FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VALERIE GREGORY, individually as
a Special Administrator of the
Estate of Richard J. Gregory,
deceased, and as next friend of
Isreal Gregory, a minor; Keanu
Gregory, a minor; Kalani Gregory,
No. 06-15374
a minor; and Shayisse Gregory, a
minor,
Plaintiffs-Appellants,
D.C. No.
CV-04-00516-SPK
v. OPINION
COUNTY OF MAUI; MAUI POLICE
DEPARTMENT; GARRET TIHADA;
EDWIN K. AMONG; NICHOLAS E.
ANGELL,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Samuel P. King, Senior District Judge, Presiding
Argued and Submitted
November 6, 2007—Honolulu, Hawaii
Filed April 29, 2008
Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge O’Scannlain
4611
4614 GREGORY v. COUNTY OF MAUI
COUNSEL
David J. Gierlach, Honolulu, Hawaii, argued the cause for the
plaintiffs-appellants; Brian A. Duus, Honolulu, Hawaii, was
on the brief.
Kenneth Robbins, Robbins & Associates, Honolulu, Hawaii,
argued the cause for the defendants-appellees; Brian T. Moto,
Corporation Counsel, and Laureen L. Martin, Moana M.
Lutey, Richard B. Rost, Deputy Corporation Counsel, County
of Maui, Wailuku, Hawaii, were on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether police officers used excessive
force in violation of the Fourth Amendment in attempting to
restrain an individual.
I
A
On December 2, 2002, Richard Gregory and a friend were
guests in a music studio operated by Vincent Finazzo and
Jason Fuqua in Lahaina, Maui, Hawaii. Finazzo and Fuqua
were playing music and working on new songs, and they
eventually decided to leave the studio and asked Gregory to
do the same. Gregory, however, had taken interest in a guitar
he found and insisted on staying. An exchange soon became
heated, as Gregory took on an increasingly pugnacious tone
and posture, telling Finazzo, “Don’t make me hit you.” When
Finazzo tried to call a friend of Gregory’s to calm him down,
Gregory threw Finazzo’s cell phone to the ground. Gregory
began to pace around the room, stating that “we’re all going
GREGORY v. COUNTY OF MAUI 4615
to hell” and that the devil was in the room. When Finazzo
made a final effort to coax Gregory to leave, Gregory shoved
him into a door.
At that point, Fuqua called the police. Approximately five
minutes later Maui County Police Officers Garret Tihada,
Nick Angell and Ed Among arrived at the scene. A police dis-
patch agent informed the officers that a white male possibly
high on drugs had trespassed on the property and refused to
leave; upon arriving, the officers were informed that Gregory
had hit Finazzo. While Finazzo and Fuqua stood outside the
studio, the officers went inside, where they saw Gregory hold-
ing a pen with its tip pointed at them. The officers later noted
that Gregory appeared to be “high strung, excitable and
jumpy,” speaking loudly and rapidly and informing the offi-
cers that he was a Christian and that God was with him.
The officers repeatedly asked Gregory to put down the pen,
but Gregory refused each request. After Gregory refused a
third time, Officer Angell grabbed Gregory’s right arm and
attempted to swing Gregory’s body around into a position
where the pen would face away from the officers. When
Gregory resisted, Officers Angell and Among pinned Gregory
to the ground and attempted to hold his arms, as Officer
Tihada tried to hold down Gregory’s back and neck, all the
while telling him to relax and not to resist. Officer Tihada was
able to grab the pen and throw it away from Gregory’s reach,
but Gregory still struggled. As the officers continued their
attempt to subdue Gregory, he repeatedly shouted that he
could not breathe, which Officer Tihada told him was impos-
sible because he could talk. While helping to control Gregory,
Officer Tihada used a hold around Gregory’s head and neck
to restrain him, which the officers later insisted was not a
choke hold. The officers did not strike Gregory, nor did they
draw their firearms.
The officers were finally able to handcuff Gregory, but
when they sat him up, they discovered that he was not breath-
4616 GREGORY v. COUNTY OF MAUI
ing. Their efforts to resuscitate him failed, and Gregory was
later pronounced dead from a heart attack. An autopsy con-
ducted by Dr. Anthony Manoukian revealed that Gregory suf-
fered from severe heart disease,1 and that Gregory was under
the influence of marijuana at the time of the confrontation. Dr.
Manoukian concluded that the marijuana use likely contrib-
uted to the heart attack. Regarding Gregory’s statements that
he could not breathe, Dr. Manoukian noted that a sensation of
shortness of breath is a common symptom of a heart attack.
