Brooks v. City of Seattle

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MALAIKA BROOKS, 
Plaintiff-Appellee,
v.
CITY OF SEATTLE,
Defendant,
and No. 08-35526


STEVEN L. DAMAN, in his capacity D.C. No.
as an officer of the Seattle Police 2:06-cv-01681-RAJ
Department; DONALD M. JONES, in
his individual capacity as an OPINION
officer of the Seattle Police
Department; JUAN M. ORNELAS, in
his individual capacity as an
officer of the Seattle Police
Department,
Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding

Argued and Submitted
July 10, 2009—Seattle, Washington

Filed March 26, 2010

Before: Cynthia Holcomb Hall, Diarmuid F. O’Scannlain,
and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Hall;
Dissent by Judge Berzon

4913
4918 BROOKS v. CITY OF SEATTLE
COUNSEL

Karen L. Cobb and Theron A. (Ted) Buck, Stafford Frey Coo-
per, Seattle, Washington, for the defendants-appellants.

Eric Zubel, Eric Zubel, PC, Seattle, Washington, for the
plaintiff-appellee.

OPINION

HALL, Circuit Judge:

Sergeant Steven Daman, Officer Juan Ornelas, and Officer
Donald Jones (collectively “the Officers”) appeal the district
court’s denial of the Officers’ motion for summary judgment
on Malaika Brooks’s § 1983 and state law claims. Brooks had
sued the City of Seattle, the Seattle Police Department
(“SPD”) and its chief, as well as the Officers, based on the
Officers’ alleged excessive force when they tased her three
times to effect her arrest. The district court denied the Offi-
cers’ motion for summary judgment,1 finding that they were
not entitled to qualified immunity for their actions. The Offi-
cers challenge that denial. This court has jurisdiction pursuant
to 28 U.S.C. § 1291. We reverse.

I.

On November 23, 2004, SPD Officer Juan Ornelas stopped
Brooks for speeding in a school zone.2 The situation deterio-
rated rather quickly. Brooks claimed she had not been speed-
1
The district court granted summary judgment to the City of Seattle,
SPD, and the police chief on Brooks’s § 1983 or state law claims.
2
Because this appeal arises from a denial of summary judgment, we
assume that the version of material facts asserted by Brooks, the non-
moving party, is correct. See Robinson v. Prunty, 249 F.3d 862, 866 (9th
Cir. 2001).
 BROOKS v. CITY OF SEATTLE 4919
ing, took her driver’s license out of Officer Ornelas’s ticket
book and only reluctantly gave it back, and then repeatedly
refused to sign a Notice of Infraction (“Notice”) regarding her
speeding violation.3 When SPD Officer Jones arrived at the
scene, Officer Ornelas told him that Brooks had refused to
sign the Notice and was being uncooperative. Officer Jones
tried to obtain her signature himself, but Brooks also refused
his entreaties, despite assurances that signing was not tanta-
mount to admitting the violation. She accused Officer Jones
of lying to her about the import of signing,4 suggested he was
being racist, and became upset, repeating “I’m not signing,
I’m not signing” over and over. Throughout, she remained in
the car with the ignition running.
3
The Notice of Infraction gives notice that a traffic law has been vio-
lated and requires a signature indicating, without admitting to the crime,
that the recipient will respond as directed by the Notice. See Wash. Rev.
Code § 46.63.060. The Notice should be distinguished from a Citation to
Appear, which is a separate document that includes the violation allegedly
committed, but requires a signature promising to appear in court. See
Wash. Rev. Code § 46.64.015.
There is considerable dispute as to whether the Officers gave Brooks
both a Notice based upon her speeding and violation and a Citation to
Appear based upon her refusal to sign the Notice. Officer Jones maintains
that he asked Brooks about both the Notice and the Citation to Appear.
Sergeant Daman claims he was also asking about both when he asked
Brooks if she would sign “the ticket.” Confusing matters, the Notice and
the Citation to Appear are frequently referred to by all parties interchange-
ably as “tickets” or “citations” even though the penalty for refusing to sign
them is quite different. Nonetheless, Brooks maintains that she thought the
“ticket” she was being asked to sign here was still the Notice. This panel
must view the facts in the light most favorable to her and assume she did
not refuse to sign the Citation to Appear.
4
Brooks has had a previous encounter with Notices and Citations to
Appear. During a 1996 traffic incident, she refused to sign both the Notice
and the Citation to Appear because she did not think she was guilty of the
traffic offense underlying the Notice. In that case, the ticketing officer’s
supervisor instructed the officer to give Brooks both tickets and allow her
to leave, even though the law would have permitted custodial arrest.
4920 BROOKS v. CITY OF SEATTLE
Officer Ornelas then called his supervisor, SPD Sergeant
Daman. When Sergeant Daman arrived, Brooks continued to
refuse to sign the Notice. Sergeant Daman then asked her “if
[she] was going to sign the ticket.” When she refused, he told
Officers Ornelas and Jones to “[b]ook her.” They attempted
to follow those orders.

Brooks refused to leave her car, remaining in it with the
ignition running and her door shut. Officer Jones then showed
Brooks his Taser, explaining that it would hurt “extremely
bad” if applied. Brooks told them she was pregnant and that
she needed to use the restroom. The officers discussed where
to tase her, deciding on her thigh. Officer Jones demonstrated
the Taser for her. Brooks still remained in the car, so Officer
Ornelas opened the door and reached over to take the key out
of the ignition, dropping the keys on the floorboard.5

Officer Ornelas then employed a pain compliance tech-
nique, bringing Brooks’s left arm up behind her back,
whereon Brooks stiffened her body and clutched the steering
wheel in order to frustrate her removal from the car. Officer
Jones discharged the Taser against Brooks’s thigh, through
her sweat pants, which caused Brooks “tremendous pain.” She
began to yell and honk the car’s horn.

Within the next minute, Officer Jones tased her two more
times, against her shoulder and neck, the latter being the only
area of exposed skin. Brooks was unable to get out of the car
herself during this time because her arm was still behind her
back.6 The third tasing moved Brooks to the right, at which
point Officers Ornelas and Jones were able to extract her from
5
The district court mistakenly found that the keys remained with Officer
Ornelas. Brooks herself says otherwise.
6
The district court suggests the Taser stun may have made her unable
to leave, but that is not consistent with Brooks’s declaration, which links
her inability to move with her arm being held behind her back rather than
any muscle lock-up.
 BROOKS v. CITY OF SEATTLE 4921
the car through a combination of pushing and pulling. She
was immediately seen by medical professionals, and two
months later delivered a healthy baby.

Brooks was charged with (1) violation of Seattle Municipal
Code 11.59.090 for refusing to sign the Notice, and (2) resist-
ing arrest. She was convicted of the first charge, but the jury
hung on the second, which was later dismissed.

Brooks then filed this action against the Officers, asserting
a claim under 42 U.S.C. § 1983 and assault and battery claims
under state tort law for the alleged excessive force. The dis-
trict court denied the Officers’ motion for summary judgment
on those claims, finding a clearly established constitutional
violation that deprived the Officers of qualified immunity on
both the federal and state claims.

II.

We review de novo a denial of summary judgment based
on qualified immunity. See Lee v. Gregory, 363 F.3d 931, 932
(9th Cir. 2004). Our review is limited to the question of
whether, assuming all conflicts in the evidence are resolved
in Brooks’s favor, the Officers would be entitled to qualified
immunity as a matter of law. Id.

III.

Qualified immunity entitles the Officers “not to stand trial
or face the other burdens of litigation” on the § 1983 claim,
provided their conduct did not violate a clearly established
federal right. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
The qualified immunity inquiry asks two questions: (1) was
there a violation of a constitutional right, and, if so, then (2)
was the right at issue “clearly established” such that it would
have been clear to a reasonable officer that his conduct was
unlawful in that situation?7 See Saucier v. Katz, 533 U.S. 194,
7
After Pearson v. Callahan, 129 S. Ct. 808, 818 (2009), we have discre-
tion to decide which step to address first.
4922 BROOKS v. CITY OF SEATTLE
201-02 (2001), overruled on other grounds by Pearson v.
Callahan, 129 S. Ct. 808 (2009). If the Officers’ actions do
not amount to a constitutional violation, the violation was not
clearly established, or their actions reflected a reasonable mis-
take about what the law requires, they are entitled to qualified
immunity. See Blankenhorn v. City of Orange, 485 F.3d 463,
471 (9th Cir. 2007).

A. Constitutional Violation

In her complaint, Brooks alleged that the Officers violated
her constitutional rights by using excessive force during her
arrest.

1. Probable Cause

Beginning in her opposition to the Officers’ motion for
summary judgment, Brooks has argued that the Officers did
not have probable cause to arrest her for refusing to sign the
Citation to Appear because she did not so refuse. Therefore,
she contends, there was no need for force, and any force used
was constitutionally unreasonable. See Headwaters Forest
Def. v. County of Humboldt, 240 F.3d 1185, 1204 (9th Cir.
2000). As an initial matter, we note that “establishing a lack
of probable cause . . . does not establish an excessive force
claim,” Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th
Cir. 2004). Thus, the result, even if we were to find no proba-
ble cause, is not as obvious as Brooks would make it. Indeed,
an arrestee’s resistance may support the use of force regard-
less of whether probable cause existed. See Arpin v. Santa
Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir.
2001) (finding an arrestee’s actions in “stiffen[ing] her arm
and attempt[ing] to pull it away” to be resistance justifying
the officer’s use of force in handcuffing regardless of whether
there was probable cause to arrest her).

[1] Nonetheless, the existence of probable cause may be
considered as a part of the totality of circumstances affecting
 BROOKS v. CITY OF SEATTLE 4923
the excessive force analysis. See Smith v. City of Hemet, 394
F.3d 689 (9th Cir. 2005) (permitting consideration of whether
the officer’s conduct “violated applicable police standards” in
assessing the reasonableness of the force used). It also
impacts the question of state law immunity on the assault and
battery claims. See Wash. Rev. Code § 9A.16.020(1) (finding
force used by a police officer not unlawful “[w]henever nec-
essarily used . . . in the performance of a legal duty”); Staats
v. Brown, 991 P.2d 615, 627-28 (Wash. 2000) (describing
state qualified immunity on assault and battery as dependent
upon whether the force used to effect the arrest was exces-
sive). Thus, we consider whether the Officers had probable
cause to arrest Brooks.

