
urged another officer to move the confrontation outside. Id.Here, evaluating the situation from Sgt. Shelton’s
perspective, Blondin—who, unlike Bryan, Brooks, and
Mattos, had no connection to the underlying crime—
committed no act of resistance. He took no affirmative step
to violate an officer order (Bryan), did not physically resist
officers (Brooks), and neither made physical contact with an
officer nor tried to interfere with efforts to arrest a suspect
(Mattos). His momentary failure to move farther than thirty-
seven feet away from officers arresting his neighbor,7 after
merely inquiring into what those officers were doing, can
hardly be considered resistance. This is especially so given
evidence that Blondin was visibly frozen with fear.
7
The dissent takes issue with our characterization of Blondin’s failure
to respond to the “get back” order as “momentary,” urging that Blondin
“refus[ed] to comply with officers’ orders” for fifteen seconds. As we
have explained, though, fifteen seconds passed between the simultaneous
conflicting commands to “get back” and to “stop”—orders with which
Blondin at least partially complied—and the tasing. After Blondin
complied with the initial orders, either by simply stopping or by stepping
back and then stopping, Sgt. Shelton ran at him, taser pointed, yelling at
him to “get back.” It is the time from this unequivocal “get back”
command to the tasing, less than fifteen seconds, that matters.
16 GRAVELET-BLONDIN V. SHELTON
Having determined that the right to be free from the
application of non-trivial force for engaging in passive
resistance was clearly established prior to 2008, we proceed
to the second part of our constitutional inquiry,8 considering
a question that was not before us in Bryan or Mattos: whether
it was clear in 2008 that using a taser in dart mode was non-
trivial.9
In 2005 we acknowledged that tasers, like stunbag
shotguns, are one of a “variety of non-lethal ‘pain
compliance’ weapons used by police forces.” San Jose
Charter of Hells Angels Motorcycle Club v. City of San Jose,
8
The dissent’s concern that we frame our inquiry in terms of “non-trivial
force” broadly, treating all “non-trivial force” alike, ignores this taser-
specific portion of our constitutional inquiry entirely.
9
Even had the facts of Bryan or Mattos called for such an inquiry, the
answer in those cases might well have been “no.” The dearth of case law
regarding this “relatively new implement of force,” Bryan, 630 F.3d at 833(citation and internal quotation marks omitted), animated our grants of
qualified immunity in those cases. In Bryan, for example, we emphasized
that as of 2005 “there was no Supreme Court decision or decision of our
court addressing” the force involved in using a taser in dart mode. Id.In Mattos, reviewing two taser cases involving unrelated incidents in
2004 and 2006, we noted that there were only three circuit court opinions
concerning taser use at the time of those incidents—Russo v. City of
Cincinnati, 953 F.2d 1036 (6th Cir. 1992), Hinton v. City of Elwood,
997 F.2d 774 (10th Cir. 1993), and Draper v. Reynolds, 369 F.3d 1270(11th Cir. 2004)—and each “reject[ed] claims that the use of a taser
constituted excessive force.” 661 F.3d at 446–48. Underscoring the
absence of a single circuit case finding a Fourth Amendment violation, we
could not conclude “that every reasonable officer would have understood
. . . beyond debate” that tasing the plaintiffs, Brooks and Mattos,
constituted excessive force. Id. at 448 (citation and internal quotation
marks omitted).
GRAVELET-BLONDIN V. SHELTON 17
402 F.3d 962, 969 (9th Cir. 2005). By 2008, the Tenth
Circuit and a number of district courts had found taser use
unconstitutionally excessive in some circumstances. Because
“[a]bsent binding precedent, we look to all available
decisional law, including the law of other circuits and district
courts, to determine whether [a] right was clearly
established,” Inouye v. Kemna, 504 F.3d 705, 714 (9th Cir.
2007) (citation and internal quotation marks omitted), those
decisions are relevant here. See Sorrels v. McKee, 290 F.3d
965, 971 (9th Cir. 2002) (“[U]npublished decisions of district
courts may inform our qualified immunity analysis.”).
In 2007, the Tenth Circuit held that using a taser
immediately and without warning against a misdemeanant
who did not “present[] an immediate threat of death or serious
injury to himself or others” was unconstitutionally excessive.
Casey v. City of Fed. Heights, 509 F.3d 1278, 1286 (10th Cir.
2007) (internal quotation marks omitted). The court
distinguished prior taser cases in which no Fourth
Amendment violation was found, explaining that what had
justified taser use in the Tenth Circuit’s own earlier case,
Hinton v. City of Elwood, was “active resistance to arrest.”
Id. (citing Hinton, 997 F.2d at 776–77, 781). As to the
Eleventh Circuit’s previous taser case, Draper v. Reynolds,
the court explained that, though it might have decided that
case differently, the plaintiff there had been “belligerent and
hostile,” and had refused five officer commands. Id. (citing
Draper, 369 F.3d at 1276–77). The court in Casey ultimately
denied qualified immunity because the tasing so clearly failed
the Graham reasonableness test—there were “no substantial
grounds for a reasonable officer to conclude that there was a
legitimate justification” for tasing the plaintiff—that it
violated clearly established law. Id. at 1286 (citation and
internal quotation marks omitted).
