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 on a rampage, 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 ear. 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 *1121serious injury. Furthermore, 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.2
Under Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the first issue is whether, taken in the light most favorable to Deorle, the facts show that a constitutional right was violated. The undisputed facts show that it was not. Deorle may have been 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 brandishing 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. The majority’s insistence on portraying Deorle as unarmed is simply incorrect. He was armed with a container of lighter fluid and was advancing toward Rutherford while threatening to kick his ass. 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.
True, Rutherford did not issue a warning before firing the beanbag round at the advancing Deorle, but there is no telling, even in hindsight, what Deorle might have done had a warning been issued. Only a short time earlier, Deorle told his wife that he wanted to die and that if the police came on his property they would have to kill him — and Rutherford knew that. Deorle might have surrendered, but he also might have attempted to set Rutherford on fire or engage in self-immolation. Deorle also might have kept on coming, and if he got closer than 20 feet away, the beanbag round could not have been used. Then hand-to-hand combat would have been inevitable, which is not without its own serious, sometimes life-threatening, risks to suspects and officers alike. Under the circumstances, it was not objectively unreasonable for Rutherford to attempt to safely and preemptively subdue him as he did. See Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). As the Court said in Saucier, “If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed.” 121 S.Ct. at 2158. Under Saucier, that should end the inquiry.
But even if Rutherford were mistaken about whether the amount of force he used was legal in the circumstances, the issue under the second part of the Saucier sequential analysis becomes whether the officer’s mistake was reasonable. Id. “An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.” Id. This turns on whether the officer’s conduct violated a “clearly established rule.” Id. at 2160.
The facts outlined above demonstrate that Rutherford’s response to Deorle’s threatening actions, even if excessive, even if mistaken, was not an unreasonable mistake. It did not violate any clearly established rule. It is undisputed that he deployed a degree of force that he was trained to use and that he reasonably be*1122lieved would subdue the advancing and threatening Deorle without doing any significant harm. Neither Deorle nor the majority, as required by the Supreme Court, “has identified any case demonstrating a clearly established rule prohibiting the officer from acting as he did.” Id. The majority admits that “there is no prior case prohibiting the use of this specific type of force in precisely the circumstances here involved.” Majority Op. at 1119. In fact, the best the majority can come up with is cases involving the use of pain compliance techniques, not in self-defense, but to disperse nonviolent protestors (Forrester v. City of San Diego, 25 F.3d 804 (9th Cir.1994); Headwaters Forest Def. v. County of Humboldt, 240 F.3d 1185 (9th Cir.2000)). Likewise, Alexander v. City and County of San Francisco, 29 F.3d 1355, 1366 (9th Cir.1994) concerns the circumstances under which the police may storm a house, not self-defense. Neither Brewer v. City of Napa, 210 F.3d 1093 (9th Cir.2000) nor Headwaters Forest held that warnings are required before deploying force. But even if they did, which they don’t, they were decided four years after Rutherford’s encounter with Deorle.
Because I believe that Rutherford was entitled to qualified immunity, I would affirm the granting of summary judgment in his favor and in favor of the Sheriff of Butte County. Accordingly, I respectfully dissent.
. It is unclear whether the crossbow was loaded. However, two days after the incident, when asked in a recorded interview about whether the crossbow was loaded, Deorle replied, “Yeah, but shit, it wouldn't even put a hole in that wall right here.” He also stated that the crossbow fired a “little arrow” that "basically” had a standard point like on a normal arrow. There is nothing in the record to suggest that the crossbow was a child's toy or looked like one.
. It is interesting to note that the declaration of retired Sacramento Police Department Sgt. Peter A. Reedy, which is referred to twice in the majority opinion, contains not one word indicating that Sgt. Reedy has any experience, training or expertise with beanbag rounds.