[2] “Probable cause exists when the facts and circum-
stances within the officer’s knowledge are sufficient to cause
a reasonably prudent person to believe that a crime has been
committed.” Lassiter v. City of Bremerton, 556 F.3d 1049,
1053 (9th Cir. 2009). Though we agree with the district court
that the Officers did have probable cause to arrest Brooks, we
arrive at that conclusion by a different path.8

[3] Brooks concedes that she refused to sign the Notice,
which amounted to a violation of Seattle Municipal Code
§ 11.59.090(c). For the purposes of the Fourth Amendment,
this is sufficient to find probable cause. See Virginia v.
Moore, 128 S. Ct. 1598, 1606-07 (2008) (holding that an
arrest based on probable cause does not violate the Fourth
Amendment, even if the relevant criminal offense is non-
arrestable under state law).

However, because Virginia v. Moore does not answer the
8
The district court found probable cause based on statutory authority to
arrest for the refusal to sign a Citation to Appear, see Wash. Rev. Code
§ 46.64.015, but then referenced Brooks’s “undisputed refusal to sign the
Notice.” Recognizing Brooks’s contentions that she did not refuse to sign
the Citation to Appear, our analysis is different.
4924 BROOKS v. CITY OF SEATTLE
question of whether the Officers were following departmental
standards or are entitled to state law immunity, we march on.
Brooks’s arguments are all based on the premise that (1) she
could not be arrested for refusing to sign the Notice and (2)
although she could be arrested for refusing to sign the Cita-
tion, she never received it. However, she does not argue that
she was detained longer than was reasonably necessary under
Section 46.64.015 or that her conduct during that period of
detention could not provide grounds for lawful arrest.

[4] First, the Officers had clear authority for their initial
arrest and detention of Brooks. Brooks does not dispute that
her initial traffic violation permitted the Officers to arrest and
to detain her until they issued her a Notice. See Wash. Rev.
Code § 46.64.015 (2004) (“The arrested person, in order to
secure release, and when permitted by the arresting officer,
must give his or her written promise to appear in court as
required by the citation and notice by singing in the appropri-
ate place . . .”).9 In addition, Brooks’s refusal to sign the
Notice gave the Officers probable cause to continue to detain
her. Under Washington law, a police officer may arrest an
individual for committing a misdemeanor in his presence.
Wash. Rev. Code § 10.31.100. Failure to sign the Notice is a
misdemeanor. See Wash. Rev. Code § 46.61.022 (making
failure to comply with Wash. Rev. Code § 46.61.021(3),
which includes a requirement to sign the Notice, a misdemea-
nor). As there is no dispute that Brooks’s refusal to sign the
Notice took place in the presence of the Officers, there can be
no question that Washington law authorized her arrest.

[5] The Officers’ authority to arrest Brooks for these mis-
demeanors would ordinarily last no longer than necessary to
issue her a Citation. See Wash. Rev. Code § 46.64.015 (2004).
9
In 2006, the Washington legislature amended this statute to omit the
authorization to effect a custodial arrest for failure to sign the Citation to
Appear. See Wash. Rev. Code § 46.64.015. However, the earlier version
was applicable to the events of this case.
 BROOKS v. CITY OF SEATTLE 4925
However, her conduct during this initial detention gave the
Officers probable cause to place her under custodial arrest for
other violations of state law—a point that Brooks does not
dispute. For instance, we find that probable cause existed to
arrest Brooks for obstructing an officer. See Wash. Rev. Code
§ 9A.76.020. “A person is guilty of obstructing a law enforce-
ment officer if the person willfully hinders, delays, or
obstructs any law enforcement officer in the discharge of his
or her official powers or duties.” Id.; see Lassiter, 556 F.3d
at 1051, 1053 (listing the crime’s elements as “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; [and] 4) the action or inaction is done knowingly”). That
violation is a gross misdemeanor for which custodial arrest is
appropriate. See Wash. Rev. Code §§ 9A.76.020(3),
10.31.100. While trying to obtain Brooks’s signature on the
Notice, the officers were acting in the discharge of their offi-
cial duties. See Wash. Rev. Code §§ 46.61.021,
46.63.060(2)(j) (official duties when completing and issuing
Notice, which requires signature); State v. Richards, 36 P.3d
1119, (Wash. 2001) (official duties when seeking signature on
Citation to Appear).

[6] Based on Brooks’s undisputed uncooperative behavior,
a reasonably prudent person would have believed Brooks was
violating section 9A.76.020 by obstructing the Officers’
attempts to obtain her signature and complete the traffic stop.
Wash. Rev. Code § 9A.76.020(1); see Lassiter, 556 F.3d at
1053 (finding probable cause to arrest an individual for
obstructing a police officer when that individual declined to
follow instructions and grabbed the officer’s arm when the
officer placed a hand on him). The record reflects that
Brooks’s detention was lengthened and the situation escalated
by her own resistance. The Officers were attempting—and
Brooks knew they were attempting—to complete and issue
the Notice by securing her signature on it as required by sec-
tions 46.61.021 and 46.63.060(2)(j). Her behavior interfered
4926 BROOKS v. CITY OF SEATTLE
with their lawful attempts to carry out that duty. Therefore,
the Officers had probable cause to arrest Brooks.

Additionally, Washington state courts have recognized that
although officers generally should issue citations for minor
traffic violations instead of making custodial arrests, there
might be “reasonable grounds” for making an arrest, such as
when “there was reasonable grounds to believe that the
accused will refuse to respond to a citation.” State v. Hehman,
578 P.2d 527, 528-29 (Wash. 1978); see State v. Covington,
144 Wash. App. 1012 (Wash. Ct. App. 2008) (finding it rea-
sonable to believe that person without identification, claiming
not to own the vehicle he was driving, would disregard a
promise to appear on the citation if one were given); State v.
Jordan, 747 P.2d 1096, 1098 (Wash. Ct. App. 1987) (same);
State v. McIntosh, 712 P.2d 319 (Wash. Ct. App. 1986) (same
and defendant also gave suspicious account of his activity on
evening of arrest).

[7] Even if Brooks never in fact received the Citation, her
conduct while in detention for the speeding violation and fail-
ure to sign the Notice made it reasonable to believe that she
also would not sign a Citation were one issued. Brooks has
admitted being uncooperative during her detention: she tried
to take her driver’s license away from Officer Ornelas; repeat-
edly refused his requests to sign the Notice; repeatedly
refused Officer Jones’s requests to do the same, even when
told it was her legal duty to sign; accused Officer Jones of
lying to her about the law and of racism; and became upset,
all while sitting in her car with the ignition running. Officer
Ornelas called for backup because of her behavior. When Ser-
geant Daman arrived at the scene, he asked her again to sign,
and she refused. Under these particular circumstances, it
would be reasonable to believe that serving Brooks the Cita-
tion would be futile. Therefore, even if Brooks’s account of
the incident were true, the futility of issuing the Citation
would provide the Officers probable cause to arrest her for
failure to sign the Notice.
 BROOKS v. CITY OF SEATTLE 4927
2. Excessive Force

[8] An excessive force claim is analyzed under the Fourth
Amendment’s “objective reasonableness” standard. Graham
v. Connor, 490 U.S. 386, 388 (1989). This inquiry “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 omitted). Because reasonableness
“is not capable of precise definition or mechanical applica-
tion,” the inquiry requires “attention to the facts and circum-
stances of each particular case, including [1] the severity of
the crime at issue, [2] whether the suspect poses an immediate
threat to the safety of the officers or others, and [3] whether
he is actively resisting arrest or attempting to evade arrest by
flight.” Id. These factors should be considered in relation to
the amount of force used. See Smith, 394 F.3d at 701. Reason-
ableness is judged from the perspective of a reasonable officer
on the scene, making allowances for the split-second judg-
ments officers are required to make in “tense, uncertain, and
rapidly-evolving” situations. Graham, 490 U.S. at 396-97.

The right to employ “some degree of physical coercion or
threat thereof” to effect an arrest accompanies the right to
make the arrest or investigatory stop, id. at 396, but the force
must be necessary to be reasonable, Blankenhorn, 485 F.3d at
480. Where police have control over a suspect, the use of fur-
ther force to bring the suspect under control may be unreason-
able. See Headwaters Forest Def., 276 F.3d at 1125 (use of
pepper spray on protesters already under police control held
excessive). Officers are not required to use the least intrusive
means available; they simply must act within the range of rea-
sonable conduct. See Scott v. Heinrich, 39 F.3d 912, 915 (9th
Cir. 1994). Determination of that reasonable range requires
consideration of the totality of the circumstances, Forrester v.
City of San Diego, 25 F.3d 804, 806 n.2 (9th Cir. 1994),
including whether a warning was given, Deorle v. Rutherford,
272 F.3d 1272, 1283-84 (9th Cir. 2001), and the availability
4928 BROOKS v. CITY OF SEATTLE
of alternative methods of capturing and subduing a suspect,
Smith, 394 F.3d at 701-02. The fact that a suspect does not
threaten the officer does not shield him from the use of force.
See Forrester, 25 F.3d at 807-09 (finding no Fourth Amend-
ment violation when officers used injury-causing pain compli-
ance techniques on passively resisting demonstrators).

The Officers argue that the use of a Taser to gain Brooks’s
compliance—after previous unsuccessful, lawful attempts to
gain her cooperation and warnings the Taser would be used—
was not objectively unreasonable. The Officers note that a
Taser’s use in “drive-stun” mode inflicts only transitory,
localized pain. Applying the Graham factors, the Officers first
claim that the alleged crime was the more serious crime of
resisting arrest, not the failure to sign the Notice. Second, they
contend that, although Brooks initially posed only a minimal
risk, that risk escalated when she became confrontational and
refused to leave her running car. Third, and finally, they point
out that Brooks was actively resisting arrest by using force to
immobilize herself and remain in the car.

a. The Amount of Force

We first assess the quantum of force used by the Officers.
See Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir.
2007). The Officers claim there has been a significant misun-
derstanding of the force involved in the manner in which the
Taser was used here. We are inclined to agree.

[9] The Taser’s use in “touch” or “drive-stun” mode—as
the Officers used it here—involves touching the Taser to the
body and causes temporary, localized pain only. According to
the SPD’s Use of Force Training Guideline,10 this usage was
10
SPD’s policies, found constitutional by the district court, state that
officers must only use “the minimal amount of force necessary to over-
come physical aggression or resistance to compliance with a lawful pro-
cess.” The Use of Force Training Guideline provides context for that
general statement, presenting a continuum describing the suspect’s level
of resistance and the corresponding reasonable force which may be used
to react to that resistance.
 BROOKS v. CITY OF SEATTLE 4929
considered a Level 1 tactic, akin to “pain compliance applied
through the use of distraction, counter-joint holds, hair control
holds, [and pepper spray]” and used to control passively or
actively resisting suspects. By contrast, applying a Taser in
dart mode (wherein darts are shot at the suspect from some
distance) achieves greater distance between the contact nodes
which can cause neuro-muscular incapacitation. In dart mode,
the Taser’s use is a Level 2 tactic to be employed only against
aggressive resistance. The district court did not differentiate
between the possible modes of use, noting only that the Taser
was discharged on Brooks’s thigh, shoulder, and neck, caus-
ing “a level of force (whether once or three times) that hurt
‘extremely bad,’ ” and constituted a “quantum leap” from the
previous force employed. These comments suggest the district
court thought the force used was severe. We find this to be an
overestimation that led the court to err in finding excessive
force.