18 GRAVELET-BLONDIN V. SHELTON
Also in 2007, a district court in the Western District of
Washington, within which Defendants operate, held that
tasers constitute “significant force.” Beaver v. City of Fed.
Way, 507 F. Supp. 2d 1137, 1144 (W.D. Wash. 2007), aff’d,
301 F. App’x 704 (9th Cir. 2008). Examining whether such
force was objectively reasonable against a suspected felon
who, after fleeing the scene, had already been tased by
another officer three times, the court held that a fourth tasing
was excessive in light of the absence of active resistance. Id.at 1144–46. In reaching that conclusion, the court noted that,
“[a]lthough infliction of pain as a motivator is not the primary
function of a properly deployed [t]aser, pain is a necessary
byproduct of its use.” Id. at 1143. The court granted
qualified immunity, however, finding that the law in 2004
was not sufficiently well-established to have alerted officers
that this use of force was unconstitutional.
Another decision from the Western District of
Washington in 2006 likewise found taser use to be excessive,
observing that the tasing was unnecessary to effectuate the
arrest or to protect officers’ safety. Harris v. Cnty. of King,
C05-1121C, 2006 WL 2711769, at *3 (W.D. Wash. Sept. 21,
2006). In denying qualified immunity, the district court noted
“the intuitively gratuitous nature of administering painful
electric shocks to an arrestee who is passively complying
with an officer’s orders.” Id. at *4.
We do not look to these cases to establish Blondin’s right
to be free from non-trivial force in response to his total lack
of resistance—as discussed above, that right was established
within our own circuit as early as 2001, such that, by 2008, it
was “beyond debate” that using non-trivial force in response
to such passive bystander behavior would be
unconstitutionally excessive. al-Kidd, 131 S. Ct. at 2083.
GRAVELET-BLONDIN V. SHELTON 19
Instead, they support our determination that, though the
specific level of force involved in using a taser was not clear
until 2010, it was well known as of 2008 that a taser in dart
mode constitutes more than trivial force. Sgt. Shelton is
therefore not entitled to qualified immunity.
3. Municipal Liability
While local governments may be sued under § 1983, they
cannot be held vicariously liable for their employees’
constitutional violations. Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 690, 694 (1978). Instead, a municipality is
subject to suit under § 1983 only “if it is alleged to have
caused a constitutional tort through ‘a policy statement,
ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers.’” City of St. Louis v.
Praprotnik, 485 U.S. 112, 121 (1988) (quoting Monell,
436 U.S. at 690).
A plaintiff seeking to establish municipal liability must
demonstrate, moreover, that the government “had a deliberate
policy, custom, or practice that was the ‘moving force’
behind the constitutional violation he suffered.” Galen v.
County of L.A., 477 F.3d 652, 667 (9th Cir. 2007) (quoting
Monell, 436 U.S. at 694–95). To meet this requirement, the
plaintiff must show both causation-in-fact and proximate
causation. Harper v. City of Los Angeles, 533 F.3d 1010,
1026 (9th Cir. 2008). The Blondins’ excessive force claim
against the City is based on both the City’s policy regarding
tasers generally, and its ratification of Sgt. Shelton’s use of a
taser in this case.
We turn first to the City’s policy, no longer in effect,
defining tasers as a low level of force—lower than any other
20 GRAVELET-BLONDIN V. SHELTON
hands-on force, including a firm grip. Sgt. Shelton, at one
time a taser instructor for the Snohomish Police Department,
described the policy as classifying tasers as a “low,” “very
low,” or “very, very low” level of force. He also explained
that, pursuant to the City’s taser policy, “I don’t need to be
threatened to use a taser.” The City concedes that its former
policy was unconstitutional but contends the policy did not
cause Sgt. Shelton’s use of unconstitutionally excessive force
in this case.
At first blush, the City’s evidence seems to support its
argument: Sgt. Shelton has testified that he did not tase
Blondin because of any particular City policy, and that he
believes he could have used even greater force on Blondin.
But a year after the incident in this case, in response to a
performance evaluation regarding a different incident that
reprimanded Sgt. Shelton for being “too quick to apply the
taser when basic hands on defensive tactics would have
brought the subject into compliance,” Sgt. Shelton wrote that
he had “never [t]asered anyone inappropriately or out of
policy” (emphasis added). This statement reflects Sgt.
Shelton’s belief that all of his taser deployments, including,
of course, the one at issue here, were consistent with City
policy. As one of Defendants’ experts acknowledged, police
department policy “tends to affect officer behavior.”
Given this evidence, Sgt. Shelton’s testimony that he did
not tase Blondin because of a specific City policy means
little. No one contends the City had a policy requiring
officers to tase non-threatening suspects such that Blondin’s
tasing could have occurred because a specific policy directed
it. Instead, the City’s policy told Sgt. Shelton that tasing non-
resisting individuals in circumstances like this one was
acceptable. It informed him that even a firm grip entails
GRAVELET-BLONDIN V. SHELTON 21
more force than a taser and deputized him with the power to
tase an individual who presents no threat at all. A reasonable
factfinder could look at this incident, in which Sgt. Shelton
acted in accordance with a policy he claims never to have
departed from, and conclude that such policy was the moving
force behind his use of the taser in this case.
The Blondins alternatively allege that the City should be
held liable for ratifying Sgt. Shelton’s unconstitutional
conduct. “[A] local government may be held liable under
§ 1983 when ‘the individual who committed the
constitutional tort was an official with final policy-making
authority’ or such an official ‘ratified a subordinate’s
unconstitutional decision or action and the basis for it.’”
Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1250 (9th
Cir. 2010) (quoting Gillette v. Delmore, 979 F.2d 1342,
1346–47 (9th Cir. 1992)); see also Praprotnik, 485 U.S. at
127 (“If [] authorized policymakers approve a subordinate’s
decision and the basis for it, their ratification would be
chargeable to the municipality because their decision is
final.”).
In a footnote, the district court found it unnecessary to
reach the Blondins’ ratification-based Monell claim “because
the City readily admits that its policy classifies the taser as a
low level of force.” It is unclear why the district court
thought this admission would impact the ratification
argument, which is not based on the City’s taser policy.
Because the two theories of liability are different, after
rejecting the first the court should have proceeded to consider
the second. Both remain available to the Blondins on
remand.
22 GRAVELET-BLONDIN V. SHELTON
B. Unlawful Arrest
“A claim for unlawful arrest is cognizable under § 1983
as a violation of the Fourth Amendment, provided the arrest
was without probable cause or other justification.” Lacey v.
Maricopa Cnty., 693 F.3d 896, 918 (9th Cir. 2012) (en banc)
(citation and internal quotation marks omitted). “Probable
cause exists if the arresting officers ‘had knowledge and
reasonably trustworthy information of facts and
circumstances sufficient to lead a prudent person to believe
that [the arrestee] had committed or was committing a
crime.’” Maxwell v. Cnty. of San Diego, 697 F.3d 941, 951
(9th Cir. 2012) (quoting United States v. Ricardo D.,
912 F.2d 337, 342 (9th Cir. 1990)).
Blondin was arrested under the following provision of
Washington law: “A person is guilty of obstructing a law
enforcement officer if the person willfully hinders, delays, or
obstructs any law enforcement officer in the discharge of his
or her official powers or duties.” Wash. Rev. Code
§ 9A.76.020(1). The district court concluded that Sgt.
Shelton had probable cause to arrest Blondin because he
failed to back away when ordered to do so.
Defendants’ motion for summary judgment before the
district court addressed the Blondins’ unlawful arrest claim
only in a footnote, urging that the same qualified immunity
arguments offered with regard to excessive force should
apply to the unlawful arrest claim, as well. In granting
Defendants’ motion, the district court erroneously treated the
Blondins’ unlawful arrest claim as a common law “false
arrest” claim. Within that framework, and applying state law,
it determined that there was probable cause for the arrest. We
disagree.
GRAVELET-BLONDIN V. SHELTON 23
The obstruction statute under which Blondin was arrested
has four elements: “(1) an action or inaction that hinders,
delays, or obstructs the officers; (2) while the officers are in
the midst of their official duties; (3) the defendant knows the
officers are discharging a public duty; (4) the action or
inaction is done knowingly.” Lassiter v. City of Bremerton,
556 F.3d 1049, 1053 (9th Cir. 2009) (citing Wash. Rev. Code
§ 9A.76.020). The dispute here centers on the first
element—namely, whether officers had probable cause to
believe Blondin had engaged in an action or inaction that
hindered, delayed, or obstructed the officers.10
In Lassiter, we considered an obstruction arrest made by
officers responding to a domestic violence call with
information that the suspect had threatened to cut his wife’s
throat. Id. When officers asked the suspect to sit down so
that they could keep him away from possible weapons and
ensure the alleged victim’s safety, he refused to sit and then
grabbed the arm of an officer who tried to guide him to a
chair, at which point the officer “pushed him to the floor and
handcuffed him.” Id. at 1051. Because the suspect’s behavior
involved “[m]ore than just a momentary noncompliance with
police orders,” “made it impossible for the police to carry out
their duty,” and “had the practical effect of precluding the
officers from securing the scene and investigating a possible
assault,” we determined there was probable cause to arrest
him for obstruction. Id. at 1053.
10
The Blondins also contend that Sgt. Shelton lacked probable cause as
to the fourth element, urging that a 1994 amendment to the obstruction
statute added a specific intent requirement and there was no basis for
suspecting Blondin had such specific intent. But the Washington Supreme
Court foreclosed this argument when it held that the 1994 amendment did
not change the statute’s mens rea requirement. Bishop v. City of Spokane,
173 P.3d 318, 321 (Wash. 2007).
24 GRAVELET-BLONDIN V. SHELTON
In reaching that conclusion, we found it helpful to
distinguish a prior case, MacKinney v. Nielson, 69 F.3d 1002(9th Cir. 1995). See Lassiter, 556 F.3d at 1053. In
MacKinney, the plaintiff was writing messages critical of the
police on a public sidewalk using sidewalk chalk when an
officer ordered him to stop writing. 69 F.3d at 1004. Before
stopping, he proceeded to underline the last phrase of his
message. Id. We held there was no probable cause to arrest
MacKinney for obstruction for that momentary
noncompliance. Id.The district court’s finding of probable cause in this case
relies heavily on State v. Lalonde, 665 P.2d 421 (Wash.