He confirmed that Gregory was breathing during the struggle
since he was able to talk, and noted that there was no sign that
Gregory was choked or that choking contributed to his death.
B
Gregory’s estate sued the officers and the County of Maui
(collectively, “the officers”) under 42 U.S.C. § 1983, alleging
that the officers used excessive force in violation of the
Fourth Amendment, that the county ratified the officers’ use
of such force, and that the county failed properly to train
them. The estate also brought several state-law claims. The
officers moved for summary judgment on all claims, arguing
that the use of force was reasonable, and that in any event
such force was not the proximate cause of Gregory’s death.
In opposition to the motion, the estate provided the deposi-
tion of Dr. Vincent Di Maio, M.D., who stated that Gregory’s
heart attack likely was triggered by Excited Delirium Syn-
drome (“EDS”). According to Dr. Di Maio, EDS involves the
sudden death of an individual in connection with an episode
of excited delirium,2 which in some occasions can be trig-
1
The autopsy report revealed that Gregory’s luminal artery showed 90%
narrowing. Other undisputed medical evidence indicated that narrowing
greater than 70-75% is considered severe.
2
Dr. Di Maio explained that excited delirium involves disorientation,
hallucinations, disturbances in speech and “combative and/or violent
behavior.”
GREGORY v. COUNTY OF MAUI 4617
gered by mental disease or the “heavy use” of marijuana. Dr.
Di Maio stated that in virtually all cases of EDS, the episode
of excited delirium is terminated by a violent struggle with
police or medical personnel and the use of physical restraint,
after which the individual often suffers a heart attack. The
estate argued that the officers should have recognized that
Gregory was in a state of excited delirium, and accordingly
that they used excessive force in physically restraining him.
The district court granted summary judgment to the officers
on all federal claims. Relying on the undisputed facts “that
Gregory was trespassing and acting aggressively,” that Greg-
ory refused to drop the pen in his hand, and that the officers
never drew their weapons or used pepper spray on Gregory,
the district court concluded that “[t]he use of force in response
to it was proportionate and reasonable.”
II
A
[1] To determine whether the force used by the officers was
excessive under the Fourth Amendment, we must assess
whether it was objectively reasonable “in light of the facts and
circumstances confronting [the officers], without regard to
their underlying intent or motivation.” Graham v. Connor,
490 U.S. 386, 397 (1989). “Determining whether the force
used to effect a particular seizure is ‘reasonable’ under the
Fourth Amendment requires a careful balancing of the nature
and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental
interests at stake.” Id. at 396 (internal quotation marks omit-
ted). In this analysis, we must consider the following factors:
(1) the severity of the crime at issue; (2) whether Gregory
posed an immediate threat to the safety of the officers or oth-
ers; and (3) whether Gregory actively resisted arrest. See
Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912,
921 (9th Cir. 2001). “Because such balancing nearly always
4618 GREGORY v. COUNTY OF MAUI
requires a jury to sift through disputed factual contentions,
and to draw inferences therefrom . . . summary judgment or
judgment as a matter of law . . . should be granted sparingly”
in cases involving claims of excessive force. Drummond v.
City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003).
[2] Here, the officers had substantial grounds for believing
that some degree of force was necessary in confronting Greg-
ory. Upon arriving at the scene, the officers were informed
that Gregory had assaulted Finazzo and that he possibly was
under the influence of drugs; it is undisputed that Gregory
acted in a bizarre manner throughout the confrontation. When
the officers entered the studio, they saw Gregory holding a
pen with its point facing toward them.3 While the pen is not
always mightier than the sword, a properly wielded writing
instrument may inflict lethal force. See United States v. Bank-
ston, 121 F.3d 1411, 1412 n.1 (11th Cir. 1997) (noting that a
pen held by a bank robber was a “dangerous weapon” where
the robber threatened to use it to kill a teller).
[3] The officers did not immediately engage in a physical
confrontation with Gregory. Rather, they first asked him to
drop the pen. Only after Gregory repeatedly and expressly
3
The estate argues that a triable issue exists as to whether Gregory held
a pen, relying on a single statement by Fuqua in a deposition that he did
not overhear the officers say that Gregory had anything in his hands. How-
ever, Fuqua stood outside the studio and did not witness the confrontation.
It is undisputed that the studio floors, walls and windows were covered
with four to five layers of carpeting to “keep[ ] most of the sound from
escaping.” Absent from the record are foundational or follow-up questions
concerning how much of the conversation Fuqua was able to hear and how
well he was able to hear it. Under these circumstances, we cannot con-
clude that this isolated statement is sufficient to create a triable issue. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (holding that
“[t]he mere existence of a scintilla of evidence in support of the plaintiff’s
position will be insufficient” to create a triable issue of material fact).
