FILED
NOT FOR PUBLICATION JUL 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
DOUGLAS LUTHER MYSER, No. 09-35540
Plaintiff - Appellant, D.C. No. 2:06-cv-00024-FVS
v.
MEMORANDUM *
SPOKANE COUNTY; JEFFREY M.
SHOVER; MARK GREGORY; BRETT
PETERSON; PETE BUNCH, in their
capacities as police officers for Spoµane
County and as individuals,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sicµle, District Judge, Presiding
Argued and Submitted July 16, 2010
Seattle, Washington
Before: RYMER and N.R. SMITH, Circuit Judges, and HART, Senior District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable William T. Hart, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.
Douglas Myser appeals the district court's determination, after a bench trial,
that he was not subjected to excessive force by the officers in this case. We affirm.
Myser faults the district court for having required him to prove subjective
intent to striµe his head against the floor, but we read the opinion differently. The
court recognized that the inquiry is purely objective. It considered the Graham
factors, Graham v. Connor, 490 U.S. 386 (1989), and concluded that an objective
law enforcement officer in the position of the officers in this case could have
concluded that Myser would not voluntarily leave the bar, that he would not
peacefully submit to their authority, that he was prepared to hurt them, and that it
was necessary to resolve the standoff quicµly. The court's subsequent remarµ that
the officers did not intend to striµe Myser's head against the floor was not part of
this decision. Accordingly, we believe it was not meant to suggest that Myser's
proof fell short on this account and the comment is, therefore, harmless.
Myser also argues that the court erroneously expected him to show that the
officers µnowingly pushed his head into the carpet while he was on the floor. We
taµe the court's footnote to be responding to Myser's contention that he was
subjected to deadly force because 'the deputies intentionally and repeatedly pushed
his head into the carpet while he was on the floor' - not to be articulating a
different standard by which the force that was actually administered (which did not
include repeatedly pushing his head into the floor or striµing him in the head)
should be judged.
Finally, Myser submits that the use of force was severe as in cases such as
Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005), and Davis v. City of Las
Vegas, 478 F.3d 1048 (9th Cir. 2007). While the injury Myser suffered is
undoubtedly unfortunate, the force applied was nowhere near the level of severity
in Smith or Davis. Although the crime was not all that serious, the incident
occurred in a crowded bar on Super Bowl Sunday, Myser was inebriated, refused
to identify himself or leave voluntarily, resisted being escorted out, and assumed a
fighting stance verbally and physically. When he could have cooperated with the
officers, he didn't. Given all the circumstances, the district court did not clearly err
in finding that the use of force was not unreasonable. Graham, 490 U.S. at 396-97.
AFFIRMED.
FILED
Myser v. Spoµane County JUL 22 2010
No. 09-35540 MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
RYMER, Circuit Judge, concurring in part and dissenting in part.
I agree that the district court did not clearly err in its findings, though I am
not as certain as my colleagues what the court meant in its conclusions. I thinµ it is
possible to read the first Conclusion of Law as including the officers' lacµ of intent
to striµe Myser's head against the floor among the totality of the circumstances that
the court tooµ into consideration. It is also unclear to me what footnote 1 is meant
to cover. It parallels Finding of Fact No. 47 ('While he was down, no deputy
µnowingly strucµ his head against the floor.') and suggests to me the possibility
that the court thought that taµing an action µnowingly was a requirement. Given
this uncertainty, and the fact that it was a bench trial, I would remand for the court
to revisit its findings and conclusions in light of the unquestioned rule that the test
for excessive use of force is purely objective.