1983).11 There, officers responding to a complaint of a loud
party became involved in physical altercations with underage
partygoers. Id. at 423. Lalonde approached an officer to “try
to talk to him and calm things down.” Id. Though Lalonde
“was told several times to get back, and was physically forced
back when he approached the officers, he continued to
reapproach and persisted in his attempt to ‘keep things
calm.’” Id. He was then arrested for obstruction. Id.Affirming Lalonde’s conviction, the Washington Supreme
Court held that a person’s knowledge that an officer was
attempting to arrest someone, and their subsequent act of
“reapproaching and conversing with the officer,” could be
considered obstruction. Id. at 426. The court emphasized
that Lalonde had admitted he was attempting to get the
officers to stop what they were doing and made clear that his
11
Beyond key factual differences, Lalonde involved a criminal appeal
from an obstruction conviction, so the Washington Supreme Court was
interpreting the evidence in the light most favorable to the government,
contrary to our review here. Lalonde, 665 P.2d at 425.
GRAVELET-BLONDIN V. SHELTON 25
obstruction was in “the acts which accompanied his words.”
Id.
Here, in contrast, Blondin did not continue to reapproach
after he was ordered to stop and get back. He did not persist
in inquiring after his neighbor, and there is no evidence that
he was attempting to get the officers to stop what they were
doing. He engaged in none of the acts Lalonde found
obstructionist; instead, like the plaintiff in MacKinney,
Blondin failed to comply “for only a few seconds.”
MacKinney, 69 F.3d at 1006. A genuine issue of fact
therefore remains as to whether there was probable cause to
arrest Blondin for obstruction, and, as a result, whether doing
so violated his constitutional rights.
Because the district court analyzed unlawful arrest as a
state law claim, it failed to consider qualified immunity or
Monell liability and should do so on remand. See
Richardson v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010)
(declining to reach qualified immunity because it was not
addressed by the district court); Burke v. Cnty. of Alameda,
586 F.3d 725, 734 (9th Cir. 2009) (remanding for district
court to examine Monell liability in the first instance).
C. Common Law Claims
We turn now to the Blondins’ common law claims for
malicious prosecution and outrage. A malicious prosecution
claim has five elements under Washington law: (1) the
defendant instituted or continued a prosecution against the
plaintiff; (2) without probable cause; (3) with malice; (4) the
prosecution terminated in the plaintiff’s favor; and (5) the
plaintiff was injured or damaged as a result of the
prosecution. Lassiter, 556 F.3d at 1054 (citing Clark v.
26 GRAVELET-BLONDIN V. SHELTON
Baines, 84 P.3d 245, 248–49 (Wash. 2004)). The parties
dispute only the second element—the basis on which the
district court granted summary judgment. See Hanson v. City
of Snohomish, 852 P.2d 295, 298 (Wash. 1993) (probable
cause is a defense to the tort of malicious prosecution).
Having concluded that Sgt. Shelton may have lacked
probable cause to arrest Blondin, we reverse the grant of
summary judgment in favor of Defendants on the malicious
prosecution claim.
Washington’s “outrage” tort provides a cause of action for
conduct “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable in a
civilized community.” Kloepfel v. Bokor, 66 P.3d 630, 632
(Wash. 2003) (quoting Grimsby v. Samson, 530 P.2d 291, 295
(Wash. 1975)) (internal quotation marks omitted). To prove
outrage, a plaintiff must establish “(1) extreme and
outrageous conduct, (2) intentional or reckless infliction of
emotional distress, and (3) actual result to plaintiff of severe
emotional distress.” Id. “Although the three elements are
fact questions for the jury, th[e] first element of the test goes
to the jury only after the court ‘determine[s] if reasonable
minds could differ on whether the conduct was sufficiently
extreme to result in liability.’” Robel v. Roundup Corp.,
59 P.3d 611, 619 (Wash. 2002) (quoting Dicomes v. State,
782 P.2d 1002, 1013 (Wash. 1989)).
The district court granted summary judgment to
Defendants because Ms. Blondin failed to show that (1) she
was particularly susceptible to emotional distress and that
Sgt. Shelton knew as much, and (2) Sgt. Shelton knew she
could observe him tasing her husband. These conclusions are
incorrect.
GRAVELET-BLONDIN V. SHELTON 27
The Washington Supreme Court addressed “unique
susceptibility” as a relevant inquiry in Contreras v. Crown
Zellerbach Corp., 565 P.2d 1173 (Wash. 1977), an outrage
case based on racial discrimination, slurs, and comments. Id.
at 1174. Contreras explained that the defendants “knew or
should have known that by reason of [the plaintiff’s] Mexican
nationality and background he was particularly susceptible to
emotional distress as a result of [their] conduct.” Id. at 1177.
The plaintiff was not required to show any particular
susceptibility, beyond his status as a racial minority, to
establish that defendants should have known that racially
derogatory behavior would cause him emotional distress.
Here, Ms. Blondin was uniquely susceptible to emotional
distress in observing the tasing of her husband by virtue of
being his wife. There are sufficient facts—including Sgt.
Shelton’s threat to Ms. Blondin after tasing her husband,
which indicates an awareness on his part that the two were a
pair—to establish that Sgt. Shelton knew or should have
known that Ms. Blondin was susceptible to emotional distress
as a result of observing the tasing of her husband.
