FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK ANTHONY YOUNG,
Plaintiff-Appellant, No. 09-56372
v.
D.C. No.
2:08-cv-05438-R-RZ
COUNTY OF LOS ANGELES and
RICHARD WELLS, Deputy, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted
February 8, 2011—Pasadena, California
Filed August 26, 2011
Before: Stephen Reinhardt, Johnnie B. Rawlinson, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Reinhardt
16441
16446 YOUNG v. COUNTY OF LOS ANGELES
COUNSEL
John C. Fattahi and Dale K. Galipo, Woodland Hills, Califor-
nia, and Paul Hoffman, Venice, California, for the plaintiff-
appellant.
Raymond G. Fortner, Robert H. Granbo and Steven J. Renick,
Los Angeles, California, for the defendants-appellees.
OPINION
REINHARDT, Circuit Judge:
This case arises from a traffic stop for a seatbelt violation
in which Los Angeles County Sheriff’s Deputy Richard Wells
pepper sprayed Mark Anthony Young and struck him with a
baton after Young exited his vehicle and disobeyed Wells’s
order to reenter it. Young filed this action against Wells and
the County of Los Angeles, claiming that Wells’s use of force
was excessive under the Fourth Amendment, and also that
YOUNG v. COUNTY OF LOS ANGELES 16447
Wells’s conduct constituted false imprisonment and negli-
gence under California tort law.1 The district court granted
summary judgment to the defendants on all of Young’s
claims. We affirm the grant of summary judgment on
Young’s false imprisonment claim. However, because we
conclude that the use of intermediate force is unreasonable
when an officer has detained a suspect for minor infractions
and the suspect clearly poses no threat to the officer or the
public safety, we reverse as to Young’s excessive force and
negligence claims.2
I.
Because on summary judgment the evidence of the non-
moving party is assumed to be true, see Narayan v. EGL, Inc.,
616 F.3d 895, 899 (9th Cir. 2010), we set forth the facts as
alleged by Young, noting only those factual disagreements
that are relevant to our decision here. At approximately 10:22
a.m. on a February morning in 2007, Young, a 46-year-old
African-American probation officer, was driving his truck to
the gym, wearing workout clothes and enjoying a snack of
broccoli and tomato, when Deputy Wells pulled him over for
driving with an unfastened seatbelt. An audio recording of the
exchange that followed indicates that Wells informed Young
of the basis for the traffic stop, and that Young conceded not
1
Young’s suit included another state law claim that is not at issue in this
appeal.
2
Defendants Wells and the County of Los Angeles submitted a joint
brief that does not assert any separate defenses on behalf of the County.
As the County has rested its defense of this appeal upon the simple prem-
ise that Young’s claims against Wells are meritless, our disposition of this
appeal addresses only the merits of those claims without regard to any sep-
arate defenses that the County might have raised in light of its status as
a municipal defendant. Accordingly, our disposition of Young’s claims
against Wells apply equally to his claims against the County. For the sake
of simplicity, we refer in the text to the positions taken in the defendants’
brief as Wells’s positions, when they are in actuality those of both Wells
and the County, and our holdings apply to the County, as well as to Wells.
16448 YOUNG v. COUNTY OF LOS ANGELES
only that he had failed to fasten his seatbelt, but also that his
car was missing both a side-mirror and a rear license plate.
Young provided Wells with his driver’s license and proof of
insurance, but was unable to immediately find his vehicle reg-
istration. Wells told Young to continue searching for the reg-
istration and returned to his motorcycle to begin writing
Young’s citation.
When Young found his registration, he exited his truck car-
rying both the registration and his vegetables, walked to
Wells’s motorcycle, and handed Wells the registration. Wells
took the registration and ordered Young to “just have a seat
in the truck.” Young declined to do so, stating, “I don’t feel
like sitting in my truck, man.”3 Instead, Young walked past
his truck, sat on the sidewalk curb, and resumed eating his
broccoli. The exchange between Wells and Young continued:
DEPUTY WELLS: Mr. Young —
MR. YOUNG: I don’t feel —
DEPUTY WELLS: — I’m not asking you what
you feel like—
MR. YOUNG: — sitting —
DEPUTY WELLS: — doing.
MR. YOUNG: — in my truck.
DEPUTY WELLS: Have a seat in your truck,
please.
3
As is explained in Part III, infra, Wells’s order that Young reenter his
truck was a lawful one, and Young’s refusal to obey was a violation of
Cal. Penal Code § 148(a)(1) that gave Wells probable cause to arrest him.
Whether the force he used was reasonable is a separate question. Blanken-
horn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007).
YOUNG v. COUNTY OF LOS ANGELES 16449
MR. YOUNG: I don’t feel like sitting in my truck,
officer.
DEPUTY WELLS: Mr. Young, have a seat —
MR. YOUNG: I don’t feel like sitting in my truck.
DEPUTY WELLS: — in your truck, please. Mr.
Young, have a seat —
MR. YOUNG: I don’t feel like sitting in my —
DEPUTY WELLS: — in your truck, please.
MR. YOUNG: — truck.
DEPUTY WELLS: Mr. Young, have a seat in
your truck please. Until you sit in your truck, I can’t
write you the ticket. You want me to hurry up and
write the ticket. Have a seat in your truck, please.
Mr. Young. Mr. Young.
