(Concurring in part and Dissenting in part):
The level of excruciating detail to which the majority opinion must resort to answer the question of whether Officer Moquin’s actions at the doorway of John LaLonde’s apartment were reasonable illustrates one of the serious and perplexing problems police officers face when they attempt in the field to enforce our laws: only a skilled lawyer steeped in the labyrinthine intricacies of the Fourth Amendment can hope to divine the correct answers. The majority’s scholarly solution is certainly impressive, but reading it makes one wonder how a police officer faced with unknown protagonists and antagonists in unfamiliar and potentially hostile circumstances can be expected to react to an extemporaneous drama while at the same moment measuring split second occurrences in constitutional terms. In cold print, the events of July 21, 1996, appear one way, but as they were unfolding two and a half years ago, they surely had a different cast and immediacy.
It is because of this harsh reality that we have adopted for members of our executive branches of government the doctrine of qualified immunity. This doctrine protects law enforcement officers from lawsuits for damages predicated upon discretionary acts reasonably performed, even when in the sunlight of hindsight it turns out that the act cannot be squared with constitutional rights. As the Supreme Court explained in Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991), “[t]his accommodation for reasonable error exists because ‘officials should not err always on the side of caution’ because they fear being sued.” Id. at 229, 112 S.Ct. 534 (quoting Davis v. Scherer, 468 U.S. 183, 196, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984)). Accordingly, “[t]he qualified immunity standard ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Id. (quoting Malley v. Briggs, 475 U.S. 335, 343, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). Thus, although a court might suppress the fruits of a seizure as acquired by means of a violation of the Fourth Amendment, the officer who conducted the seizure might well be immune from a private law suit for damages.
Hunter sends an unmistakable message: if a reasonable officer could have believed his challenged action to be lawful in light of clearly established law and the information the officer possessed, the officer taking that action is entitled to immunity from suit, even if the officer’s judgment turns out to have been mistaken. Moreover, “because ‘the entitlement is an immunity from suit rather than a mere defense to' liability,’ we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Id. at 227, 112 S.Ct. 534 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (emphasis in original)).
After measuring this record by the Supreme Court’s rules, and looking at it in the light most favorable to LaLonde’s alie-*963gations, I conclude that Officer Moquin did not establish pre-trial an entitlement to qualified immunity with respect to La-Londe’s Fourth Amendment claims. If LaLonde is to be believed, a reasonable police officer knowing what this officer knew when he approached LaLonde’s doorway on a neighbor’s complaint — coupled with LaLonde’s disputatious behavior — could not have believed he was justified in reaching into LaLonde’s apartment and grabbing him by the shirt in an attempt to extricate him from the apartment. According to LaLonde, he was passively standing in his apartment when Officer Moquin grabbed him. Given La-Londe’s version of the facts, no reasonable officer at that juncture, could have believed that probable cause, or for that matter even reasonable suspicion, existed to restrain LaLonde in this fashion.
Officer Moquin, on the other hand, disputes LaLonde’s version of the facts. The officer says that he grabbed LaLonde because a hostile LaLonde turned and headed into his apartment. Moquin’s reason for this act was his concern that an obviously agitated LaLonde was going for his rifle, as warned about by the complaining witness.
If the undisputed facts were as related by Officer Moquin, I would conclude with no hesitancy that Officer Moquin was entitled to qualified immunity. A reasonable officer confronted with a disputatious suspect who a complaining neighbor said had a rifle and might use it against law enforcement could easily have believed the suspect was dangerous. Our law on this subject is clearly established: exigent circumstances involving the physical peril of officers can alter normal Fourth Amendment rules. It is nowhere clearly established that the facts and circumstances of this encounter were insufficient to allow the restraint of this subject if he tried to retreat into his apartment. In United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), the Court excused an officer’s failure to secure a warrant for a house because the suspect’s retreat into the house from the doorway created the possibility of the destruction by the suspect of physical evidence. The safety of an officer is surely on a par with concern about physical evidence. See United States v. Turner, 926 F.2d 883, 887 (9th Cir.1991); United States v. Ramirez, 770 F.2d 1458, 1461 (9th Cir.1985); United States v. Manfredi, 722 F.2d 519, 522 (9th Cir.1983). Because dangerous people do not differentiate between misdemeanors and felonies, the law should not either. It is a fact that many officers are killed during traffic stops for mere infractions.
But, here’s the rub: the facts are disputed, and the disputed facts here should have been submitted to the jury, even when qualified immunity from suit was an issue. Issues of credibility belong to the trier of fact. The Seventh Amendment to the Constitution so requires. Thompson v. Mahre, 110 F.3d 716, 719 (9th Cir.1997) makes this as clear as the proverbial bell. See also Johnson v. Jones, 515 U.S. 304, 317-18, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (holding that the existence of genuine issues of material facts render not appealable a pre-trial denial of summary judgment on the issue of qualified immunity).
As for LaLonde’s claims of excessive force, I respectfully disagree with the majority’s conclusion that the “knee-in-the-back” allegation was sufficient to survive a claim of qualified immunity. There is no doubt from this record, none whatsoever, that LaLonde was resisting arrest when this force was applied. He admits this unlawful behavior. A person being detained or arrested has no right to resist, even if the detention or arrest is without reasonable suspicion or probable cause. A reasonable officer could certainly conclude given these circumstances that the weaponless application of non-lethal and non-dangerous force — such as a knee-in-the-back — was proper under the law. That another view of the reasonableness of this force could also be possible is of no conse*964quence. Hunter says that “court[s] should ask whether the agents acted reasonable under settled law in the circumstances, not whether another reasonably, or more reasonable, interpretation of the events can be constructed five years after the fact.” Hunter, 502 U.S. at 228, 112 S.Ct. 534. The majority opinion makes the same mistake corrected by the Supreme Court in Hunter.
LaLonde’s garden variety handcuffing allegation is equally unpersuasive. Handcuffs are uncomfortable and unpleasant, and LaLonde proffers nothing but subjective evidence that their use in this case constituted excessive force. Handcuffing an arrestee is standard practice, everywhere.
Where I do agree with the majority opinion with respect to excessive force is on the allegation of unnecessarily prolonged exposure to pepper spray. Given these facts, the failure of the officers to follow their first aid training could very well amount to the purposeful use of excessive force for which a cause pf action would exist. The resolution of this issue was for the jury.
Accordingly, I would affirm the district court on its rulings except for its decision to dismiss the unlawful seizure and arrest claim, and its decision during the trial to take away from the jury the excessive force claim as to the prolonged exposure to pepper spray.