In determining that the Blondins failed to establish that
Sgt. Shelton knew Ms. Blondin was in the vicinity and could
observe her husband’s tasing, the district court improperly
resolved a fact question in Sgt. Shelton’s favor. It explained
that “[o]ne of the officers testified during his deposition that
[Ms. Blondin] was still on her own property when the officers
handcuffed [Blondin].” This statement falls far short of
establishing whether Ms. Blondin was close enough to see the
tasing, or whether Sgt. Shelton knew as much. That after
threatening Blondin with further tasing Sgt. Shelton turned to
Ms. Blondin, warning that she was “next,” certainly suggests
she was close enough to observe the incident, and that Sgt.
Shelton knew exactly where she was. Whether this incident
28 GRAVELET-BLONDIN V. SHELTON
was “extreme and outrageous” is for a factfinder to
determine.
IV. CONCLUSION
In light of the foregoing, we reverse the grant of qualified
immunity to Sgt. Shelton and the grant of summary judgment
to the City on the Blondins’ excessive force claim. We also
reverse the district court’s grant of summary judgment based
on the determination that probable cause existed for
Blondin’s arrest, and we remand for further proceedings on
the unlawful arrest claim. Finally, we reverse the grant of
summary judgment on the Blondins’ common law claims.
REVERSED AND REMANDED.
NGUYEN, Circuit Judge, dissenting:
The majority goes badly astray because it loses sight of
the specific context of this case and employs hindsight rather
than viewing the scene through the eyes of a reasonable
officer. Blondin interjected himself into a rapidly-evolving,
highly volatile scene: officers struggling to restrain a
combative, armed man in the process of trying to take his
own life. At the time Blondin was tased, two loaded firearms
were unsecured. Yet, at every turn, the majority attempts to
minimize the precariousness of the situation, thinly splicing
the facts to assess Blondin’s conduct—and the reasonableness
of the officers’ response—in a vacuum. It is one thing to
resolve disputed facts and inferences in Blondin’s favor. But
the majority goes well beyond this by choosing to ignore
undisputed facts which do not favor Blondin’s case. By
GRAVELET-BLONDIN V. SHELTON 29
discounting the danger and abstracting the qualified immunity
inquiry, the majority’s approach fails to accord appropriate
deference to an officer’s reasonable judgment exercised under
exigent circumstances. Because the majority fails to follow
the Supreme Court’s dictate to assess the use of force “from
the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight[,]” Graham v.
Connor, 490 U.S. 386, 396 (1989), I respectfully dissent.
I.
A.
“Qualified immunity gives government officials breathing
room to make reasonable but mistaken judgments about open
legal questions.” Ashcroft v. al-Kidd, — U.S. —, 131 S. Ct.
2074, 2085 (2011). The doctrine protects government
officials “from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In
evaluating whether a constitutional right was clearly
established at the time of the conduct, the Supreme Court has
instructed us to ask whether its contours were “‘sufficiently
clear’ that every ‘reasonable official would have understood
that what he is doing violates that right.’” al-Kidd, 131 S. Ct.
at 2083 (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). While “[w]e do not require a case directly on
point, . . . existing precedent must have placed the statutory
or constitutional question beyond debate.” Id.In applying the “clearly established” rule, we must be
careful to “faithfully guard[] ‘the need to protect officials
who are required to exercise their discretion and the related
30 GRAVELET-BLONDIN V. SHELTON
public interest in encouraging the vigorous exercise of
official authority.’” Mattos v. Agarano, 661 F.3d 433, 442
(9th Cir. 2011) (en banc) (quoting Harlow, 457 U.S. at 807).
“We must also allow ‘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.’”
Id. (quoting Graham, 490 U.S. at 396–97).
B.
Was the law sufficiently clear on the evening of May 4,
2008 such that any reasonable officer would have known that
tasing Blondin for two seconds was an excessive use of force
in light of the specific circumstances? I think not.
For starters, consider the undisputed facts. Officers
responded to a 911 call regarding a suicide-in-progress.
Suicide calls are dangerous, as a suicidal suspect can quickly
become homicidal. Any officer attempting to stop someone
in the process of committing suicide faces a risk that the
suspect will try to take out others along with him, or choose
to “go out in a blaze of glory” and open fire in the hope that
he will be gunned down by return fire (known colloquially as
“suicide-by-cop”). Here, moreover, the officers had been
specifically warned by the person who called 911 (a family
member of the suicidal man, Jack Hawes) that Hawes owned
a gun and would have it with him.
When the officers arrived, they observed Hawes sitting in
his vehicle, running an exhaust pipe into one of the windows.
They couldn’t see his weapon. Hawes complied with their
orders to step out of the vehicle, but refused to obey orders to
GRAVELET-BLONDIN V. SHELTON 31
show his hands. A scuffle ensued as the officers attempted to
restrain, locate his weapon, and secure him.
Enter Blondin. Wearing shorts and slippers, Blondin
suddenly approached the scene, yelling “What are you doing
to Jack?” (Note the accusatory phrasing of this question: not
“What’s going on here?” or “Is everything alright, officers?”
but “What are you doing to Jack?”) Blondin’s presence and
question signaled to the officers that (1) Blondin was not a
random passerby, but someone who had come out of his
house to see what was going on; (2) Blondin knew the
suspect on a first name basis; and (3) Blondin was concerned
that the officers were “doing” something to his
friend/neighbor.