Young contends that shortly afterwards, while he was still sit-
ting on the sidewalk curb, Wells approached him from behind4
and pepper sprayed him. The audio transcript of the stop sug-
gests Young was unaware he was about to be pepper sprayed:
MR. YOUNG: You going to give me no — I’m an
officer of the law, sir . . . You don’t give me warn-
ing.
DEPUTY WELLS: I don’t have to give you a warn-
ing.
4
Young’s declaration states, “I felt liquid on my head, and turned my
head around and saw Deputy Wells holding a can of pepper spray for the
first time. I rose to my feet and tried to back away from the pepper spray.
Deputy Wells continued to spray me.”
16450 YOUNG v. COUNTY OF LOS ANGELES
Wells does not argue on this appeal that Young posed any
physical threat to him prior to his use of pepper spray, nor that
he reasonably or unreasonably feared such a threat.5
Wells continued to pepper spray Young as he rose to his
feet and attempted to back away from the pepper spray.
Young protested, repeatedly telling Wells, “I’m an officer of
the law.” Young asserts that Wells responded to his protests
by drawing his baton, striking him a number of times with it,
and ordering him to get on the ground.
Wells asserted in his motion for summary judgment that he
struck Young with the baton because he “believed that
[Young] was trying to gain a position of advantage over
[him], from which position he could then launch an assault,”
and that he “believed that [Young] was about to throw the
broccoli at [him] in order to cause a distraction before assault-
ing him.” However, on this appeal, Wells makes no claim that
his decision to strike Young with a baton was motivated by
safety concerns.
Despite being struck, Young did not immediately get on the
ground, and continued to object to Wells’s use of force, say-
ing, for example, “I’m not going to let you hit me another
time,” and “How you going to pepper spray me?” At this
point, a second sheriff’s deputy, Michael Berk, arrived on the
scene, and, like Wells, ordered Young to lie on the ground.
Young did so, and Berk handcuffed him and placed his knee
on his back. Young contends that after he lay on the ground,
Wells struck him with a baton again. As he lay handcuffed on
his stomach with Officer Berk on his back, Young com-
plained that Berk had handcuffed him too tightly, to which
Berk responded, “Well, you know what, that’s part of not
5
Additionally, while Wells recorded in his incident report that Young
had responded to his orders with the objection, “Fuck you, I don’t want
to, I’m eating my vegetables,” the audio transcript records no such state-
ment by Young.
YOUNG v. COUNTY OF LOS ANGELES 16451
going along with the program.” Young continued to complain
vocally about Wells’s use of force, stating that his eyes were
burning from the pepper spray, that he had not been warned
prior to Wells’s use of the spray, and that, “You cannot pep-
per spray nobody. You cannot just pepper spray nobody, offi-
cer.” Berk replied to this last statement by saying, “If you
keep getting agitated, I’m going to pepper spray you.” Young
asked to be allowed to stand up and to have his handcuffs
loosened; Berk stated that “until you calm down, I ain’t going
to help you.” After several minutes in which Young strenu-
ously objected to his treatment — in particular, to the fact that
Berk continued to press his knee into his back — the officers
allowed Young to stand, and placed him in the back of Berk’s
police car.
Young filed suit against both Wells and the County of Los
Angeles in the Central District of California, and the district
court granted summary judgment for the defendants on all
counts. We review that judgment de novo, “viewing the evi-
dence in the light most favorable to the non-moving party to
determine the presence of any issues of material fact.” Benay
v. Warner Bros. Entertainment, Inc., 607 F.3d 620, 624 (9th
Cir. 2010).
II.
[1] Young appeals the district court’s grant of summary
judgment to Wells on his excessive force claim. Summary
judgment is appropriate here only if, taking the facts in the
light most favorable to Young, a reasonable jury could not
find that “the officer’s conduct violated a constitutional
right[.]” Saucier v. Katz, 533 U.S. 194, 201 (2001). Claims
for excessive force are analyzed under the Fourth Amend-
ment’s prohibition against unreasonable seizures using the
framework articulated in Graham v. Connor, 490 U.S. 389
(1989). The reasonableness of a seizure turns on “whether . . .
officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them,” id. at 397, which
16452 YOUNG v. COUNTY OF LOS ANGELES
we determine by balancing “the nature and quality of the
intrusion on the individual’s Fourth Amendment interests
against the countervailing governmental interests at stake,” id.
at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985))
(internal quotation marks omitted). In conducting the balanc-
ing required by Graham, we first “assess the gravity of the
particular intrusion on Fourth Amendment interests.” Miller v.
Clark County, 340 F.3d 959, 964 (9th Cir. 2003). Second, we
“assess the importance of the government interests at stake.”
Id. Finally, we “balance the gravity of the intrusion on the
individual against the government’s need for that intrusion to
determine whether it was constitutionally reasonable.” Id.
[2] If we determine that, taking the facts in the light most
favorable to Young, the defendant’s conduct amounts to a
violation of a constitutional right, we then determine whether
the defendant is entitled to qualified immunity by assessing
whether “the right at issue was clearly established at the time
of defendant’s alleged misconduct.” Pearson v. Callahan, 129
S. Ct. 808, 816 (2009) (internal quotation marks omitted).
1. Nature and Quality of Intrusion
[3] The gravity of the particular intrusion that a given use
of force imposes upon an individual’s liberty interest is mea-
sured with reference to “the type and amount of force inflict-
ed.” Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir.