In two recent decisions, we addressed excessive force
claims involving the use of Tasers. See Mattos v. Agarano,
590 F.3d 1082 (9th Cir. 2010) (per curiam) (holding that the
use of a Taser stun on a suspected domestic violence victim
while attempting to arrest her husband did not amount to
excessive force); Bryan v. McPherson, 590 F.3d 767 (9th Cir.
2009) (holding that shooting a Taser gun at a disoriented,
half-naked man while stopping him for a seatbelt violation
constituted excessive force).

The Mattos court did not engage in an in-depth analysis of
the quantum of force involved in the use of a Taser. See 590
F.3d at 1087 (“[I]t is difficult for us to opine with confidence
regarding either the quantum of force involved in a deploy-
ment of a Taser gun or the type of force inflicted.”). In Mat-
tos, a police officer applied a Taser directly to plaintiff’s back,
causing her to feel “an incredible burning and painful feeling
locking all of [her] joints.” Id. at 1085 (internal quotation
marks omitted; alteration in original). The panel, however,
cited conflicting testimony regarding the amount of force used
4930 BROOKS v. CITY OF SEATTLE
and the severity of plaintiff’s injuries. Id. at 1087. It observed
that “the Taser, in general, is more than a non-serious or triv-
ial use of force but less than deadly force,” and noted that
“[u]nfortunately, there is a lot of room between these end
points.” Id. The panel noted that “the record on this point is
not as developed as we could hope for,” but concluded that
“the Taser stun was a serious intrusion into the core of the
interests protected by the Fourth Amendment.”11 Id. The Mat-
tos panel did not differentiate drive-stun and dart modes, nor
did it differentiate the quantum of force used on Mattos from
the quantum of force used in Bryan.

The Bryan panel undertook a more detailed analysis of the
quantum of force. The panel concluded that the use of a
Taser, in a manner equivalent to dart mode, “constitute[s] an
intermediate, significant level of force that must be justified
by a strong government interest that compels the employment
of such force.” Bryan, 590 F.3d at 774 (internal quotation
marks omitted).12 In Bryan, a police officer discharged his
X26 Taser from a distance of approximately 20-25 feet,
embedding a barbed electrical probe into Bryan’s arm. Id. at
771. The X26’s powerful electrical pulse delivered an excru-
ciating pain throughout Bryan’s body and caused Bryan to
lose all muscular control, fall face first onto the pavement,
shatter four front teeth, and suffer facial abrasions and swell-
11
Although the Mattos panel appears to accept that the Taser was
deployed in drive-stun mode, see 590 F.3d at 1087 (“[D]efendant’s expert
conceded that a Taser in the drive stun mode induces subject control
through pain compliance . . .” (internal quotation marks omitted)), Mat-
tos’s description of a generalized loss of muscle control is more indicative
of a Taser in dart mode. She also claims to have “removed the Taser’s
prongs herself,” id., another characteristic of dart mode.
12
The holding in Bryan applied to the X26 Taser model and “all con-
trolled electric devices that cause similar physiological effects.” See
Bryan, 590 F.3d at 772 n.2. Although this would clearly implicate the use
of a Taser in dart mode—which has similar physiological effects as the
X26—the localized, non-incapacitating effect of the drive-stun mode has
markedly different physiological effects.
 BROOKS v. CITY OF SEATTLE 4931
ing. Id. He also needed to have the electrical barb surgically
removed from his flesh. Id. at 773. Because the pain inflicted
by the X26 Taser was “intense, [was] felt throughout the
body, and [was] administered by effectively commandeering
the victim’s muscles and nerves,” we held the X26 Taser to
be “an intermediate or medium, though not insignificant,
quantum of force.” Id. at 774-75.13

[10] The force at issue here is markedly different than the
force in Bryan, and, unlike in Mattos, we have the benefit of
a fully-developed record on the use of a Taser in drive-stun
mode. The use of the Taser in drive-stun mode is painful, cer-
tainly, but also temporary and localized, without incapacitat-
ing muscle contractions or significant lasting injury. Brooks
said she sustained burn marks and now has scars on her upper
arm and thigh, which is certainly not insignificant, but these
injuries are far less serious than those inflicted on Bryan by
the X26 Taser—excruciating pain throughout his entire body,
temporary paralysis, facial abrasions, shattered teeth, and a
sharp barb lodged into his flesh. Thus, the use of the Taser in
drive-stun mode—as opposed to dart mode—seems unlike the
force used in Bryan or uses of force which this court has pre-
viously considered severe. See, e.g., Davis, 478 F.3d at 1055
(holding that the force used was “extremely severe” when
officer slammed suspect head-first into the wall, breaking his
neck, then pressed to the ground by the officer’s knee and
punched); Smith, 394 F.3d at 701-02 (severe when officers
pepper sprayed suspect four times and sicced a police dog on
him three times while he was pinned down, then failed to
rinse the spray from his eyes and bite wounds). Indeed, the
13
Other circuit and district court decisions have also found the Taser
dart application to be an intermediate amount of force. See, e.g., Draper
v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004); Sanders v. City of
Fresno, 551 F. Supp. 2d 1149, 1168 (E.D. Cal. 2008) (citing cases). But
see Parker v. Gerrish, 547 F.3d 1, 10 (1st Cir. 2008) (finding a jury could
have found a Taser dart application unreasonable in light of testimony
about its “strong incapacitating effect” and the fact that the police depart-
ment considered it just below deadly force on the force continuum).
4932 BROOKS v. CITY OF SEATTLE
amount of force here was more on par with pain compliance
techniques,14 which this court has found involve a “less signif-
icant” intrusion upon an individual’s personal security than
most claims of force, even when they cause pain and injury.
Forrester, 25 F.3d at 807 (considering pain compliance tech-
niques that caused bruises, pinched nerves, and a broken
wrist). Although certainly a “serious intrusion,” Mattos, 590
F.3d at 1087, when compared to the far more serious intrusion
in Bryan, we find the quantum of force here to be less than
the intermediate.15

b. The Graham Factors

i. Severity of the Crime

[11] Brooks was detained for refusing to sign her name on
the Notice. The Officers were attempting to take her into cus-
tody for refusing to sign the Citation to Appear (albeit errone-
ously, under the facts as Brooks states them). Neither of these
crimes were serious. As discussed above, see supra Part
III.A.1, Brooks’s behavior also gave the Officers probable
cause to arrest her under Washington Revised Code
§ 9A.76.020(1) for obstructing a police officer in the exercise
of his official duties. This court has held that in certain cir-
14
The use of a Taser in drive-stun mode is considered a pain compliance
technique both by the SPD’s Use of Force Training Guideline and our
jurisprudence. See San Jose Charter of Hells Angels Motorcycle Club v.
City of San Jose, 402 F.3d 962, 969 n.8 (9th Cir. 2005).
15
Three recent, out-of-circuit cases involved the use of a Taser in drive-
stun mode, but none specifically address the quantum of force represented
by that usage. See Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir.
2009); Orem v. Rephann, 523 F.3d 442 (4th Cir. 2008); Davenport v. Cau-
sey, 521 F.3d 544 (6th Cir. 2008). We do not hold that the use of a Taser
in drive-stun mode can never amount to excessive force, but solely that
such use was not excessive based upon Brooks’s conduct. Cf. Brown, 574
F.3d at 498 (concluding that a material issue of fact existed as to excessive
force where officer applied Taser to frightened motor vehicle passenger
speaking to a 911 operator on her cell phone).
 BROOKS v. CITY OF SEATTLE 4933
cumstances, obstruction of an officer can justify the use of a
Taser. See Mattos, 590 F.3d at 1087-88 (concluding that
plaintiff’s obstruction of her husband’s arrest made it more
likely that her husband would assault the officers). Although
obstructing an officer is a more serious offense than the traffic
violations,16 it is nonetheless not a serious crime. See id.;
Davis, 478 F.3d at 1055. This factor weighs in favor of find-
ing the force excessive.

ii. Threat Posed to Officers or Bystanders

[12] The threat posed is the most significant Graham fac-
tor. See Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994).
The district court found that Brooks posed no danger to the
public or officers because she never used or threatened force
against the Officers (using it only to immobilize herself) and
could not have hurt anyone with her car. The last point stems
from the court’s misunderstanding of the record; even Brooks
admits that the keys remained on the floorboard of her car and
were not in the Officers’ possession. Whether the keys were
on the floorboard or in the Officers’ possession, it seems clear
that Brooks was not going to be able to harm anyone with her
car at a moment’s notice. Nonetheless, some threat she might
retrieve the keys and drive off erratically remained, particu-
larly given her refusal to leave the car and her state of agita-
tion.

[13] It would also be incorrect to say Brooks posed no
threat to officers. While she might have been less of a threat
because her force so far had been directed solely at immobi-
lizing herself, a suspect who repeatedly refuses to comply
with instructions or leave her car escalates the risk involved
for officers unable to predict what type of noncompliance
16
Obstruction of an officer is a gross misdemeanor, Wash. Rev. Code
§ 9A.76.020, while refusing to sign either the Notice or Citation to Appear
is a misdemeanor, Wash. Rev. Code §§ 46.61.021(1) (2004); id.
§ 46.61.022 (2009).
4934 BROOKS v. CITY OF SEATTLE
might come next. A contemporaneous statement by Officer
Jones confirms this fear. That Brooks remained in her car,
resisting even the pain compliance hold the Officers first
attempted, also reveals that she was not under their control.
Finally, the Washington legislature’s action in making
obstructing an officer a gross misdemeanor for which custo-
dial arrest is appropriate suggests that Brooks posed the sort
of threat that it was appropriate to remove from the streets.
See Wash. Rev. Code §§ 9A.76.020(3), 10.31.100. Therefore,
Brooks may not have posed a great threat, she did pose some
threat by virtue of her continued non-compliance, which
weighs against finding the less-than-intermediate force exces-
sive.

iii. Resistance to Arrest and Risk of Flight

[14] Though the risk of flight, as described above, was
present but small, there is little question that Brooks resisted
arrest: the district court noted she “does not deny that she
used force to resist the [O]fficers’ efforts,” she grasped the
steering wheel and wedged herself between the seat and steer-
ing wheel, and she refused to get out of the car when asked.
Brooks’s conduct was defined by the SPD Use of Force
Training Guideline as “actively resistant” because she
employed force to defeat the Officers’ attempts to control her.
Our precedent also classifies Brooks’s conduct as active resis-
tance. See Chew, 27 F.3d at 1442 (hiding and fleeing is resist-
ing arrest and offering physical resistance to an officer’s
efforts constitutes a greater level of active resistance). While
Brooks’s resistance may not have been violent or aggressive,
those aspects are more relevant to the second Graham factor,
leaving the fact of her resistance here to weigh against finding
the force used excessive.

c. Totality of the Circumstances

In addition to the Graham factors described above, a con-
sideration of the totality of the circumstances may look to
 BROOKS v. CITY OF SEATTLE 4935
other factors as well. See Forrester, 25 F.3d at 806 n.2. The
district court posited that the Officers could have controlled
Brooks with “less violence.” The availability of alternative
methods is a proper factor to consider, Smith, 394 F.3d at 701,
but it is unclear just how much it should be considered, given
that “the appropriate inquiry is whether the officers acted rea-
sonably, not whether they had less intrusive alternatives avail-
able to them,” Scott, 39 F.3d at 915. Some cases speculate as
to available alternatives, see Davis, 478 F.3d at 1056, while
others look to expert testimony and departmental determina-
tions as to whether less intrusive methods were available, see
id.; Smith, 394 F.3d at 703, and still others eschew hypotheti-
cal arguments about whether officers could have used meth-
ods less painful or injurious as being part of an impermissible
after-the-fact analysis, see Forrester, 25 F.3d at 807-08 & n.4;
cf. Billington v. Smith, 292 F.3d 1177, 1188-89 (9th Cir.
2002) (recognizing that expert evidence about less intrusive
alternatives does not determine reasonableness).