The parties dispute how far Blondin was standing from
the fray, but accepting Blondin’s view (as we must), he was
thirty-seven feet away from where Hawes was struggling with
the officers. This is not terribly far; to put it in perspective,
thirty-seven feet is little more than half the distance between
the pitcher’s mound and home plate.1 During his deposition
(and again in a declaration) Blondin recounted how, in
response to his question about what they were doing to Jack,
an officer yelled at him to “get back.”2 According to a
1
See Major League Baseball, http://mlb.mlb.com/mlb/official_info/
baseball_basics/on_the_field.jsp# (last visited Aug. 15, 2013) (distance
between the pitcher’s mound and home plate is 60 feet, 6 inches).
2
Although there is some evidence in the record indicating that one
officer also yelled at Blondin to stop, nothing in Blondin’s deposition
testimony or declaration indicates that he heard this order and tried to
comply, or even that he was confused about whether to stop or get back.
Rather, Blondin concedes that he knew he was ordered to “get back” but
explained that he failed to comply because: “I don’t know why.…I tried
32 GRAVELET-BLONDIN V. SHELTON
passerby who testified on Blondin’s behalf, officers ordered
Blondin to get back five or six separate times. Yet, for
approximately fifteen seconds, Blondin stood inexplicably
“frozen,” refusing to comply with officers’ orders. The
majority dismisses this as a mere “momentary failure to
move[,]” slip op. at 15, but fifteen seconds is a long time to
remain motionless when multiple police officers are yelling
at you to retreat. (Try counting to fifteen one-thousand out
loud, and see for yourself.)
Although the majority makes much of a passerby’s
testimony that, in his opinion, Blondin was frozen “with
fear,” slip op. at 9, Blondin did nothing that would
objectively convey to the officers why he was refusing to
back away. View the scene from a reasonable officer’s
perspective, as the Supreme Court tells us we must: officers
were in the midst of tense, rapidly-evolving circumstances,
trying to restrain a combative suicidal man with an unsecured
firearm. One of the officers, Deputy Bowman, had his back
facing the direction in which Blondin was approaching, with
a loaded, unsecured rifle slung on his back. Suddenly, a man
who knew the suspect purposely interjected himself into the
scene, demanded to know what was going on, and refused to
comply with repeated commands to retreat—even when
warned that he would be tased if he didn’t do so.
Even if we assume that Sgt. Shelton’s use of force was
excessive, why wasn’t his mistake reasonable? What
precedent existed in May 2008 such that every reasonable
officer would have understood that it was unlawful to tase
to make my feet move. I tried to get out of there, it just didn’t work.”
Moreover, it is undisputed that Blondin was ordered to “get back”
multiple times after the purportedly contradictory command to stop.
GRAVELET-BLONDIN V. SHELTON 33
Blondin for two seconds under these circumstances? Which
case placed this constitutional question “beyond debate” in
2008? al-Kidd, 131 S. Ct. at 2083. I don’t know. Nor is it
evident from the majority’s opinion, which, rather than
squarely addressing these questions, re-frames the inquiry
instead.
The issue here, the majority says, is whether “the right to
be free from non-trivial force for engaging in mere passive
resistance was clearly established prior to 2008.” Slip op. at
12; see also slip op. at 3 (“We must decide whether it was
clearly established as of 2008 that the use of a taser in dart
mode against a passive bystander amounts to
unconstitutionally excessive force within the meaning of the
Fourth Amendment.”). This formulation is wrong in two
respects. First, it contravenes the Supreme Court’s
instruction that the qualified immunity inquiry “must be
undertaken in light of the specific context of the case, not as
a broad general proposition.” Saucier, 533 U.S. at 201.
Indeed, the Court has expressly taken us to task for failing in
this regard. See al-Kidd, 131 S. Ct. at 2084 (“We have
repeatedly told courts—and the Ninth Circuit in
particular—not to define clearly established law at a high
level of generality.”) (internal citations omitted).3 I recognize
that the inquiry need not be so narrowly defined as to allow
3
There may be an exception to this rule: When “the defendant’s conduct
is so patently violative of the constitutional right that reasonable officials
would know without guidance from the courts that the action was
unconstitutional, closely analogous pre-existing case law is not required
to show that the law is clearly established.” Deorle v. Rutherford,
272 F.3d 1272, 1286 (9th Cir. 2001) (citation, internal quotation marks,
and alteration omitted). However, the majority does not appear to contend
that this case is so patently egregious such that officers required no
specific guidance from caselaw.
34 GRAVELET-BLONDIN V. SHELTON
the officers to “define away all potential claims.” Nelson v.
City of Davis, 685 F.3d 867, 883–84 (9th Cir. 2012) (quoting
Kelley v. Borg, 60 F.3d 664, 667 (9th Cir. 1995)). However,
by analyzing whether Blondin’s right was clearly established
without reference to the specific factual context, the majority
not only brushes off the Supreme Court’s instructions, it
departs from the same cases upon which it goes on to rely.
See, e.g., See Nelson v. City of Davis, 685 F.3d 867, 884 (9th
Cir. 2012) (“All that remains is to determine whether the law
was sufficiently clearly established that a reasonable officer
would have been on notice that the use of pepperball
projectiles directed towards [the plaintiff] and his friends was
unreasonable under the circumstances.”); Headwaters Forest
Def. v. Cnty. of Humboldt, 276 F.3d 1125, 1130 (9th Cir.
2002) (concluding that “it would be clear to a reasonable
officer that using pepper spray against the protestors was
excessive under the circumstances”).