2001). Young contends that Wells pepper sprayed him as he
sat on the sidewalk eating his broccoli and continued to do so
as he rose to his feet and attempted to back away from the
pepper spray. Young further alleges that Wells attempted to
strike him in the head with a baton, that he blocked “eight or
more” such attempts with his arms before Wells landed a
solid baton blow to his shin, and that Wells struck him again
with the baton after he had lain down on the ground.6
6
Wells argues that Young has failed to raise a genuine issue of material
fact as to whether he was required to block “eight or more” baton swings
YOUNG v. COUNTY OF LOS ANGELES 16453
[4] Both pepper spray and baton blows are forms of force
capable of inflicting significant pain and causing serious
injury. As such, both are regarded as “intermediate force”
that, while less severe than deadly force, nonetheless present
a significant intrusion upon an individual’s liberty interests.
See Smith v. City of Hemet, 394 F.3d 689, 701-02 (9th Cir.
2005); United States v. Mohr, 318 F.3d 613, 623 (4th Cir.
2003).
Pepper spray “is designed to cause intense pain,” and
inflicts “a burning sensation that causes mucus to come out of
the nose, an involuntary closing of the eyes, a gagging reflex,
and temporary paralysis of the larynx,” as well as “disorienta-
tion, anxiety, and panic.” Headwaters Forest Defense v.
County of Humboldt, 240 F. 3d 1185, 1199-1200 (9th Cir.
2000), vacated and remanded on other grounds, 534 U.S. 801
(2001); see also United States v. Neill, 166 F.3d 943, 949-50
(9th Cir. 1999) (affirming district court finding that pepper
spray is a “dangerous weapon” under the U.S. Sentencing
Guidelines and describing trial evidence that pepper spray
causes “extreme pain” and is “capable of causing ‘protracted
impairment of a function of a bodily organ’ ” as well as life-
long health problems such as asthma). The evidence includes
a declaration by a retired Los Angeles County Sheriff’s
Department lieutenant who testified as a police practices
aimed at his head because the audio recording of the incident captures
Young exclaiming to passersby, “This man pepper sprayed me and hit me
twice with a baton because I didn’t have my seatbelt on.” Because this
brief audio snippet does not render Young’s factual claim “blatantly con-
tradicted by the record, so that no reasonable jury could believe it,” Scott
v. Harris, 550 U.S. 372, 380 (2007), the question of how many times
Young was struck is an issue for the jury. Moreover, even if Wells struck
Young only twice, Young’s assertions would still be sufficient to raise a
genuine issue of material fact, especially given that he alleges that one of
the two baton blows that he did not block occurred while he was lying
face-down on the ground. See Blankenhorn, 485 F.3d at 480 (holding gen-
uine issue of material fact existed as to whether force used was excessive
where officer punched suspect who was lying face-down on the ground).
16454 YOUNG v. COUNTY OF LOS ANGELES
expert and stated that the basic curriculum of the California
Commission on Peace Officer Standards and Training7
(POST) instructs officers that “the use of pepper spray can
have very serious and debilitating consequences,” and that
“[a]s such, it should only be generally used as a defensive
weapon and must never be used to intimidate a person or
retaliate against an individual.”
A police officer’s use of baton blows, too, presents a signif-
icant use of force that is capable of causing pain and bodily
injury, and therefore, baton blows, like pepper spray, are con-
sidered a form of “intermediate force.” Mohr, 318 F.3d at
623. Young’s evidence shows that California law enforcement
officers are taught that a baton is a deadly weapon that can
cause deep bruising as well as blood clots capable of precipi-
tating deadly strokes, and that batons should therefore be used
“only as a response to aggressive or combative acts.” Further-
more, Los Angeles County Sheriff’s Department policies
instruct officers that “[h]ead strikes with an impact weapon
are prohibited unless circumstances justify the use of deadly
force.” Cf. Thompson v. City of Chicago, 472 F.3d 444, 451
& nn. 18-19 (7th Cir. 2006) (describing Chicago Police
Department policies limiting the use of “impact weapons”
such as batons to “high-level, high-risk assailants” who
“pose[ ] a threat of serious bodily injury or death to officers
and the public.”).
[5] The amount of force used in this case was significant
as well. Young alleges that Wells began pepper spraying him
as he sat on the sidewalk curb and continued doing so as he
stood up and backed away from him, suggesting that his
exposure to pepper spray lasted for at least several seconds
and involved more than just a minimal burst designed to star-
7
The Commission sets minimum training standards for all California
law enforcement personnel. See The Commission on Peace Officer Stan-
dards and Training, Commission on POST—Home, http://post.ca.gov/
(last visited August 19, 2011).
YOUNG v. COUNTY OF LOS ANGELES 16455
tle him and alert him to the seriousness of the situation and
the potential for use of greater force. Similarly, Young alleges
that in addition to landing two baton blows to his legs (includ-
ing one while he was restrained on the ground), Wells swung
the baton at Young’s head multiple times.
[6] In pepper spraying Young and striking at him multiple
times with a baton while landing at least two blows, Wells
used a significant amount of two forms of intermediate force
known to cause serious pain and to lead in some cases to seri-
ous physiological consequences. Whatever such force is ulti-
mately labeled, there is no question that its use against an
individual is a sufficiently serious intrusion upon liberty that
it must be justified by a commensurately serious state interest.