[15] We agree with the Forrester panel here: the district
court’s general and vague statement that there were “numer-
ous other means of removing” Brooks reflects after-the-fact
speculation and fails to address what else these officers could
have done in the situation that confronted them at that
moment, when they needed to get the resistant Brooks out of
the car to arrest her. Furthermore, this case is unlike Smith
and Davis, where there was evidence suggesting it would
have been reasonable to use less force. Here, there has been
no departmental determination that the Officers could have
used alternative methods. Indeed, the Officers followed the
SPD’s Use of Force Training Guideline, applying pain com-
pliance techniques (of which drive-stun Taser use was one) to
control an actively resisting suspect.17 It is true that two other
17
The district court concluded the Officers did not follow SPD policy.
The court did not elaborate, but may have been referring to a violation of
the general statement that officers “shall only use the minimal amount of
force necessary to overcome . . . resistance to compliance.” Nonetheless,
4936 BROOKS v. CITY OF SEATTLE
pain compliance methods would have also been appropriate
under the policy in light of Brooks’s conduct—hair control
holds and pepper spray—but there is no indication those
would have been less intrusive or worked better, particularly
given that Brooks had already resisted one pain compliance
hold and, as a large woman, had proved difficult to dislodge.
Also the pepper spray’s effects would have lasted longer. See
LaLonde v. County of Riverside, 204 F.3d 947, 960-61 (9th
Cir. 2000) (describing pepper spray effects as lasting up to
forty-five minutes). We thus find the “availability of alterna-
tives” factor does not weigh in favor of finding the Officers’
actions unreasonable.

[16] Other factors we have considered also weigh against
finding a constitutional violation. The Officers gave multiple
warnings that a Taser would be used and explained its effects.
See Deorle, 272 F.3d at 1284 (finding that warnings should be
given, when feasible, before force more serious than that
employed here is used); see also Bryan, 590 F.3d at 780 (con-
sidering the failure to give a warning as a factor militating
against the reasonableness of X26 Taser usage). While the
court may consider what the officers knew about a suspect’s
health, see Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir.
1994), the record indicates that, when the Officers discovered
Brooks’s pregnancy, they took steps to employ a localized
type of force away from her stomach. Brooks’s arrest was
supported by probable cause under Washington law and the
Officers’ use of force was in accordance with the SPD’s Use
of Force Training Guideline. See Smith, 394 F.3d at 703 (con-
sidering whether the officer’s conduct “violated applicable
police standards” in assessing the reasonableness of the force

that statement should be read in context with the Use of Force Training
Guideline, which spells out what force would be appropriate in response
to certain levels of non-compliance. The Officers’ Taser use was consis-
tent with that Guideline. The district court found the SPD’s use-of-force
policy constitutional.
 BROOKS v. CITY OF SEATTLE 4937
used). These factors thus mitigate against a finding of exces-
sive force.

[17] The Taser was used three times in this case, which
constitutes a greater application of force than a single tasing.
Nonetheless, in light of the totality of the circumstances, this
does not push the use of force into the realm of excessive.
After the first use, Brooks did not communicate that she was
willing to comply with the Officers’ commands, but instead
started yelling and honking her horn, which would likely have
been perceived by the Officers as an escalation of her resis-
tance. The same behavior followed the second tasing. The
third tasing moved Brooks to the right, at which point Offi-
cers Ornelas and Jones were able to extract her from the car.
Therefore, while using the Taser three times makes this a
closer case, we find that it does not show excessive force in
light of the corresponding escalation of Brooks’s resistance
and the fact that it was the third tasing that appeared to dis-
lodge her such that the Officers could finally extract her from
her car and gain control over her.

[18] In conclusion, then, this case presents a less-than-
intermediate use of force, prefaced by warnings and other
attempts to obtain compliance, against a suspect accused of a
minor crime, but actively resisting arrest, out of police con-
trol, and posing some slight threat to officers. In this situation,
we find, assuming all the facts in Brooks’s favor, that the
Officers’ behavior did not amount to a constitutional viola-
tion. See Arpin, 261 F.3d at 921-22 (finding no excessive
force when physical force was used to handcuff suspect who
had refused to cooperate with an officer’s requests for identi-
fication and stiffened her arm and attempted to pull free from
the officer); Forrester, 25 F.3d at 807-08 (9th Cir. 1994)
(finding no excessive force when injury-causing pain compli-
ance holds were used against passively resisting demonstra-
tors); see also Draper, 369 F.3d at 1278 (finding no excessive
force when officer used Taser gun to effect the arrest of an
4938 BROOKS v. CITY OF SEATTLE
uncooperative suspect for a traffic violation). Therefore, the
Officers are entitled to qualified immunity.18

IV.

[19] Because the district court found that the Officers’ con-
duct amounted to excessive force, it declined to find qualified
immunity for the Officers on Brooks’s state law claims. See
Staats, 991 P.2d at 627-28 (holding that immunity is not
available for assault and battery claims “arising out of the use
of excessive force to effectuate an arrest”). However, because
we find the Officers’ use of force reasonable and not exces-
sive under the Fourth Amendment, we reach the issue. Under
Washington law, force used by a police officer is not unlawful
“[w]henever necessarily used . . . in the performance of a
legal duty.” Wash. Rev. Code § 9A.16.020(1). Where the use
of force is reasonable, an officer is entitled to state law quali-
fied immunity for assault and battery claims. See McKinney
v. City of Tukwila, 13 P.3d 631, 641 (Wash. App. 2000). As
discussed above, the Officers had probable cause under
Washington law to arrest Brooks for obstructing an officer in
18
In light of our holding, we need not reach the second step of Saucier’s
qualified immunity inquiry. However, were we to conclude that the force
used was excessive, Brooks has not shown that the use of a Taser in drive-
stun mode in overcoming her resistance to arrest violated a clearly estab-
lished constitutional right. The shortage of cases regarding this sort of
Taser usage, the Officers’ adherence to the SPD’s Use of Force Training
Guidelines, and the likely factual misunderstanding between the parties as
to what document Brooks had refused to sign all suggest that a reasonable
officer would not have known he was violating the law. See Mattos, 590
F.3d at 1089-90 (noting the lack of relevant case law involving Tasers at
the time of the incident, and concluding that “the officers’ conduct was not
so patently violative” of plaintiff’s constitutional rights that a reasonable
officer would know the action was unconstitutional) (citations omitted);
see also Saucier, 533 U.S. at 205-06 (holding that officers should not be
held to have violated the Constitution if they had a reasonable, but mis-
taken, belief as to whether the force used was legal in those circum-
stances), overruled on other grounds by Pearson v. Callahan, 129 S. Ct.
808 (2009).
 BROOKS v. CITY OF SEATTLE 4939
the exercise of his official duties, did so at the behest of the
superior officer on the scene, and acted reasonably and in
accordance with the SPD’s Use of Force Training Guideline.
Thus, the Officers are entitled to immunity for these state law
claims.

V.

For the reasons discussed above, we REVERSE the district
court and REMAND for proceedings consistent with this
opinion.

BERZON, Circuit Judge, dissenting:

I dissent.

Here is what happened to Malaika Brooks, a pregnant
mother, as she was driving her son to school one day: Two,
soon three, police officers surrounded her. The officers
thought she was speeding in a school zone; she says she was
not. Brooks provided her identification when asked, so there
was no doubt who she was or where to find her. The officers
wrote her a ticket but she refused to sign it. Refusing to sign
a speeding ticket was at the time a nonarrestable misdemea-
nor; now, in Washington, it is not even that.1 Brooks had no
weapons and had not harmed or threatened to harm a soul.
Although she had told the officers she was seven months
pregnant, they proceeded to use a Taser on her, not once but
three times, causing her to scream with pain and leaving burn
marks and permanent scars.

I fail utterly to comprehend how my colleagues are able to
1
In 2006, the Washington legislature amended the relevant statutes to
remove the requirement that the recipient of a notice of infraction sign the
notice. See 2006 Wash. Legis. Serv. Ch. 270 (H.B. 1650).
4940 BROOKS v. CITY OF SEATTLE
conclude that it was objectively reasonable to use any force
against Brooks, let alone three activations of a Taser, in
response to such a trivial offense. Obviously, the sensible
reaction to her refusal to acknowledge the ticket in writing
would have been to so note on the ticket and send her on her
way. Instead, a traffic offense — assuming it occurred —
turned into an encounter that inflicted physical and, in all like-
lihood, emotional pain on a citizen who was not in any way
dangerous to anyone. As “the situation here was far from that
of a lone police officer suddenly confronted by a dangerous
armed felon threatening immediate violence,” Deorle v. Ruth-
erford, 272 F.3d 1272, 1283 (9th Cir. 2001), we should be
holding the force used constitutionally excessive. But the
majority does the opposite: it sanctions the use of painful
force causing permanent scars against a citizen who threat-
ened no harm. I have no choice but respectfully to dissent.

I. Background

As the majority’s fact recital glosses over some critical
facts, I begin by supplementing it briefly.

