dissenting:
The essential facts are not disputed. Plaintiff Richard Deorle was deranged and out of control when Deorle’s wife made her 911 call to the police. When Deorle saw his wife on the telephone calling for help, he told her that they would have to come kill him.
After the first deputy sheriff (Mahon) arrived at the scene, Deorle was observed holding a two-by-six board with nails protruding from the end of it. According to Mrs. Deorle’s taped-recorded statement on the day in question, Deorle “was so angry, that he just started lifting up the porch, you know the board, it has a railing and he lifted up the railing and he was like swinging it” like a baseball bat. At her deposition held three years later, Mrs. Deorle stated that he was “screaming” but not swinging the board around. Either way, the undisputed fact is that Deorle, while screaming and out of control, was in possession of a board with protruding nails, and that he finally dropped it when Mahon took his pistol out of his holster.
Mahon was able to get Deorle’s wife and children safely into his police car. Mrs. Deorle told Mahon that Deorle was depressed, that he had been drinking, that he was in a rage caused by his medication, that he previously had been arrested for assaulting her in a domestic incident, and that he had been on probation.
It is undisputed that after dropping the board, Deorle picked up two hatchets and a crossbow. According to Mrs. Deorle, the crossbow was of the type used for recreational target shooting, not hunting, and that “it does look serious.” In her tape-recorded interview, she recalled that when the police on the scene asked her whether her husband had any weapons, she told them, “No, except he has a crossbow.” 1
Lt. Estes heard Deorle say that he wanted to die and that he would kill anyone who came on his property. It was around this time that Deputy Rutherford arrived at the scene and was briefed on all of the above. Deorle dropped the hatchets, but continued to hold the crossbow in his right hand. In his left hand he was carrying a can of lighter fluid. He dropped the crossbow, advanced toward Rutherford and then said something to the effect of, “I’m going to kick your ass, motherfucker.”
It is undisputed that Rutherford was trained in the proper use of the so-called beanbag round, which is designed to knockdown and incapacitate a person so that an arrest can be effected. The majority is right; it is not a toy, but it is not designed to kill or injure. To the contrary, it is designed to prevent serious injury. Although virtually anything can cause death or serious injury under the right circumstances and the beanbag round is no exception, see Vera Cruz v. City of Escondido, 139 F.3d 659 (9th Cir.1997), the undisputed evidence established that the firing of a beanbag round from a 12-gauge shotgun at a person’s “center mass” from a distance of 20 to 40 feet is not reasonably likely to cause death or serious injury.
I view these undisputed facts the way the district judge did. Deorle may have *1131been sick, he may have been deranged, but that did not make him any less dangerous to the officers who responded to Mrs. Deorle’s call for help. Deorle advanced toward Rutherford, threatening to harm him, while carrying a quart can of lighter fluid. Rutherford had no duty to wait to be doused with a flammable liquid or to be set ablaze before acting to protect himself. Rutherford may not have had the right to use deadly force at that point, but he had every right to protect himself with a degree of force likely only to temporarily incapacitate. That is what he did. The evidence is uncontradicted that the beanbag round was fired at Deorle’s lower right abdomen but that it suddenly “flew up” and unexpectedly and unintendedly hit Deorle in the face.
A key ingredient of the majority’s qualified immunity analysis is its view that an officer has a duty to warn, if possible, before deploying any force, even a degree of force that is not reasonably likely to cause death or serious injury. The problem is that none of the cases cited by the majority has so held.2 Maybe the law ought to require a police officer to give a warning before such force is used. However, the issue at the moment is whether such a requirement was clearly established on September 9, 1996, the date on which Rutherford was called to the Deorle home. It was not.
Where does this leave us? The undisputed facts show that Rutherford, without a warning, used a degree of force that was not reasonably likely to cause death or serious injury, against a deranged man whose behavior prompted his wife to call 911, who police saw in possession of a board with protruding nails, then two hatchets, then a crossbow, and who was then advancing toward' Rutherford with a can of flammable liquid while declaring his intention to do .Rutherford harm. I agree with the district judge. Rutherford is entitled to qualified immunity because a reasonable officer could have believed that his conduct was lawful. Act Up!/Portland v. Bagley, 988 F.2d 868 (9th Cir.1993). I would affirm the granting of summary judgment in favor of Rutherford and the Sheriff of Butte County.
. Brewer v. City of Napa, 210 F.3d 1093 (9th Cir.2000); Vera Cruz v. City of Escondido, 139 F.3d 659 (9th Cir.1997); Headwaters Forest Def. v. County of Humboldt, 211 F.3d 1121 (9th Cir.2000) superceded by 240 F.3d 1185 (2000); Katz v. United States, 194 F.3d 962 (9th Cir.1999), cert. granted, - U.S. -, 121 S.Ct. 480, 148 L.Ed.2d 454 (2000).