2. Governmental Interest
[7] In evaluating the government’s interest in the use of
force we look to: “(1) the severity of the crime at issue, (2)
whether the suspect posed an immediate threat to the safety
of the officers or others, and (3) whether the suspect was
actively resisting arrest or attempting to evade arrest by
flight.” Miller, 340 F.3d at 964. However, our inquiry is not
limited to these factors. Rather, recognizing that “the facts
and circumstances of every excessive force case will vary
widely,” Forrester v. City of San Diego, 25 F.3d 804, 806 n.2
(9th Cir. 1994) (quotation marks omitted), our ultimate
inquiry addresses “whether the totality of the circumstances
justifie[s] a particular sort of . . . seizure,” Garner, 471 U.S.
at 8-9.
[8] Of the three factors we traditionally examine in deter-
mining the governmental interest, the most important is
whether the individual posed an immediate threat to officer or
public safety. Smith, 394 F.3d at 702. Here, this factor deci-
sively favors a finding that Wells used excessive force upon
Young both in pepper spraying him and in striking him with
a baton. Wells does not contend that Young posed any threat
16456 YOUNG v. COUNTY OF LOS ANGELES
whatsoever to an officer or to public safety prior to the use of
the pepper spray. Nor could Wells plausibly allege any such
safety threat: Young was sitting on the curb eating his broc-
coli with his back turned to Wells when Wells began to pep-
per spray him, and the record does not suggest that Young
was threatening Wells or the public in any way. See Bryan v.
McPherson, 630 F.3d 805, 832-33 (9th Cir. 2010) (concluding
suspect posed no immediate threat to officer where “[t]he
facts suggest that [the suspect] was not even facing [the offi-
cer] when he was shot [with a taser].”). The record is thus
clear and the parties do not dispute that no reasonable safety
concern warranted Wells’s use of pepper spray upon Young.
[9] With respect to Wells’s use of baton blows after Young
stood up from the curb, Wells again does not argue on appeal
that his use of force was motivated by any concern for his
safety. However, on summary judgment he submitted as an
exhibit a contemporaneous incident report in which he stated
that his baton blows were motivated by safety concerns, stat-
ing that “the manner in which Young was moving and circling
me caused me to believe that he was trying to gain a position
of advantage over me” and that he feared Young “was going
to throw the broccoli at me as a distraction before assaulting
me.” Even if Wells had advanced this argument on appeal, it
would for two reasons be inadequate to support a grant of
summary judgment with respect to Young’s claim that
Wells’s use of the baton constituted excessive force. First, “a
simple statement by an officer that he fears for his safety or
the safety of others is not enough; there must be objective fac-
tors to justify such a concern.” Deorle, 272 F.3d at 1281; see
also Graham, 490 U.S.at 396 (“The ‘reasonableness’ of a par-
ticular use of force must be judged from the perspective of a
reasonable officer on the scene . . . .”). Here, whether objec-
tive factors supported Wells’s supposed subjective fear is not
a question that can be answered as a matter of law based upon
the limited evidence in the record, especially given that on
summary judgment that evidence must be construed in the
light most favorable to Young, the non-moving party. See
YOUNG v. COUNTY OF LOS ANGELES 16457
Benay, 607 F.3d at 624. Rather, whether Wells’s claim that he
feared a broccoli-based assault is credible and reasonable
presents a genuine question of material fact that must be
resolved not by a court ruling on a motion for summary judg-
ment but by a jury in its capacity as the trier of fact. See
Deorle, 272 F.3d. at 1281.
Second, whether a startled Young rose to his feet, “moving
and circling” Wells also presents a genuine issue of fact.
Moreover, it would hardly be surprising if Young did so given
that he had just been unexpectedly pepper sprayed while sit-
ting on the curb eating his broccoli. This court has recognized
that an officer’s “provocative conduct” can trigger an individ-
ual’s “limited right to offer reasonable resistance.” Arpin v.
Santa Clara Valley Transp. Agency, 261 F.3d 912, 921 (9th
Cir. 2001). We have held that police conduct similar to
Wells’s qualifies as sufficiently provocative to trigger this
limited right of resistance, and a jury could easily conclude
that Young’s alleged conduct of “moving” and “circling” —
far from indicating any objective safety threat to Wells — was
simply a reasonable response from an individual who was
pepper sprayed from behind without warning while sitting on
the sidewalk. See Blankenhorn, 485 F.3d at 479-80 (holding
limited right to resistance applied where “arresting officers
gave no warning that they were going to arrest [a suspect who
refused an officer’s order to kneel down to be handcuffed]
before gang-tackling him and later applying hobble
restraints”; observing that “[t]he lack of forewarning, the
swiftness, and the violence with which the defendant officers
threw themselves upon Blankenhorn could reasonably be con-
sidered ‘provocative,’ triggering Blankenhorn’s limited right
to reasonable resistance and thus making their later use of the
hobble restraints unreasonable”).
Moreover, Young asserts that one of Wells’s baton blows
against him took place as Young lay face-first on the ground.
Were a jury to deem this assertion credible it could readily
conclude that the force used was far in excess of any safety
16458 YOUNG v. COUNTY OF LOS ANGELES
concerns, reasonable or otherwise, that might have motivated
Wells’s alleged conduct.
In short, no safety concern whatsoever appear to have justi-
fied Wells’s decision to approach a sitting Young from behind
and pepper spray him, and Wells’s declaration that his baton
strikes were justified by a reasonable fear for his safety—an
argument that he has not advanced in defending this appeal—
would, at most, suffice to raise a jury question as to whether
his use of force was justified by an immediate threat to his
safety. Thus, the single most important factor in assessing the
government’s interest in the use of force weighs heavily
against the district court’s grant of summary judgment to
Wells.