Malaika Brooks was driving her eleven-year-old son to
school at the African American Academy when she was
stopped for speeding in a school zone.2 She gave the officer
her license and told her son to get out of the car and go to
school. The officer, Officer Ornelas, prepared a notice of
infraction and asked Brooks to sign it. Convinced it was not
she but the driver in front of her who had been speeding,
Brooks told Officer Ornelas she would not sign the ticket
because she did not want to admit fault. She also grabbed her
driver’s license from Officer Ornelas but gave it back after he
told her he still needed it.
2
The ticket reports that she was driving 32 miles per hour, while the
posted speed limit was 20 miles per hour.
 BROOKS v. CITY OF SEATTLE 4941
The other officer on the scene, Officer Jones, then also
asked Brooks to sign the ticket. She told him she would
accept the ticket but would not sign it, because she had not
been speeding. They began to argue: Officer Jones told
Brooks that signing the ticket was not an admission of guilt
and asked whether she could read. Brooks told Officer Jones
that she believed, based on past experience, that he was lying
about what it meant to sign the ticket, and that he was racist
for suggesting she could not read.3

The Officers allege that they also issued Brooks a criminal
citation and notice to appear because she would not sign the
notice of infraction and that she refused to sign that as well.
Brooks maintains she was only asked to sign the notice of
infraction. For purposes of this appeal, we are required to
view the facts in the light most favorable to Brooks, the non-
moving party, and so, as the majority recognizes, must
assume she was never asked to sign a criminal citation.

Officer Jones told Brooks she would have to go to jail if
she did not sign the ticket. He called his sergeant, Sergeant
Daman, who soon arrived on the scene.4 Sergeant Daman
asked Brooks whether she would sign the ticket. When she
would not, he instructed Officers Ornelas and Jones to “book
her.” In response, Officer Ornelas told Brooks to get out of
the car. She refused. Officer Jones then produced his Taser.
He yelled at Brooks, asking her if she knew what the Taser
was, how many volts it had, and what it could do to her. She
told him she did not. She also told him that she was seven
months pregnant and needed to use the restroom.
3
Several years earlier, Brooks had been cited for disregarding a stop
sign displayed by a school bus. Believing she was not guilty, Brooks
refused to sign the notice of infraction. She was then issued a criminal
citation for refusing to sign the notice; she also refused to sign the criminal
citation. The arresting officer called her supervisor, who instructed the
officer simply to give Brooks both tickets and allow her to leave.
4
I refer to all three officers collectively as “the Officers.”
4942 BROOKS v. CITY OF SEATTLE
Officers Ornelas and Jones began discussing where on
Brooks’s body they should use the Taser. Up to this point,
Brooks’s car was still running, but now Officer Ornelas
reached inside, turned off the ignition, and dropped the keys
on the floorboard. Brooks continued to refuse to get out of the
car: she gripped the steering wheel, braced her legs against
the floor, and yelled for help. Officer Ornelas pulled Brooks’s
left arm up behind her back and held it there while Officer
Jones activated his Taser against her body three times: once
on her thigh, once on her left arm, and once on her bare neck.
While the voltage was inflicted Brooks was unable to get out
of the car, as Officer Ornelas was still holding her arm behind
her back. She experienced “tremendous pain,” screamed for
help, and, instinctively, honked her horn.

After using the Taser for the third time, the Officers
dragged Brooks from her car and laid her on her stomach in
the street. She continued yelling for help and told the Officers
they were hurting her stomach. They held her down until they
had handcuffed her; then they walked her to the patrol car and
drove her to the police station.

The Taser left burn marks on Brooks’s thigh, arm, and
neck. She has scars on her thigh and upper arm. Her doctor
has told her that the scar on her arm is likely permanent.

II. Probable Cause

At the outset, I disagree with the majority’s conclusion that
the Officers had probable cause to place Brooks under custo-
dial arrest. Whether Brooks’s arrest was lawful has implica-
tions for both the federal Fourth Amendment excessive force
inquiry and the question whether the Officers are entitled to
qualified immunity from Brooks’s state law claims.

First, the majority’s assertion that the Officers had “clear
authority for their initial arrest and detention of Brooks” is
incorrect. Maj. op. at 4924 (emphasis added). The Officers
 BROOKS v. CITY OF SEATTLE 4943
initially stopped Brooks for speeding in a school zone; that
offense is a civil infraction. See Seattle Mun. Code
§ 11.52.100; Wash. Rev. Code §§ 46.61.440, 46.63.020. All
the Officers had authority to do at that point was to “detain”
Brooks “for a reasonable period of time necessary to identify
[her], check for outstanding warrants, check the status of [her]
license, insurance identification card, and the vehicle’s regis-
tration, and complete and issue a notice of traffic infraction.”
Wash. Rev. Code § 46.61.021 (2004); see also id. § 46.63.060
(2004).

The majority’s citation to Wash. Rev. Code § 46.64.015 in
its discussion of Brooks’s initial detention is thus misplaced.
That section refers not to a “notice of traffic infraction” but
to a “traffic citation and notice to appear in court,” which a
police officer may serve on a person who has committed a
traffic violation “punishable as a misdemeanor or by imposi-
tion of a fine.” Id.

In other words, the Officers did not have authority to arrest
Brooks and serve her with a citation and notice to appear until
she refused to sign the notice of infraction. Only then had she
committed a misdemeanor. See Wash. Rev. Code
§§ 46.61.022, 46.61.021 (2004). And even then, as the major-
ity properly acknowledges, the Officers had no authority to
take Brooks into custodial arrest. Rather, they were entitled to
detain her only as long as “reasonably necessary to issue and
serve a citation and notice,” Wash. Rev. Code § 46.64.015
(2004) — which, according to Brooks, they never did.

Because the record, viewed in the light most favorable to
Brooks, is bereft of facts to support a finding that the Officers
had probable cause to place Brooks under custodial arrest, the
majority, casting about for a theory, creates one from thin air:
The majority maintains that there was probable cause to arrest
Brooks for obstructing an officer. Brooks was never charged
with obstructing an officer,5 nor have the Officers ever sug-
5
Brooks was charged with, but not convicted of, resisting arrest. The
Officers did not have probable cause to arrest Brooks for that offense
4944 BROOKS v. CITY OF SEATTLE
gested that they had probable cause to arrest Brooks on that
ground. Because the Officers never raised this theory in their
briefs, Brooks has had no opportunity to dispute it. I would
consider the question waived and not address it. See Outdoor
Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900
(9th Cir. 2007); United States v. Williamson, 439 F.3d 1125,
1138 (9th Cir. 2006).

In any event, the majority fails satisfactorily to explain how
Brooks “obstructed” the Officers in the discharge of their
powers or duties by refusing to sign the notice of infraction.
See Wash. Rev. Code § 9A.76.020 (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”). When they stopped Brooks for speeding in a school
zone, the Officers were entitled “to identify [her], check for
outstanding warrants, check the status of [her] license, insur-
ance identification card, and the vehicle’s registration, and
complete and issue a notice of traffic infraction.” Wash. Rev.
Code § 46.61.021 (2004). Brooks’s refusal to sign the notice
of infraction — though a misdemeanor — did not prevent the
Officers from accomplishing any of those tasks. The Officers
were fully able to “complete and issue a notice of traffic
infraction” without obtaining Brooks’s signature. In fact, they
did so, writing “File Direct” in the space provided for
Brooks’s signature. A refusal to provide a name or current
address might have frustrated the Officers’ attempt to issue a
notice of infraction; the refusal to sign did not. The majority’s
attempt to elevate the misdemeanor of refusing to sign the
notice to the gross misdemeanor of obstructing an officer is
simply beyond the pale.

either: under Washington law, the crime of resisting arrest requires that the
underlying arrest be lawful. See Wash. Rev. Code § 9A.76.040. If the
Officers had no authority to take Brooks into custodial arrest to begin
with, then they had no probable cause to arrest her for resisting arrest.
 BROOKS v. CITY OF SEATTLE 4945
Nor does the majority point to any authority supporting its
off-the-wall theory. The one case on the Washington
obstructing-an-officer offense the majority cites is certainly
no help. In Lassiter v. City of Bremerton, 556 F.3d 1049 (9th
Cir. 2009), the police responded to a 911 call from a neighbor
of Kenneth and Alpha Lassiter. The neighbor reported hearing
Kenneth threaten to cut Alpha’s throat, and other threats were
audible on the 911 recording. When the officers arrived at the
Lassiters’ home, Alpha reluctantly answered the door, then
lied and said no one else was home. The officers encountered
Kenneth standing between the living room and kitchen, and
they insisted he sit down so that they could investigate a pos-
sible assault. Kenneth repeatedly refused, and when an officer
put his hand on Kenneth, “ostensibly to guide him to a chair,”
Kenneth reacted by grabbing the officer’s arm. Id. at 1051.
We held that the police had probable cause to arrest Kenneth
for obstructing an officer because “[his] conduct made it
impossible for the police to carry out their duty. More than
just a momentary noncompliance with police orders, his con-
duct had the practical effect of precluding the officers from
securing the scene and investigating a possible assault.” Id. at
1053.

Brooks’s behavior was in no way similar to Kenneth Las-
siter’s. Kenneth Lassiter repeatedly failed to obey the officers
and physically interfered with the officers’ attempt to require
him to do so, “ma[king] it impossible” for them to carry out
their duty. Id. Brooks initially cooperated with the Officers:
she pulled over promptly and produced her driver’s license
when asked to do so. As a result, the Officers were able to
carry out their duty of identifying her and issuing a notice of
traffic infraction. Then she refused to sign the notice. That’s
it. There was noncompliance with a police request, but where
is the “obstruction”?

Far more similar to Brooks’s behavior, although considera-
bly more colorable as an obstruction offense, is the behavior
of the plaintiff in Palmer v. Sanderson, 9 F.3d 1433 (9th Cir.
4946 BROOKS v. CITY OF SEATTLE
1993). Palmer, stopped on suspicion of driving while intoxi-
cated, submitted to two field sobriety tests, but then told the
officer he was tired of taking tests and returned to his car.
Palmer offered to answer questions in his car or to accompany
the officer to the police station to take a breath test. We held
that these facts, if credited, established that “no reasonable
officer could believe there was probable cause to arrest
Palmer for ‘obstructing a public servant,’ ” because Palmer,
though uncooperative, did not actually flee the scene. Id. at
1437.

The majority should have reached the same result here as
in Palmer. Brooks stopped her car, she provided identifica-
tion, and the Officers issued a notice of infraction. The failure
to sign the notice no more prevented the Officers from carry-
ing out their duty than did Palmer’s refusal to cooperate fur-
ther after taking two field sobriety tests.

In short, there was just no cause to arrest Brooks for
obstructing an officer. None. That is probably why the Offi-
cers have never suggested that there was.

The majority also comes up with an alternative theory to
justify the custodial arrest, also never argued by the Officers
and so also waived, relying on State v. Hehman, 578 P.2d 527
(Wash. 1978). This approach is not a whit better on the merits
than the majority’s other creation.