While the estate also makes much of Finazzo’s deposition testimony
that he did not see Gregory holding a pen, it is undisputed that Finazzo
was not in the studio throughout the officers’ confrontation with Gregory.
GREGORY v. COUNTY OF MAUI 4619
refused to comply did they attempt to disarm him, and they
only sought to restrain Gregory once he resisted. There is no
showing that the officers ever struck Gregory, or that they
drew or used a weapon. See Arpin, 261 F.3d at 922 (holding
that officers did not use excessive force in “using physical
force to handcuff” an unarmed suspect who resisted by stiff-
ening her arm).
[4] Accordingly, although the confrontation came to a
tragic end, we must conclude that the officers did not use
excessive force. The severity of Gregory’s trespass and of the
threat he posed were not overwhelming, but we are satisfied
that the force used by the officers was proportionate to both.
The Fourth Amendment does not require more. See Forrester
v. City of San Diego, 25 F.3d 804, 807-08 (9th Cir. 1994)
(“Police officers . . . are not required to use the least intrusive
degree of force possible . . . [T]he inquiry is whether the force
that was used to effect a particular seizure was reasonable.”).
B
We are mindful that cases in which the victim of alleged
excessive force has died “pose a particularly difficult prob-
lem” in assessing whether the police acted reasonably,
because “the witness most likely to contradict [the officers’]
story . . . is unable to testify.” Scott v. Henrich, 39 F.3d 912,
915 (9th Cir. 1994). Accordingly, we must “carefully examine
all the evidence in the record” to determine if the officers’
account of the events is credible. Id. Following such reason-
ing, we have denied summary judgment to defendant police
officers in cases where “a jury might find the officers’ testi-
mony that they were restrained in their use of force not credi-
ble, and draw the inference from the medical and other
circumstantial evidence that the plaintiff’s injuries were
inflicted on him by the officers’ use of excessive force.” San-
tos v. Gates, 287 F.3d 846, 852 (9th Cir. 2002).
4620 GREGORY v. COUNTY OF MAUI
[5] Here, the evidence does not undermine the officers’
account of their encounter with Gregory. To the contrary, the
undisputed evidence supports the officers’ contention that
Gregory acted in an aggressive manner, and that he stub-
bornly refused to comply with the requests of the officers,
Finazzo and Fuqua. Medical evidence shows that Gregory
died of a heart attack caused at least in part by severely nar-
rowed arteries and marijuana use, rather than from choking or
a direct result of force.4 Moreover, even were the officers’
accounts of the confrontation incredible, there is no medical
or circumstantial evidence that could support the conclusion
that the use of force by the officers was excessive. Compare
id. at 853 (holding that circumstantial evidence created a jury
question as to excessive force where, immediately after a con-
frontation with police, Santos’s spine was discovered to have
been broken).
C
The estate argues that, because the officers knew that Greg-
ory was “possibly high on drugs,” and that he was “talking
loudly about God” when they arrived, the officers were objec-
tively unreasonable in failing to recognize that Gregory was
in a state of excited delirium. However, even accepting that
Gregory was in such a state and that the officers should have
recognized it, the officers’ response to the threat Gregory
posed—first confronting him verbally, and only then attempt-
ing to disarm and to restrain him—still was objectively rea-
sonable. Moreover, the deposition testimony and declarations
4
Because there is no evidence that Gregory was choked, there is no tri-
able issue of fact as to whether the officers used a choke hold on Gregory.
It is undisputed that Officer Tihada used a hold around Gregory’s head
and neck, but the undisputed medical evidence shows that there were no
signs of choking or the use of a choke hold on Gregory. Likewise, it is
undisputed that Gregory was able to talk throughout the confrontation, and
the estate presented no evidence rebutting the autopsy’s conclusion that
Gregory must have been able to breathe if he could talk.
GREGORY v. COUNTY OF MAUI 4621
of the officers all confirm that they used a calm tone with
Gregory throughout the confrontation.
[6] The estate apparently does not dispute that such conduct
would pass muster under the Fourth Amendment. Instead, it
argues that there is a triable issue as to whether the officers
“went into the studio and immediately, without warning, initi-
ated the struggle with Gregory.” Yet the undisputed evidence
belies such a claim, as the testimony and declarations in the
record all confirm that the officers spoke to Gregory before
the physical confrontation began. See Scott v. Harris, 127
S. Ct. 1769, 1776 (2007) (“When opposing parties tell two
different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of rul-
ing on a motion for summary judgment.”).