[10] In addition to immediate safety threats, in determining
whether there is a sufficiently strong governmental interest to
justify a given use of force we must consider “the severity of
the crime at issue.” Miller, 340 F.3d at 964. Young committed
two offenses prior to Wells’s use of force. First, he drove his
truck without fastening his seatbelt, the offense that led Wells
to initiate the traffic stop. Second, after exiting his truck to
provide Wells with his registration, Young refused Wells’s
instructions to re-enter the truck, insisting on sitting on the
curb and eating his broccoli instead, thus committing the mis-
demeanor offense of interfering with a peace office in viola-
tion of Cal. Pen. Code § 148(a)(1); see also Cal. Pen. Code
§ 17(b) (defining misdemeanor offenses under California
law). Young’s failure to wear a seatbelt was a run-of-the-mill
traffic violation that clearly provided little, if any, support for
the use of force upon him. See Bryan, 630 F.3d at 828
(“Traffic violations generally will not support the use of a sig-
nificant level of force.”) (citing Delville v. Mercantel, 567
F.3d 156, 167 (5th Cir. 2009)). And while disobeying a peace
officer’s order certainly provides more justification for force
than does a minor traffic offense, such conduct still consti-
tutes only a non-violent misdemeanor offense that will tend to
justify force in far fewer circumstances than more serious
YOUNG v. COUNTY OF LOS ANGELES 16459
offenses, such as violent felonies.8 See, e.g., Bryan, 630 F.3d
at 828-29 (“While the commission of a misdemeanor offense
is not to be taken likely, it militates against finding the force
used to effect an arrest reasonable where the suspect was also
nonviolent and posed no threat to the safety of the officers or
others.”) (quoting Headwaters I, 240 F. 3d at 1204) (internal
quotation marks omitted). When, as here, a suspect’s disobe-
dience of a police officer takes the form of passive noncom-
pliance that creates a minimal disturbance and indicates no
threat, immediate or otherwise, to the officer or others, it will
not, without more, give rise to a governmental interest in the
use of significant force. Because neither of Young’s suspected
offenses indicated that he posed a danger to Wells or the pub-
lic such that there would be a heightened interest in the use
of force to subdue him, the “severity of the crime at issue”
weighs against a finding that the government had an interest
in the use of significant force.
[11] Finally, in assessing the governmental interest in force
we consider whether the suspect “was actively resisting arrest
or attempting to evade arrest by flight.” Miller, 340 F.3d at
964. This factor, too, weighs against a finding that the govern-
ment had a significant interest in the use of force in this case.
Young was not being placed under arrest nor attempting to
8
Although we note that both of the offenses of which Young was sus-
pected were misdemeanors, a crime’s status as a misdemeanor or felony
is not the key question but rather provides a rough proxy for the true
object of the court’s inquiry: whether a given offense indicates a suspect’s
potential dangerousness, immediate or otherwise, such that there is a
heightened social interest in the use of force to apprehend or subdue that
suspect. See Garner, 471 U.S at 14 (“And while in earlier times the gulf
between the felonies and the minor offences was broad and deep, today
the distinction is minor and often arbitrary. . . . Indeed, numerous misde-
meanors involve conduct more dangerous than many felonies.”) (internal
citations and quotation marks omitted). While the fact that Young was sus-
pected only of misdemeanor offenses weighs against a finding that the use
of significant force against him was justified, it is ultimately the non-
violent and relatively minor nature of his suspected offenses that is of
more importance.
16460 YOUNG v. COUNTY OF LOS ANGELES
flee when Wells began to pepper spray him; in fact, Wells
pepper sprayed him before even providing him with a warn-
ing that he could be arrested for his noncompliance with
Wells’s order that he reenter his truck. Nor, according to
Young, did Wells make any statements or take any action that
could have been construed as an attempt to initiate an arrest
prior to striking him with his baton.
[12] In addition to the three factors that we traditionally
consider in evaluating the governmental interest in a given
use of force, all of which weigh in favor of a determination
that the government had a minimal interest in the use of sig-
nificant force, Wells urges that after Young refused the order
to reenter his truck, his “only options were to abandon his
attempt to get [Young] to comply with his lawful order or to
resort to force.” The record in this case would not compel a
reasonable jury to accept Wells’s position that if he had not
used force at the moment he did, he would have had no alter-
native but to acquiesce in Young’s disobedience of his order.
Wells had a variety of less intrusive options at his disposal
when Young refused his orders: Wells could have warned
Young that he would be placed under arrest if he did not com-
ply with the order; he could have warned Young that disobe-
dience would lead Wells to use force against him; he could
have simply begun to effect Young’s arrest by attempting to
handcuff him; or he could have called for assistance as he
apparently did in order to summon Berk to the scene. Wells
chose none of these options, thus bypassing a variety of less
painful and potentially injurious measures that would have
been both feasible and reasonable under the circumstances.