Hehman held that custodial arrest is generally not proper
for a minor traffic violation, id. at 529, but suggested that
such an arrest might be permissible “when there are reason-
able grounds to believe that the accused will refuse to respond
to a citation.” Id. at 528 (quoting ABA Standards Relating to
Pretrial Release § 2.1 (Tent. Draft Mar. 1968)). In all three
cases adopting that suggestion cited by the majority, including
one unpublished decision by the Washington Court of
Appeals, the person arrested failed to produce any identifica-
tion and either did not own or did not claim to own the vehi-
 BROOKS v. CITY OF SEATTLE 4947
cle he was driving. See State v. Covington, 144 Wash. App.
1012 (Wash. Ct. App. 2008) (unpublished); State v. Jordan,
747 P.2d 1096 (Wash. Ct. App. 1987); State v. McIntosh, 712
P.2d 319 (Wash. Ct. App. 1986). The Washington courts have
never approved a custodial arrest for a non-arrestable offense
where the driver, like Brooks, produced identification and
owned the car she was driving. No case supports the majori-
ty’s assertion that limited uncooperative behavior is enough to
provide “reasonable grounds to believe that the accused will
refuse to respond to a citation.” Hehman, 578 P.2d at 528.

Here, Brooks’s explanation for her refusal to sign was that
she did not want to indicate she was guilty, not that she
intended to ignore the ticket. And, given that the Officers had
and recorded Brooks’s name and address, there were no rea-
sonable grounds for believing that the City would be unable
to hold Brooks accountable for the infraction or misdemeanor.
Thus, Washington’s narrow exception to the usual preclusion
of custodial arrest for a minor traffic violation does not apply,
and the majority’s conclusion that the Officers had probable
cause to place Brooks under custodial arrest for the traffic
violation itself is wrong.

The absence of probable cause to support a custodial arrest
affects both the excessive force inquiry and the question
whether the Officers are entitled to state qualified immunity.

III. Excessive Force

Because I find the majority’s excessive force analysis
entirely unpersuasive at each turn, I revisit each step of the
objective reasonableness inquiry under Graham v. Connor,
beginning with “the nature and quality of the intrusion on
[Brooks’s] Fourth Amendment interests.” Graham v. Connor,
490 U.S. 386, 396 (1989) (quoting Tennessee v. Garner, 471
U.S. 1, 8 (1985)).
4948 BROOKS v. CITY OF SEATTLE
A. Nature and Quality of Intrusion

I begin from the proposition that “[t]he three factors articu-
lated in Graham, and other factors bearing on the reasonable-
ness of a particular application of force, are not to be
considered in a vacuum but only in relation to the amount of
force used to effect a particular seizure.” Smith v. City of
Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (quoting Chew v.
Gates, 27 F.3d 1432, 1441 (9th Cir. 1994)). The majority
acknowledges this court’s determination in Mattos v. Aga-
rano, 590 F.3d 1082 (9th Cir. 2010) (per curiam), that a single
application of a Taser in drive-stun mode to the back of a sus-
pect’s hand amounted to “a serious intrusion into the core of
the interests protected by the Fourth Amendment: the right to
be ‘secure in [our] persons.’ ” Id. at 1087 (quoting U.S.
CONST. amend IV). Nonetheless, the majority minimizes the
amount of force the Officers used against Brooks in two dif-
ferent ways: (1) it distinguishes between the Taser’s two oper-
ating modes, the more commonly employed dart mode and
the drive-stun mode used in this case, and (2) it compares the
drive-stun mode to “pain-compliance techniques.” Neither
consideration has anything to do with the factors that really
matter here: The force used was quite painful, and it left per-
manent scars.

As to the majority’s first factor, we have held that Tasers
used in dart mode “constitute an intermediate, significant
level of force that must be justified by a strong government
interest that compels the employment of such force.” Bryan v.
McPherson, 590 F.3d 767, 774-75 (9th Cir. 2009) (quoting
Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d
1052, 1057 (9th Cir. 2003)) (internal quotations and brackets
omitted). The majority observes that using a Taser in drive-
stun mode does not cause the same neuromuscular incapacita-
tion that the dart mode produces. Noting that the Taser
deployment in Bryan caused the suspect to fall to the pave-
ment and shatter his teeth, the majority concludes that, “when
compared to the far more serious intrusion in Bryan, we find
 BROOKS v. CITY OF SEATTLE 4949
the quantum of force here to be less than the intermediate.”
Maj. op. at 4932. But in Mattos, we characterized the single
activation of a Taser in drive-stun mode as a “serious intru-
sion.” And the Eighth Circuit in Brown v. City of Golden Val-
ley, 574 F.3d 491 (8th Cir. 2009), held that a reasonable jury
could find that a single application of a Taser in drive-stun
mode to the arm of an individual suspected of committing a
“minor, nonviolent crime[ ]” and who posed no “realistic
threat to [the officer’s] safety” constituted excessive force. Id.
at 497-98. Although the court explained the difference
between the dart and drive-stun modes, id. at 495 n.3, the dis-
tinction played no role in the court’s excessive force analysis.

As to the majority’s second factor, the majority minimizes
the amount of force used in this case by equating it to “pain-
compliance techniques,” which it asserts “this court has found
involve a ‘less significant’ intrusion upon an individual’s per-
sonal security than most claims of force.” Maj. op. at 4932
(quoting Forrester v. City of San Diego, 25 F.3d 804, 807 (9th
Cir. 1994)). The majority states, somewhat misleadingly, that
“[t]he use of a Taser in drive-stun mode is considered a pain
compliance technique . . . by . . . our jurisprudence.” Maj. op.
at 4932 n.14 (citing San Jose Charter of Hells Angels Motor-
cycle Club v. City of San Jose, 402 F.3d 962, 969 n.8 (9th Cir.
2005)). But San Jose Charter did not distinguish between
Taser modes or even mention the drive-stun mode; it simply
noted that the officers in that case “did not bring with them
any of the variety of non-lethal ‘pain compliance’ weapons
used by police forces, such as tasers or stunbag shotguns.”
402 F.3d at 969 n.8.

In fact, that footnote defeats the majority’s suggestion that
pain-compliance techniques are necessarily a “less signifi-
cant” intrusion than most claims of force. The other pain-
compliance weapon identified in the footnote, a stunbag shot-
gun, has been recognized by this court as capable of causing
“grave physical injury.” Deorle, 272 F.3d at 1279 (holding
that “the degree of force used by [the officer] is permissible
4950 BROOKS v. CITY OF SEATTLE
only when a strong governmental interest compels the
employment of such force,” id. at 1280). Moreover, we have
held that Forrester cannot be read so broadly as to apply to
all so-called pain-compliance techniques:

Forrester did not hold that pain compliance tech-
niques are constitutionally permissible as a matter of
law. Nor did it establish a rule of qualified immunity
for the use of pain compliance techniques to arrest
passively resisting misdemeanants. Forrester simply
held that whether the use of [Orcutt Police Non-
chakus, two sticks of wood connected at one end by
a cord] as a pain compliance technique constituted
excessive force was a question of fact that was prop-
erly submitted to the jury for its decision.

Headwaters Forest Defense v. County of Humboldt (Headwa-
ters I), 240 F.3d 1185, 1201 (9th Cir. 2000), vacated on other
grounds, 534 U.S. 801 (2001) (internal quotation omitted).

The majority’s emphasis on placing a specific Taser mode
in a predetermined category of degree of force for purposes
of a Graham analysis is thus entirely wrongheaded. In short,
“[r]ather than relying on broad characterizations, we must
evaluate the nature of the specific force employed” on Brooks
in this case. Bryan, 590 F.3d at 774; see Deorle, 272 F.3d at
1279 (considering the specific effects of the force used on the
suspect as part of the quantum of force inquiry).

Doing so, I would conclude that the degree of force used
on Brooks was significant. Before Officer Jones used his
Taser on Brooks, Officer Ornelas pulled her left arm up
behind her back and held it there. That “pain-compliance”
hold prevented Brooks from complying with the Officers’
subsequent demands that she get out of her car. While Brooks
was thus immobilized, Officer Jones used his Taser on her
three times: first he applied it to her thigh, then he “dug it
into” her left arm, and finally he deployed it against her bare
 BROOKS v. CITY OF SEATTLE 4951
neck. At least on the second and third uses, Officer Jones
cycled the Taser through its full five-second cycle while
Brooks screamed for help. Brooks experienced “tremendous
pain,” fear, and “shock.” She began crying and instinctively
honked her horn. The Officers then dragged Brooks from the
car, laid her on her stomach in the street, and held her down
while they handcuffed her, despite her protestations that she
was pregnant and they were hurting her stomach. The Taser
left burn marks on Brooks’s thigh, shoulder, and neck. It also
left scars, including a scar on her arm that is probably perma-
nent.

In sum, the Officers inflicted a significant and frightening
amount of force at a time when Brooks was already immobi-
lized by a pain-compliance hold. The three Graham factors,
and other factors bearing on reasonableness, must be consid-
ered in light of that force.

B. Governmental Interests at Stake

1. Severity of the Crime

“The character of the offense is often an important consid-
eration in determining whether the use of force was justified.”
Deorle, 272 F.3d at 1280. As the majority recognizes, for pur-
poses of this appeal the only crime Brooks committed was the
misdemeanor of refusing to sign the notice of infraction. Maj.
op. at 4919 n.3. The majority acknowledges that that crime
was not “serious.” Id. at 4932. In fact, it was trivial. At the
time, it was not an arrestable offense, and today, the signature
requirement no longer exists. See 2006 Wash. Legis. Serv.
Ch. 270 (H.B. 1650). This factor favors Brooks overwhelm-
ingly.

Even if the majority is correct that there was probable cause
to arrest Brooks for obstructing an officer, that crime, as com-
mitted by Brooks (if it was), was also minor. See Davis v. City
of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007)
4952 BROOKS v. CITY OF SEATTLE
(“Trespassing and obstructing a police officer, as those
offenses were committed by [the suspect], are by no means
such serious offenses as to provide an officer with a reason-
able basis for subduing a person by the means employed by
Officer Miller.”); Deorle, 272 F.3d at 1281-82 (holding that
“the crime being committed, if any, was minor” where the
suspect “was charged with nothing more than obstructing the
police in the performance of their duties”).