Second, as I’ve already suggested, the majority’s factual
characterization is somewhat misleading. Blondin, for
example, was not a simply a “passive bystander[,]” slip op. at
3—he came out of his house in slippers, demanding to know
what the officers were “doing to Jack.” Likewise, describing
Blondin’s conduct as a “total lack of resistance,” slip op. at
18, obscures the undisputed fact that Blondin repeatedly
failed to comply with officers’ orders to retreat. While the
majority emphasizes that Blondin was initially given a
“contradictory” order to stop, slip op. at 10; see also slip op.
at 15, Blondin’s own testimony refutes the majority’s
supposition that he froze in an effort to comply, or out of
confusion. Dismissing Blondin’s non-compliance as “mere
passive resistance” also unfairly imports the benefit of
hindsight; in the heat of the moment, Sgt. Shelton didn’t know
whether Blondin’s resistance was going to be “merely”
GRAVELET-BLONDIN V. SHELTON 35
passive, or whether Blondin was going to suddenly bolt in
Hawes’s direction. In this sense, the majority’s post-hoc
confidence in Blondin’s passivity undercuts the very point of
the inquiry: whether, under the circumstances, an officer
could have reasonably interpreted Blondin’s inexplicable
non-compliance as a threat.
Lastly, even if the majority is correct that we may look to
cases which do not involve tasers, slip op. at 13, framing our
inquiry in terms of “non-trivial force” still paints with too
broad a brush. All “non-trivial force” is not created alike.
Here, specifically, the majority employs “non-trivial force”
to mean tasing someone for two seconds in dart mode. But
“non-trivial force” also covers, among other things, firing a
lead-filled beanbag round into someone’s face with enough
force to gouge out their eye, fracture their cranium, and leave
a lead shot embedded in their skull. See Deorle v.
Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001). Any
reasonable officer might know that the constitution would
prohibit firing a lead-filled beanbag round into Blondin’s face
from short range. But tasing him for two seconds? That’s a
much closer call. Thus, in my view, asking whether law
regarding the use of “non-trivial force” was clearly
established is not a fair benchmark by which to gauge an
reasonable officer’s understanding of the legality of his
actions.
Moreover, I fail to see how the cases relied upon by the
majority made the “contours [of Blondin’s right] sufficiently
clear that every reasonable official would have understood
that what [Sgt. Shelton did] violated that right.” Mattos,
661 F.3d at 442 (citation and internal quotation marks
omitted). While precedent need not be squarely on all fours,
see al-Kidd, 131 S. Ct. at 2083, we nevertheless require
36 GRAVELET-BLONDIN V. SHELTON
“closely analogous pre-existing case law” to show that the
law is clearly established. Deorle, 272 F.3d at 1275(emphasis added).
Here, the cases which the majority concludes set forth
clearly established law are far from closely analogous. To
wit, it relies upon: (1) Nelson v. City of Davis, 685 F.3d 867(9th Cir. 2012), in which an officer shot a college student in
the eye with a pepperball projectile without any warning,
causing him multiple surgeries, permanent eye injuries, and
ultimately the loss of his college scholarship, where the
student did not disobey police orders (which weren’t even
given until after the projectile was shot), but was merely part
of a large party that police were trying to break up, id. at
873–74, 881; (2) Deorle v. Rutherford, 272 F.3d 1272 (9th
Cir. 2001), which involved an officer who—again, without
warning—fired a lead-filled beanbag round into the face of an
unarmed suicidal man who had complied with officers’
instructions, resulting in the loss of the man’s left eye and
other serious injuries, id. at 1285–86; (3) Headwaters Forest
Def. v. Cnty. of Humboldt, 276 F.3d 1125 (9th Cir. 2002), in
which officers sprayed peaceful protestors in the face with
pepper spray from a few feet away, forcibly pried open
protesters’ eyes, and stuck in Q-tips containing pepper spray,
id. at 1128–29; and (4) Casey v. City of Fed. Heights,
509 F.3d 1278 (10th Cir. 2007), a Tenth Circuit case in which
a plaintiff who was peacefully returning to the courthouse
(where he had unsuccessfully challenged a traffic ticket) with
a file he should not have removed “had his shirt torn, and
then [was] tackled, Tasered, knocked to the ground by a bevy
of police officers, beaten, and Tasered again, all without
GRAVELET-BLONDIN V. SHELTON 37
warning or explanation[,]” id. at 1285.4 I strongly disagree
with the majority’s conclusion that, in light of this precedent,
every reasonable officer would know that tasing Blondin for
two seconds under the circumstances presented constituted
excessive force. See Mattos, 661 F.3d at 448.
One final point. In three recent cases involving the use of
tasers in dart mode, we granted officers qualified immunity
upon concluding that the law was not sufficiently clear as of
2005 and 2006 to render the alleged constitutional violations
clearly established. See Mattos v. Agarano, 661 F.3d 433,
452 (9th Cir. 2011) (en banc); Brooks v. City of Seattle,
reviewed jointly with Mattos, 661 F.3d at 443–48; Bryan v.