Instead, he proceeded to employ a level of intermediate force
that caused Young significant pain and threatened serious
bodily injury. That he did so given the availability of other,
less intrusive measures makes clear just how limited was the
government’s interest in the use of significant force. See, e.g.,
Bryan, 630 F.3d at 831 (“[W]hile by no means dispositive,
that Officer MacPherson did not provide a warning before
deploying the [taser] and apparently did not consider less
YOUNG v. COUNTY OF LOS ANGELES 16461
intrusive means of effecting Bryan’s arrest factor significantly
into our Graham analysis.”); Blankenhorn, 485 F.3d at 478
(holding jury question existed as to whether officers used
excessive force in gang-tackling a suspect where officer asked
suspect to kneel down to be handcuffed, suspect refused, and
officers “did not try to handcuff Blankenhorn before the three
officers tackled him”); Deorle, 272 F.3d at 1284 (“[W]arnings
should be given, when feasible, if the use of force may result
in serious injury, and . . . the giving of a warning or the failure
to do so is a factor to be considered in applying the Graham
balancing test.”).
3. Balancing Governmental Interest Against Nature of
Intrusion
We conclude our analysis of whether the force used by
Wells was reasonable by balancing “the gravity of the intru-
sion on the individual against the government’s need for that
intrusion.” Miller, 340 F.3d at 964. The intermediate force
used by Wells indisputably constituted a significant intrusion
upon Young’s liberty interests. In assessing the countervailing
governmental interest that we must balance against that intru-
sion, as explained above, all three factors traditionally used to
assess the government’s interest weigh against a finding that
the force used in this case was reasonable. First, the “immedi-
ate threat to safety of the officer or others,” Miller, 340 F.3d
at 964, was negligible: Wells has never argued that Young
posed any sort of safety threat prior to his use of pepper spray,
and to the extent that he argued in the district court that his
baton blows were justified by fears for his safety, such argu-
ments would, at most, suffice to raise a jury question as to
whether it was reasonable for him to fear an assault from a
man who had failed to wear his seatbelt and was armed only
with broccoli and a tomato — a man who had not in any way
threatened him or indicated any propensity for violent behav-
ior. Second, the crimes involved in Young’s traffic stop were
non-violent misdemeanors committed in a manner that gave
no indication of dangerousness to Wells or others, and thus
16462 YOUNG v. COUNTY OF LOS ANGELES
not sufficiently “severe” to justify the use of significant force.
Finally, Young was not actively resisting arrest or attempting
to flee. As well, while not included among the factors we tra-
ditionally consider, the fact that Wells could have feasibly
employed less intrusive measures prior to his use of force sug-
gests that the government’s interest in the use of significant
force was extremely limited, if not altogether non-existent.
[13] Having determined that the force allegedly used
against Young was significant and that the governmental
interest in the use of that force minimal, we conclude that,
taking the facts in the light most favorable to Young, the force
used by Wells was excessive in violation of the Fourth
Amendment.
Our conclusion comports with the logical notion that it is
rarely necessary, if ever, for a police officer to employ sub-
stantial force without warning against an individual who is
suspected only of minor offenses, is not resisting arrest, and,
most important, does not pose any apparent threat to officer
or public safety. Indeed, we have found the use of pepper
spray to be excessive in such circumstances even when a
warning was provided. Headwaters Forest Defense v. County
of Humboldt, 276 F.3d 1125, 1129-30 (9th Cir. 2002) (Head-
waters II). In Headwaters II, police officers used pepper spray
upon non-violent environmental protesters who entered a
lumber company’s headquarters, linked themselves together
using “self-releasing lock-down devices” known as “black
bears,” and refused to disengage even after police officers
ordered them to do so and warned them that they would be
pepper sprayed if they did not comply. Id. at 1127-28.
Emphasizing that “pepper spray was unnecessary to subdue,
remove, or arrest the protesters,” id. at 1130, and that the offi-
cers had non-violent means of extricating the protesters from
the black bears, id., we held that, “the use of pepper spray on
the protestors’ eyes and faces was plainly in excess of the
force necessary under the circumstances, and no reasonable
officer could have concluded otherwise.” Id. at 1131. So, too,
YOUNG v. COUNTY OF LOS ANGELES 16463
here, Wells’s purported use of pepper spray and baton blows
in response to Young’s failure to obey an order would be
“plainly in excess of the force necessary under the circum-
stances,” id., and thus excessive under the Fourth Amend-
ment.
4. Qualified Immunity
[14] Having determined that, “[t]aken in the light most
favorable to the party asserting the injury . . . the facts alleged
show the officer’s conduct violated a constitutional right,”
Saucier, 533 U.S. at 201, we must ask whether, “the right at
issue was ‘clearly established’ at the time of defendant’s
alleged misconduct,” Pearson, 129 S. Ct. at 816, such that “it
would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted,” Saucier, 533 U.S. at
202. The Supreme Court has explained that, “officials can still
be on notice that their conduct violates established law even
in novel factual circumstances,” and has rejected, “a require-
ment that previous cases be ‘fundamentally similar’ ” to the
facts at issue in a suit. Hope v. Pelzer, 536 U.S. 730, 741
(2002). Rather, the relevant inquiry is whether the state of the
law at the time of the official conduct complained of was such
as to give the defendants “fair warning” that their conduct was
unconstitutional — that a fair application of well-established
legal principles would warrant such a conclusion. Id.
[15] The legal principles that dictate our conclusion that
the force involved was excessive were clearly established and
indeed, long-standing, prior to 2007, the time of the use of
force at issue in this case. Graham’s holding that the Fourth
Amendment allows only such force as is objectively reason-
able under the circumstances was well-established long before
that time, see Graham, 490 U.S. at 396-97, as was the fact
that objective reasonableness is determined through “a careful
balancing of the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the counter-
vailing governmental interests at stake,” id. at 396. Similarly
16464 YOUNG v. COUNTY OF LOS ANGELES
well-established were the criteria by which the government’s
interest in a given use of force is determined. See Miller, 340
F.3d at 964.