This court has held that crimes significantly more severe
than obstructing an officer do not justify the use of force
against a suspect. In Smith, the suspect’s wife called the
police to report that he had physically abused her. Acknowl-
edging “the seriousness and reprehensibility of domestic
abuse,” the court nonetheless held that “the circumstances are
not such in this case as to warrant the conclusion that Smith
was a particularly dangerous criminal or that his offense was
especially egregious.” Smith, 394 F.3d at 702-03. The court
concluded that “the nature of the crime at issue provides little,
if any, basis for the officers’ use of physical force.” Id. at 703.
In comparison, Brooks was many fathoms from being a “dan-
gerous criminal.” She was not suspected of harming anyone
at all, just of refusing to sign a piece of paper. The crimes she
is alleged to have committed were trivial and provided no jus-
tification for the use of any force, let alone the significant
force the Officers employed.

The majority points to Mattos, in which this court held that
using a Taser against a woman charged with obstructing gov-
ernment operations did not constitute excessive force. See 590
F.3d at 1089. In Mattos, however, the police had responded
to a domestic violence call, and the woman’s actions pre-
vented them from arresting her husband, who was “belligerent
and appeared to be intoxicated.” Id. at 1088. The court con-
sidered the situation particularly dangerous and noted that
“more officers are killed or injured on domestic violence calls
than on any other type of call.” Id. (quoting United States v.
Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005)). We acknowl-
 BROOKS v. CITY OF SEATTLE 4953
edged that obstructing the officers was “not a serious crime,”
but also took into consideration the judgment that the
woman’s actions “carried the potential for a far more serious
crime — assault on an officer.” Id. Preventing officers from
arresting another person who appears to pose some danger to
them is a far cry from refusing to sign a traffic ticket. Mattos
does nothing to suggest that Brooks’s crime was anything but
minor.

2. Immediate Threat to the Safety of Others

The “most important single element of the three [Graham]
factors [is] whether the suspect poses an immediate threat to
the safety of the officers or others.” Smith, 394 F.3d at 702
(quoting Chew, 27 F.3d at 1441) (emphasis added). Had the
majority applied this factor correctly, it is inconceivable that
it would have determined that Brooks presented an “immedi-
ate threat.” Instead, the majority excises the word “immedi-
ate” from the inquiry, departs from the record to speculate
about actions Brooks might have taken, and concludes, rather
inexplicably, that a mother driving her son to school did pose
“some threat.” Maj. op. at 4934. That is not true on this record
and, in any event, under Graham, not enough.

The majority offers three reasons for its conclusion that
Brooks posed “some threat.” None is remotely convincing.

First, the majority suggests Brooks might have retrieved
her car keys from the floorboard, where Officer Ornelas had
dropped them, and “drive[n] off erratically.” Id. at 4933. To
begin with, it is very unlikely that Brooks, who was seven
months pregnant and weighed over 240 pounds, was even
capable of getting to her keys, restarting the ignition, and
driving off before the Officers could stop her. Nor is there any
indication whatever in the record that Brooks was inclined to
flee. Had she been, she had ample opportunity to do so;
instead, she provided identifying information when asked and
waited while Officer Ornelas wrote a ticket.
4954 BROOKS v. CITY OF SEATTLE
Even if Brooks were somehow able to retrieve her keys and
drive off, it is purely speculative to suggest that her driving
might have been “erratic” and posed some threat to the Offi-
cers or others. This case is nothing like Miller v. Clark
County, 340 F.3d 959 (9th Cir. 2003), in which the officer
“was entitled to assume that [the suspect] posed an immediate
threat,” in part because the officer knew he “was a felony sus-
pect wanted for the crime of attempting to flee from police by
driving a car with a wanton or willful disregard for the lives
. . . of others, . . . a crime that evinces a willingness to threaten
others’ safety in an attempt to escape responsibility for past
crimes.” Id. at 965 (internal citation omitted). Brooks was not
a felony suspect, and she had never shown any propensity to
flee from the police, whether “with a wanton or willful disre-
gard for the lives of others” or otherwise. Moreover, the
majority’s imagined scenario certainly does not qualify as an
“immediate threat,” and the majority admits as much, stating
that “it seems clear that Brooks was not going to be able to
harm anyone with her car at a moment’s notice.” Maj. op. at
4933.

The stacked-up, unsubstantiated speculations that Brooks
might have been able to retrieve the keys and might have
decided to drive off (although she did not when she had the
keys) and might have driven erratically if she did drive off
and might have endangered people had she done so simply
won’t do as a basis for believing Brooks posed a danger to
someone. Indeed, if Officer Ornelas really believed she was
going to take off and endanger people, all he had to do was
hold on to the keys rather than drop them in the car.

Second, the majority contends that Brooks posed a threat to
the Officers’ safety because she had refused to comply with
their demands that she leave her car, and they were “unable
to predict what type of noncompliance might come next.” Id.
at 4933-34. Like the earlier suggestion that Brooks might
retrieve her keys and drive off erratically, the suggestion that
she might engage in some unpredictable and dangerous act of
 BROOKS v. CITY OF SEATTLE 4955
noncompliance is based on nothing. “The record does not
reveal an articulable basis for believing that [Brooks] was
armed or that [she] posed an immediate threat to anyone’s
safety.” Chew, 27 F.3d at 1441. On the contrary, she had just
dropped her son off at school, she was not suspected of any
but the most trivial of crimes, she was unarmed, and she sat
wedged in a car that was not running and in which she could
not easily reach her keys. She had not harmed or threatened
to harm anyone. Officer Ornelas had performed a warrant
check and found that she was “all clear.” Given all of that,
there is just no evidence that Brooks posed any threat to any-
one’s safety, let alone an immediate threat — much less so,
in fact, than in other cases in which we have held that there
was no realistic danger to officers or others. See Smith, 394
F.3d at 702 (holding that, despite the suspect’s agitation and
his initial refusal to remove his hands from his pockets, “a
rational jury could very well find that he did not, at any time,
pose a danger to the officers or others” because there was “no
indication in the record that . . . there was any reason to
believe that he possessed any weapon,” and he “made no
threats, verbal or physical, toward [the officer] or anyone
else”); Deorle, 272 F.3d at 1281-82 (concluding that “the dan-
ger to [the officer] and others appears to have been minimal”
where the suspect was emotionally disturbed but “had dis-
carded his crossbow . . . and carried only a bottle or a can”
and “had not harmed or attempted to harm anyone”); Chew,
27 F.3d at 1442 (holding that a rational jury could “easily”
find that a suspect who fled a traffic stop and hid in a scrap
yard for ninety minutes but did not “engage[ ] in any threaten-
ing behavior during this time” ”posed no immediate safety
threat to anyone”).

The majority cites Officer Jones’s incident report, which
recounts his assessment of the situation as “very dangerous.”
But “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.” Deorle, 272 F.3d
at 1281. Officer Jones says he was concerned because the car
4956 BROOKS v. CITY OF SEATTLE
was still running. But by the time Officer Jones used his Taser
on Brooks, it was not running. Officer Ornelas had already
taken the keys from the ignition and dropped them on the
floorboard. The majority is unable to point to any objective
factors to justify Officer Jones’s perception that the situation
was so dangerous that he needed to use his Taser — not once,
but three times — on a pregnant woman ensconced in a car.

Finally, the majority relies, entirely inappropriately, on the
Washington legislature’s determination that obstructing an
officer is an arrestable offense to conclude that “Brooks posed
the sort of threat that it was appropriate to remove from the
streets.” Maj. op. at 4934. First, as I have already explained,
Brooks was not even arguably guilty of obstructing an officer.
Second, it cannot be the case that every person who obstructs
an officer also “poses an immediate threat to the safety of the
officers or others.” Smith, 394 F.3d at 702. “[A]n officer’s use
of force must be objectively reasonable based on his contem-
poraneous knowledge of the facts.” Deorle, 272 F.3d at 1281.
This court cannot judge whether a suspect posed an immedi-
ate threat to the safety of others simply by looking to whether
she is suspected of an arrestable offense. Instead, there must
be an “articulable basis” in the record for believing the sus-
pect is not only a suspect but a dangerous one. Chew, 27 F.3d
at 1441. In this case, it is clear there was no such basis, “ar-
ticulable” or otherwise. Thus, this “most important” Graham
factor weighs heavily in Brooks’s favor. Smith, 394 F.3d at
702.

3. Resistance to Arrest or Evading Arrest by Flight

The third Graham factor is whether the suspect was “ac-
tively resisting arrest or attempting to evade arrest by flight.”
Smith, 394 F.3d at 701 (quoting Graham, 490 U.S. at 396).
The majority begins by asserting that “the risk of flight . . .
was present.” Again, that is the wrong inquiry. The question
is not whether Brooks might have been able to flee had she
decided to try, but whether she was “attempting to evade
 BROOKS v. CITY OF SEATTLE 4957
arrest by flight.” See Smith, 394 F.3d at 703 (“Smith did not
attempt to run from the officers.”). It is clear from the record
that she was not.

As to the question of resisting arrest, the majority is likely
correct that Brooks’s conduct would have been classified as
“actively resistant” under the Seattle Police Department’s Use
of Force Training Guideline. The guideline defines an “ac-
tively resistant” suspect as one who “physically tenses his or
her muscles and/or locks their arms and legs using resistive
tension to avoid being controlled by the officer.” Brooks does
not dispute the Officers’ report that she held on to the steering
wheel and braced her legs against the floor to avoid being
pulled from her car.

All told, however, Brooks’s resistance was minimal. The
majority misleads when it says she “employed force to defeat
the Officers’ attempts to control her.” Maj. op. at 4934.
Although she tensed her muscles to prevent her own body
from being moved, she did not use force against the Officers.
This level and type of resistance, if it weighs against a finding
of excessive force at all, does so only slightly. See Smith, 394
F.3d at 702-03 (concluding that the suspect’s resistance was
not “particularly bellicose” because “he did not attack the
officers,” even though he “continually ignored the officers’
requests to remove his hands from his pajamas and to place
them on his head” and “shout[ed] expletives at the officers”);
see also Davis, 478 F.3d at 1056 (holding that a suspect who
was “somewhat uncooperative and resisted [the officer’s]
attempts to search his pockets” was not “actively resisting
arrest”).

C. Totality of the Circumstances

An additional factor this court may consider in its Graham
analysis is whether the Officers’ conduct “violated applicable
police standards.” Smith, 394 F.3d at 703. This factor is par-
ticularly important in a case, like this one, in which there was
4958 BROOKS v. CITY OF SEATTLE
no probable cause to support a custodial arrest. According to
the Seattle Police Department’s Policy and Procedure Manual,
an officer may “use only the minimal amount of force neces-
sary to overcome physical aggression or resistance to compli-
ance with a lawful process.” (Emphasis added.) Also, non-
deadly force is justified only when “necessarily used . . . [i]n
the performance of a legal duty.”

Officer Ornelas, testifying in Brooks’s criminal trial, con-
firmed that departmental regulations prohibited taking Brooks
into custody for refusing to sign the notice of infraction:

PROSECUTOR: So, then just so I make sure I am
clear then and to make sure I’m not misunderstand-
ing, although she refused to sign the speeding ticket,
which itself is a crime, you did not book her for that.