Our holding in Drummond does not suggest that the offi-
cers in this case acted unreasonably. In Drummond, we
reversed a grant of summary judgment to defendant police
officers in an excessive force case. 343 F.3d at 1063. Drum-
mond, a schizophrenic, was “hallucinating and in an agitated
state” in a convenience store parking lot; the officers were
called to take Drummond into custody to “help protect” him.
Id. at 1054. Even though Drummond had not committed a
crime, was not a danger to himself or others, and did not offer
resistance, the officers knocked him to the ground and placed
a knee to the back of his neck as they placed him into protec-
tive custody. Id. The officers continued to restrain Drummond
even after handcuffing him, despite his repeated complaints
that he could not breathe. Id. at 1054-55. Drummond suffered
a heart attack soon thereafter and fell into a permanent coma.
Id. at 1055.
Noting that the situation faced by the officers was “differ-
ent from those involved in law enforcement efforts to subdue
an armed and dangerous criminal who has recently committed
a serious offense,” id. at 1058 (quoting Deorle v. Rutherford,
4622 GREGORY v. COUNTY OF MAUI
272 F.3d 1272, 1282-83 (9th Cir. 2001)), we held that Drum-
mond’s “mental illness must be reflected in any assessment of
the government’s interest in the use of force,” particularly
because Drummond was unarmed and “emotionally dis-
traught.” Id.
[7] Drummond is distinguishable from this case, even
accepting that the officers here should have recognized that
Gregory was “emotionally distraught.” Unlike the police in
Drummond, the officers here did not immediately use force
upon encountering Gregory, but rather first attempted verbally
to coax him into dropping the pen. Moreover, the officers had
reason to believe that Gregory posed a threat to them, because
he refused their requests, acted in an aggressive manner, and
had already assaulted Finazzo. Further, Gregory had commit-
ted an underlying offense, a trespass. See id. at 1057 (noting
that “no underlying crime was ‘at issue’ ”) (emphasis in origi-
nal). Finally, unlike Drummond, Gregory resisted the officers
throughout the encounter, and the officers in this case ceased
using force once Gregory was handcuffed. See id. at 1057-58
(“After he was knock[ed] . . . to the ground where the officers
cuffed his arms behind his back as [he] lay on his stomach,
a jury could reasonably find that he posed only a minimal
threat to anyone’s safety.”) (internal quotation marks omit-
ted). Thus, even though “the governmental interest in using
such force is diminished by the fact that the officers [were]
confronted . . . with a mentally ill individual,” the undisputed
facts show that the officers in this case reasonably used the
minimal force necessary to disarm and to restrain Gregory,
and that they ceased such force once the threat was neutral-
ized. Id. at 1058 (quoting Deorle, 272 F.2d at 1282-83).5
5
The estate also cites Alexander v. County of Los Angeles, 64 F.3d 1315
(9th Cir. 1995), to urge that the officers in this case used excessive force
in “initiat[ing] the struggle with Gregory despite clear symptoms he was
mentally disturbed.” However, Alexander involved officers’ refusal to
loosen handcuffs on a suspect even though he repeatedly informed officers
that he was a dialysis patient, and where the officers had agreed to loosen
another suspect’s handcuffs. Id. at 1322-23. The excessive force in that
case occurred after Alexander had been handcuffed, whereas in this case
there is no showing that any force was applied once Gregory was hand-
cuffed.
GREGORY v. COUNTY OF MAUI 4623
III
[8] Because we conclude that the officers did not use exces-
sive force in violation of the Fourth Amendment, the estate’s
§ 1983 claims against the county also fail. See City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986) (“If a person has
suffered no constitutional injury at the hands of the individual
police officer, the fact that the departmental regulations might
have authorized the use of constitutionally excessive force is
quite beside the point.”) (emphasis omitted); Blankenhorn v.
City of Orange, 485 F.3d 463, 484 (9th Cir. 2007) (noting that
a failure to train claim requires a showing that the victim suf-
fered an actual deprivation of a constitutional right).
IV
The district court disposed of all the estate’s federal claims
on summary judgment, but did not expressly address the
estates’ state law claims. Accordingly, we infer that the dis-
trict court declined to retain supplemental jurisdiction over the
remaining state law claims under 28 U.S.C. § 1367(c). See
Summum v. Duchesne, 482 F.3d 1263, 1275-76 (10th Cir.
2007).
V
For the foregoing reasons, we are persuaded that the offi-
cers’ use of force was reasonable. The decision of the district
court is therefore AFFIRMED.