[16] Relying upon that established law, we held in
Blankenhorn that police officers violated Fourth Amendment
principles that were clearly established by 2001, the time at
which they gang-tackled an individual who was suspected of
trespassing and disobeyed an officer’s order to kneel down
and be handcuffed. 485 F.3d at 468, 479. We noted that “the
severity of the alleged crime, misdemeanor trespass, was min-
imal,” id. at 478, that a jury could conclude the suspect “did
not pose a serious threat to the officers’ or others’ safety,” id.,
and that, notwithstanding the suspect’s refusal to kneel down,
a jury could conclude he was not actively resisting arrest, id.
at 479. On the basis of those observations we held that a ratio-
nal jury “could conclude the gang tackle was unreasonable
under the circumstances,” id. at 478, and thus violated the
suspect’s Fourth Amendment rights. What is more, we held
that the officers in Blankenhorn were not entitled to qualified
immunity because Graham’s reasonableness standard pro-
vided them with notice that their conduct was unconstitu-
tional. We explained that,
[i]n assessing the state of the law at the time of
Blankenhorn’s [2001] arrest, we need look no further
than Graham’s holding that force is only justified
when there is a need for force. We conclude that this
clear principle would have put a prudent officer on
notice that gang-tackling without first attempting a
less violent means of arresting a relatively calm tres-
pass suspect — especially one who had been cooper-
ative in the past and was at the moment not actively
resisting arrest — was a violation of that person’s
Fourth Amendment rights.
485 F.3d at 481. The principle that it is unreasonable to use
significant force against a suspect who was suspected of a
YOUNG v. COUNTY OF LOS ANGELES 16465
minor crime, posed no apparent threat to officer safety, and
could be found not to have resisted arrest, was thus well-
established in 2001, years before the events at issue in this
case. Just as in Blankenhorn, these well-established principles
of Fourth Amendment law sufficed to put Wells on notice that
the force used was excessive — that to pepper spray an indi-
vidual and strike him with a baton for disobeying a traffic
officer’s order to get back in his car (and sitting instead on the
curb eating his broccoli) constituted a violation of the Fourth
Amendment.
In addition to Blankenhorn’s holding as to the notice pro-
vided to reasonable officers by 2001, our holding in Headwa-
ters II would have provided a reasonable officer in Wells’s
position with specific and unambiguous notice that the use of
pepper spray and baton blows constituted excessive force. In
Headwaters II, we held that police officers employ excessive
force in violation of the Fourth Amendment when they use
pepper spray upon an individual who is engaged in the com-
mission of a non-violent misdemeanor and who is disobeying
a police officer’s order but otherwise poses no threat to the
officer or others. 276 F.3d. at 1131. While the facts in Head-
waters II are in some respects distinct from those of this case,
that case’s straightforward holding would have provided
explicit and unambiguous notice to any reasonable officer in
Wells’s position that the use of intermediate force in general,
and of pepper spray in particular, would, under the circum-
stances as alleged in this case, constitute an excessive
response to a suspect’s commission of a misdemeanor and
disobedience of a police order. See Hope, 536 U.S. at 741
(holding that factually identical precedents are not required
for law to be clearly established for qualified immunity pur-
poses).
[17] Because the legal rules dictating the result reached in
this case were well-established at the time of Wells’s conduct,
16466 YOUNG v. COUNTY OF LOS ANGELES
we conclude that the district court erred in granting summary
judgment on the issue of qualified immunity.9
III.
[18] Young also appeals the district court’s grant of sum-
mary judgment to Wells as to his false imprisonment claim.
Under California law, the elements of a claim for false impris-
onment are: “(1) the nonconsensual, intentional confinement
of a person, (2) without lawful privilege, and (3) for an appre-
ciable period of time, however brief.” See Easton v. Sutter
Coast Hosp., 80 Cal. App. 4th 485, 496 (Cal. App. 2000). The
only element at issue in this appeal is whether Wells had law-
ful privilege to arrest Young. Young contends that Wells
lacked “lawful privilege” to arrest him for two reasons. We
address each in turn.
[19] Young first argues that he did not violate § 148(a)(1)
because Wells’s order that he reenter his vehicle was an
unlawful attempted seizure in violation of the Fourth Amend-
ment, and § 148(a)(1) prohibits only refusal to comply with a
peace officer’s lawful orders. See Smith, 394 F.3d at 695. In
United States v. Williams, 419 F.3d 1029 (9th Cir. 2005), we
held that the Fourth Amendment allows an officer to order a
passenger who has exited an automobile during a traffic stop
to reenter the vehicle. Id. at 1030-31. Young argues that Wil-
9
Our conclusion that Wells is not entitled to summary judgment on his
qualified immunity claim is further supported by the evidence presented
by Young that the minimum training standards for California law enforce-
ment personnel instruct that both pepper spray and batons are painful,
potentially dangerous weapons that should be used only as defensive
weapons in response to a suspect’s aggressive actions. While our holding
that Wells is not entitled to qualified immunity in this case ultimately rests
not on such training standards, but on clearly established constitutional
law principles and holdings, the fact that Wells’s alleged conduct violated
basic police practice makes clear that a reasonable officer in Wells’s posi-
tion would have had abundant notice that the conduct at issue was unlaw-
ful.