MacPherson, 630 F.3d 805, 833 (9th Cir. 2010). And, as the
district court correctly recognized, “[b]y May 2008, the state
of the law in this circuit was no clearer; no Supreme Court or
Ninth Circuit opinion was issued in the interim.” The
majority nevertheless asserts that Mattos, Brooks, and Bryan
are distinguishable in “one critical respect: Blondin engaged
in no behavior that could have been perceived by Sgt. Shelton
as threatening or resisting.” Slip op. at 14. This assertion,
however, is not only shaded with the benefit of hindsight, it
is inconsistent with undisputed facts in the record. Blondin
did engage in behavior that could have objectively been
perceived as resisting, if not threatening: for fifteen seconds
he refused to comply with officers’ repeated orders to back
away from a dangerous, volatile scene. Accordingly,
Blondin’s purported lack of resistance cannot justify
departing from the holdings in Mattos, Brooks, and Bryan.
4
The majority also mentions other out-of-circuit taser cases in a
footnote, slip op. at 13–14, n.6, for purposes of distinguishing them from
taser cases in our circuit. It does not, however, appear to rely on these
cases as support for its conclusion that the law was clearly established.
38 GRAVELET-BLONDIN V. SHELTON
*****
In sum, I believe that the law did not clearly establish that
Sgt. Shelton’s conduct violated Blondin’s constitutional
rights. I therefore would affirm the district court’s holding
that the officers are entitled to qualified immunity on
Blondin’s excessive force claim.
II.
The same errors which permeate the majority’s analysis
of Blondin’s excessive force claim also taint its discussion of
Blondin’s claims for unlawful arrest and malicious
prosecution. To succeed on both of these claims, Blondin
must establish the absence of probable cause. See Lacey v.
Maricopa Cnty., 693 F.3d 896, 918 (9th Cir. 2012) (en banc)
(“A claim for unlawful arrest is cognizable under § 1983 as
a violation of the Fourth Amendment, provided the arrest was
without probable cause or other justification.”) (citation
omitted) (emphasis added); id. at 919 (“To claim malicious
prosecution, a petitioner must allege that the defendants
prosecuted her with malice and without probable cause, and
that they did so for the purpose of denying her equal
protection or another specific constitutional right.”) (citation
and internal quotation marks omitted) (emphasis added).
Blondin was arrested for obstruction under a Washington
statute providing that “a person is guilty of obstructing a law
enforcement officer if the person willfully hinders, delays or
obstructs any law enforcement officer in the discharge of his
or her official powers or duties.” RCW 9A.76.020. Whether
there was probable cause to arrest Blondin for violating this
statute is a far easier hurdle to clear than the majority
suggests.
GRAVELET-BLONDIN V. SHELTON 39
In my view, the undisputed facts show that Sgt. Shelton
had probable cause to arrest Blondin for obstruction. As the
Supreme Court has explained, “it is clear that ‘only the
probability, and not a prima facie showing, of criminal
activity is the standard of probable cause.’” Illinois v. Gates,
462 U.S. 213, 235 (1983) (citation omitted). Under the
totality of circumstances, there was at least a reasonable
probability that Blondin’s knowing refusal to comply with
officers’ repeated orders to back away from an active crime
scene diverted their attention from performance of their
official duties and created a potential safety hazard. A
reasonable officer therefore had at least probable cause to
believe that Blondin was obstructing the officers’ efforts to
restrain Hawes and secure his firearm.
Accordingly, I would affirm the grant of summary
judgment on both the unlawful arrest and malicious
prosecution claims.
III.
Nor do I agree with the majority that Kristi Gravelet-
Blondin’s state-law outrage claim should survive summary
judgment. To succeed on this claim, the alleged misconduct
must be “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable in a
civilized community.” Kloepfel v. Bokor, 66 P.3d 630, 632
(Wash. 2003) (citation omitted). Factors that courts may
consider in conducting this analysis include “the position
occupied by the defendant, whether the plaintiff was
peculiarly susceptible to emotional distress, the defendant’s
knowledge of such fact and whether defendant’s conduct may
have been privileged under the circumstances.” Grimsby v.
40 GRAVELET-BLONDIN V. SHELTON
Samson, 530 P.2d 291, 295 (Wash. 1975); see also Spurrell
v. Bloch, 701 P.2d 509, 535 (Wash. Ct. App. 1985).
Taking its cue from the district court, the majority hones
in on whether Ms. Blondin was particularly susceptible to
emotional distress, and if the defendants knew this fact. Slip
op. at 26–28. But even accepting that, as Blondin’s wife, Ms.
Blondin was “particularly susceptible” to distress upon seeing
him tased (and that Sgt. Shelton knew as much), this is still
not enough to create a triable issue of fact as to whether the
conduct was sufficiently extreme. It is undisputed that Sgt.
Shelton tased Blondin for only two seconds following
Blondin’s refusal to comply with repeated orders. It is also
undisputed that immediately after Blondin was tased, officers
summoned paramedics to remove the barbs and check his
vital signs.5
Under the totality of circumstances I believe that no
reasonable juror could conclude that Sgt. Shelton’s conduct
was atrocious, extreme, or beyond all possible bounds of
decency. Grimbsy, 530 P.2d at 295. Accordingly, I would
affirm the district court’s grant of summary judgment on Ms.
Blondin’s common law outrage claim.
IV.
In sum, I would hold that the officers are entitled to
qualified immunity, and that the Blondins’ unlawful arrest
and common law claims fail as a matter of law. I therefore
respectfully dissent.
5
Blondin declined further medical attention.