ORNELAS: Correct, sir.

PROSECUTOR: Could you within your discretion if
you had wanted to at that point?

ORNELAS: Do what, sir?

PROSECUTOR: Arrest her for refusing to sign the
speeding ticket —

ORNELAS: No, sir.

Because the Officers knew they had no authority to effect a
custodial arrest, they were not performing a legal duty and
Brooks was not refusing to comply “with a lawful process.”
Under the Seattle Police Department’s own policies, then, the
Officers were not justified in using any force. The Officers’
failure to comply with departmental standards is evidence a
jury could rely on in deciding that the repeated use of a Taser
— any Taser — on Brooks was unreasonable. See Smith, 394
F.3d at 703.
 BROOKS v. CITY OF SEATTLE 4959
The court may also consider the availability of alternative
methods of dealing with a suspect that adequately ensure that
the suspect will be subject to conviction and punishment. Cf.
Smith, 394 F.3d at 703. The majority rejects the district
court’s finding that there were “numerous other means of
removing” Brooks from her car, characterizing that finding as
“reflect[ing] after-the-fact speculation and fail[ing] to address
what else these officers could have done in the situation that
confronted them at that moment, when they needed to get the
resistant Brooks out of the car to arrest her.” Maj. op. at 4935.
The flaw in the majority’s reasoning is its underlying assump-
tion: that the Officers “needed” to remove Brooks from her
car.

Again, the Officers had no authority to effect a custodial
arrest. They had already obtained Brooks’s name and address
on the notice of infraction, and there was no need to compel
her to sign the notice. The Officers could simply make a nota-
tion indicating that Brooks had not signed — in fact, they did
exactly that. The clear alternative open to the Officers in this
case — and one infinitely more sensible than the route they
chose — was to allow Brooks to go on her way.

Finally, the majority maintains that the Officers’ decision,
upon being informed of Brooks’s pregnancy, “to employ a
localized type of force away from her stomach . . . . miti-
gate[s] against a finding of excessive force.” Id. at 4936. I fail
to see how the majority could so conclude. The Officers could
not have known how this woman who was seven months
pregnant would respond, physically or psychologically, to the
repeated application of thousands of volts of electricity to any
part of her body. They could not be sure, for instance, that the
pain and shock would not cause premature labor. See March
of Dimes, Preterm Labor and Birth: A Serious Pregnancy
Complication (April 2008), http://www.marchofdimes.com/
pnhec/188_1080.asp (citing physical abuse and stress as risk
factors for premature labor). Brooks’s physical condition mili-
tates in favor of finding excessive force.
4960 BROOKS v. CITY OF SEATTLE
In sum, Brooks committed a trivial, nonviolent, and nonar-
restable crime. There is no evidence that she posed any threat
at all to the safety of the Officers or others. Her resistance was
minimal and nonviolent and she was not attempting to flee.
The Officers violated departmental standards by using force
when they had no authority to effect a custodial arrest.

In these circumstances, no amount of force was justified.
For “the essence of the Graham . . . analysis is that the force
which was applied must be balanced against the need for that
force: it is the need for force which is at the heart of the Gra-
ham factors. . . . [W]here there is no need for force, any force
used is constitutionally unreasonable.” Headwaters I, 240
F.3d at 1199 (internal quotations omitted). And, just as the
Eighth Circuit held in Brown that a reasonable jury could find
that a single application of a Taser in drive-stun mode to the
arm of an individual suspected of committing a “minor, non-
violent crime[ ]” and who posed no “realistic threat to [the
officer’s] safety” constituted excessive force, 574 F.3d at 498,
so there is no question whatever that a reasonable jury could
find that the repeated use of a Taser on a woman driving her
son to school whose only crime was refusing to sign a notice
of infraction was objectively unreasonable.

D. Qualified Immunity

Because I think it obvious that the Officers violated
Brooks’s constitutional right to be free from unreasonable sei-
zure by using (grossly) excessive force on her, I reach the sec-
ond step of the qualified immunity inquiry: whether the right
violated was clearly established in a “particularized . . .
sense.” Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled
on other grounds by Pearson v. Callahan, 129 S. Ct. 808
(2009). The question is whether the Officers’ “use of force
was premised on a reasonable belief that such force was law-
ful, or . . . ‘whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confront-
 BROOKS v. CITY OF SEATTLE 4961
ed.’ ” Deorle, 272 F.3d at 1285 (quoting Saucier, 533 U.S. at
202).

Contrary to the majority’s suggestion, the relative scarcity
of federal cases resolving excessive force claims arising from
the use of Tasers does not preclude a denial of qualified
immunity. “[N]otwithstanding the absence of direct prece-
dent, the law may be, as it was here, clearly established. Oth-
erwise, officers would escape responsibility for the most
egregious forms of conduct simply because there was no case
on all fours prohibiting that particular manifestation of uncon-
stitutional conduct.” Deorle, 272 F.3d at 1285-86 (internal
citation omitted). When there is no case law directly on point,
the question we must ask is “whether the state of the law at
the time of the alleged wrong gave the defendants fair warn-
ing that their alleged treatment of the plaintiff was unconstitu-
tional.” Davis, 478 F.3d at 1056 (quoting Hope v. Pelzer, 536
U.S. 730, 741 (2002)) (internal quotations and brackets omit-
ted).

Here, there is “no question that any reasonable officer
would have known that the force used was excessive, from an
elementary understanding of the obligations of law enforce-
ment officers toward all individuals in the community they
serve as well as from a review of the well-established law.”
Davis, 478 F.3d at 1056-57. This is not a close case. Any rea-
sonable officer should have known that using a Taser repeat-
edly on a pregnant woman who had committed a trivial,
nonviolent crime and who posed no realistic threat to the
safety of others was unlawful. Even if the Officers did irratio-
nally perceive some threat at the time (rather than developing
a post-hoc explanation for their behavior), that would not suf-
fice; a reasonable officer would not have seen any danger in
the objective circumstances. And “a number of our cases . . .
inform law enforcement officers of their obligation under the
Constitution to refrain from the use of excessive force.” Id.
Just as Brown, 574 F.3d at 499, held that “[a]t the time [the
officer] deployed his Taser and arrested [the plaintiff], the law
4962 BROOKS v. CITY OF SEATTLE
was sufficiently clear to inform a reasonable officer that it
was unlawful to Taser a nonviolent, suspected misdemeanant
who was not fleeing or resisting arrest, who posed little to no
threat to anyone’s safety,” so I would hold the law here suffi-
ciently clear to inform the Officers that using a Taser, in any
mode, to subdue Brooks was unconstitutional. See Bryan, 590
F.3d at 782 (“No reasonable officer confronting a situation
where the need for force is at its lowest — where the target
is a nonviolent, stationary misdemeanant twenty feet away —
would have concluded that deploying intermediate force with-
out warning was justified.”).6

For these reasons, the Officers are not entitled to summary
judgment on Brooks’s § 1983 claim.

IV. State Qualified Immunity

Nor are the Officers entitled to qualified immunity from
Brooks’s state law claims. Under Washington law, qualified
immunity is not available “for claims of assault and battery
arising out of the use of excessive force to effectuate an
arrest.” Staats v. Brown, 991 P.2d 615, 627-28 (Wash. 2000).
Even if there were no excessive force, however, I would still
disagree with the majority’s grant of state qualified immunity,
because the Officers effected a custodial arrest in contraven-
tion of Washington law.
6
Although the majority does not reach the second step of the qualified
immunity inquiry, it notes that this court held in Mattos that “it would not
have been clear to any reasonable officer on August 23, 2006, that use of
a Taser in the situation they confronted was constitutionally impermissi-
ble.” 590 F.3d at 1089. Again, however, the Mattos court focused on the
domestic violence context in distinguishing Bryan and reaching its conclu-
sion: “The officers used the Taser only once in a domestic violence situa-
tion that could have quickly become much more dangerous to everyone
involved.” Id. at 1090. Here, the Officers used the Taser multiple times in
a situation utterly devoid of the indicators of dangerousness present in
Mattos.
 BROOKS v. CITY OF SEATTLE 4963
The standard for Washington state qualified immunity is
different from the standard for qualified immunity under fed-
eral law. See Staats, 991 P.2d at 627. Under Washington law,
an officer is entitled to qualified immunity from state law
assault and battery claims only if the officer “(1) carries out
a statutory duty, (2) according to procedures dictated to him
by statute and superiors, and (3) acts reasonably.” Id. (internal
quotation omitted). An officer does not fulfill his statutory
duty when he “consummate[s] the arrest contrary to existing
court rule and statute.” Id. Also, “an arrest amounting to a
statutory violation [cannot] be ‘reasonable.’ ” Id.

Applying these rules in Staats, the Washington Supreme
Court denied state qualified immunity to a state fish and wild-
life officer whose actions were similar to those of the Officers
in this case. Id. at 626-28. The plaintiff in Staats refused to
provide the defendant wildlife patrol officer with identifica-
tion. After the “quite heated discussion” that followed Staats’s
refusal, the officer arrested him for “refusing to cooperate to
receive a citation, contrary to former RCW 75.10.040
(1992).” Id. at 618. At that point, Staats “sidestepped and
attempted to walk away” from the officer. Id. The officer then
grabbed him and allegedly “slammed” him to the ground. The
officer also purportedly “pulled Staats’ ears straight out from
his head causing extreme pain and suffering.” Id. Staats was
later charged with both “refus[ing] to give information to an
officer performing his duties, contrary to former RCW
75.10.040,” and “resisting arrest, contrary to RCW
9A.76.040.” Id.

After reviewing the text of Wash. Rev. Code § 75.10.040
and the case law interpreting the statute, the court concluded
that Staats’s “arrest for refusal to provide identification” was
unlawful because “(1) simply withholding information is not
criminal resistance under [the] statute as a matter of law, and
(2) [the officer] was not acting in discharge of a duty when
he demanded information to support issuance of a citation he
had no lawful authority to issue.” Id. at 623. The court further
4964 BROOKS v. CITY OF SEATTLE
held that, because the officer had “consummated the arrest
contrary to existing court rule and statute,” he was not entitled
to state qualified immunity. Id. at 627.

In this case, as I have explained, the relevant statutes did
not permit the Officers to take Brooks into custody for refus-
ing to sign the notice of infraction. Thus, the Officers “con-
summated the arrest contrary to existing . . . statute.” Id. That
statutory violation also made the Officers’ conduct unreason-
able. See id. Under Washington law, the Officers are not enti-
tled to summary judgment on Brooks’s state law claims.

V. Conclusion

For these reasons, I would affirm the district court’s order
denying summary judgment to the Officers. I respectfully dis-
sent.