YOUNG v. COUNTY OF LOS ANGELES 16467
liams does not govern this case because Young was not the
vehicle’s passenger, but rather its driver. However, the rea-
soning upon which our conclusion in Williams was based
applies with no less force when it is the driver who is ordered
to reenter a vehicle. Like an order to a passenger, an order that
a driver reenter a vehicle during a traffic stop intrudes only
minimally upon the individual’s liberty interests, “because
only the [driver’s] location during the stop is affected.” Id. at
1033 (citing Maryland v. Wilson, 519 U.S. 408, 414 (1997)).10
Balanced against that limited intrusion is the important “value
of giving officers control over the movement of people
involved in a traffic stop [in order to] limit[ ] the risk of dan-
ger to the police.” Id. at 1034.11 We therefore hold that, con-
sistent with this court’s reasoning in Williams, a police officer
issuing a traffic citation does not violate the Fourth Amend-
ment by ordering a driver to reenter his vehicle for the dura-
tion of a traffic stop. Based upon this holding, we conclude
10
Indeed, Williams noted that drivers have even more limited liberty
interests during a traffic stop than do passengers, because, “there is proba-
ble cause to stop the driver based on the traffic infraction.” Id. at 1032.
11
Williams emphasized that “[a]llowing a passenger . . . to wander freely
about while a lone officer conducts a traffic stop presents a dangerous situ-
ation by splitting the officer’s attention between two or more individuals.”
Id. at 1034. Young argues that this rationale is inapplicable here, as Wells
needed to account for only one individual during the course of the traffic
stop. However, our holding in Williams did not rest on the fact that the
stopped car contained more than one individual. Rather, it rested on the
need to allow an officer to safely perform his duties during the stop with-
out being distracted by the need to ensure that an individual who has wan-
dered from a vehicle poses no threat to the officer or the public safety. See
id. (emphasizing “the value of giving officers control over the movement
of people involved in a traffic stop as helpful in limiting the risk of danger
to the police and the occupants of the car.”). Here, although Young was
the only individual for whom Wells needed to account, the task of
accounting for Young’s movements and actions threatened to distract
Wells from the performance of his duties, specifically the completion of
Young’s traffic citation. We see no reason to deem Williams inapplicable
simply because Wells’s attention was divided between Young’s move-
ments and the completion of a citation, rather than between the move-
ments of two individuals.
16468 YOUNG v. COUNTY OF LOS ANGELES
that Wells’s order that Young reenter his vehicle was a lawful
one that, under § 148(a)(1), Young was required to obey.
[20] Young’s second argument as to why Wells lacked
probable cause to arrest him is that Young’s repeated state-
ments to Deputy Wells that he would not re-enter his vehicle
were acts of expression protected by the First Amendment.
Young relies upon People v. Quiroga, 16 Cal. App. 4th 961
(Cal. App. 1993), which held that an individual who protested
repeatedly before complying with an officer’s orders could
not be prosecuted under § 148(a)(1) because verbal challenges
to police action are protected by the First Amendment. Id. at
966. However, Young’s case is distinct from Quiroga because
although the defendant in Quiroga did not “respond with alac-
rity” to an officer’s orders, id., he did ultimately respond to
them. Id. at 964 (“Appellant argued before complying with the
order.”) (emphasis added). Young was not arrested for pro-
testing prior to complying with Deputy Wells’s order to reen-
ter his truck, but for failing altogether to comply with the
order. While Young did verbally protest Wells’s order, his
failure to reenter his truck was not an act of expression pro-
tected by the First Amendment, but rather a simple failure to
obey a police officer’s lawful instructions.
[21] Because Wells’s order that Young reenter his vehicle
was lawful and Young’s refusal to obey was not an act of
speech protected by the First Amendment, Wells had the
authority to arrest Young for disobeying a peace officer’s
order in violation of § 148(a)(1). Young has thus failed to
establish an essential element of a false imprisonment claim
under California law — that he was arrested “without lawful
privilege.” Easton, 80 Cal. App. 4th at 496. Accordingly, we
affirm the district court’s grant of summary judgment to
Wells with respect to Young’s false imprisonment claim.
IV.
[22] In conclusion, we affirm the district court’s grant of
summary judgment to Wells with respect to Young’s false
YOUNG v. COUNTY OF LOS ANGELES 16469
imprisonment claim because Wells had lawful authority to
arrest Young on account of his violation of Cal. Penal Code
§ 148(a)(1). However, we reverse with respect to Young’s
claim alleging excessive force in violation of the Fourth
Amendment. He asserts facts that amount to a textbook viola-
tion of his Fourth Amendment rights: the use of significant
force without warning against an individual who committed
only minor misdemeanors; who posed no apparent threat to
officer or public safety; and who was not seeking to flee, even
though a variety of less intrusive alternatives to the use of
such force was available. The district court thus erred in
granting summary judgment to Wells both with respect to
whether a constitutional violation had occurred, and with
respect to whether the law governing Wells’s conduct was
clearly established. Because the Fourth Amendment violation
alleged by Young also suffices to establish the breach of a
duty of care under California law, we reverse the district
court’s dismissal of Young’s state law negligence claim, as
well. See, e.g., Munoz v. City of Union City, 120 Cal. App. 4th
1077, 1108-09 (Cal. App. 2004) (applying Fourth Amend-
ment reasonableness standard to claim that officer was negli-
gent in using excessive force).
AFFIRMED, in part, REVERSED, in part, and
REMANDED.