Bryan v. MacPherson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CARL BRYAN, 
Plaintiff-Appellee, No. 08-55622
v. D.C. No.
BRIAN MACPHERSON; CORONADO  3:06-CV-01487-
LAB-CAB
POLICE DEPARTMENT; CITY OF
CORONADO, a municipal ORDER AND
corporation, OPINION
Defendants-Appellants.

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding

Argued and Submitted
October 9, 2009—Pasadena, California

Filed November 30, 2010

Before: Harry Pregerson, Stephen Reinhardt and
Kim McLane Wardlaw, Circuit Judges.

Order;
Concurrence to Order by Judge Wardlaw;
Dissent to Order by Judge Tallman;
Opinion by Judge Wardlaw

18883
 BRYAN v. MACPHERSON 18887

COUNSEL

Steven E. Boehmer, David Stotland, Carrie L. Mitchell of
McDougal, Love, Eckis, Smith, Boehmer & Foley, El Cajon,
California, for the appellant.

Eugene G. Iredale, Julia Yoo of Law Offices of Eugene G.
Iredale, San Diego, California, for the appellee.

ORDER

The opinion filed on June 18, 2010, and reported at 608
F.3d 614, is hereby withdrawn. The clerk shall file the
attached superseding opinion.

Having considered the opinion as amended, the panel has
unanimously voted to deny the Petition for Panel Rehearing
and the Petition for Rehearing En Banc.

The full court was advised of the Petition for Rehearing En
Banc and a judge of the court requested a vote on whether to
rehear the case en banc. The en banc call failed to receive a
majority of votes by active judges in favor of en banc consid-
eration. Fed. R. App. P. 35.
18888 BRYAN v. MACPHERSON
The Petition for Panel Rehearing and the Petition for
Rehearing En Banc are DENIED. No further petitions for
rehearing or for rehearing en banc may be filed.

WARDLAW, Circuit Judge, joined by Judges PREGERSON,
REINHARDT, and W. FLETCHER, concurring in the denial
of rehearing en banc:

The panel paid the “require[d] careful attention to the facts
and circumstances of [this] case, including the severity of the
crime at issue, whether the suspect pose[d] an immediate
threat to the safety of the officers or others, and whether he
[was] actively resisting arrest or attempting to evade arrest by
flight,” Graham v. Connor, 490 U.S. 386, 396 (1989). We
concluded that Officer Brian MacPherson used excessive
force when, on July 24, 2005, he deployed his X26 taser in
dart mode to apprehend Carl Bryan for a seatbelt infraction,
where Bryan was obviously and noticeably unarmed, made no
threatening statements or gestures, did not resist arrest or
attempt to flee, but was standing inert twenty to twenty-five
feet away from the officer. See Bryan v. MacPherson, 608
F.3d 614, 618 (9th Cir. 2010). At the heart of our holding was
the conclusion that the X26 taser and similar devices, when
used in dart mode, constitute an “intermediate, significant
level of force that must be justified by the governmental inter-
est involved.” Id. at 622. We nonetheless concluded that Offi-
cer MacPherson was entitled to qualified immunity from
Bryan’s 42 U.S.C. § 1983 suit, because this principle was not
clearly established in 2005 when Officer MacPherson
deployed his dart gun on Bryan. See id. at 629. A majority of
the active judges of our court voted against rehearing en banc,
and I concur.

The opinion accurately recites the factual record and we
need not repeat it here. See id. at 618-19. Although the panel’s
original opinion affirmed the district court’s denial of quali-
 BRYAN v. MACPHERSON 18889
fied immunity, Officer MacPherson and amici curiae League
of California Cities and California State Association of Coun-
ties suggested we reconsider given that two other taser cases
arising from incidents that occurred about the same time as
Bryan’s tasing were pending in our circuit. We did so, and,
although we did not alter our holding that Officer MacPher-
son used excessive force on Bryan, we concluded that, based
on “recent statements [in other circuit opinions] regarding the
use of tasers, and the dearth of prior authority,” a “reasonable
officer in Officer MacPherson’s position could have made a
reasonable mistake of law regarding the constitutionality of
the taser use in the circumstances Officer MacPherson con-
fronted in July 2005.” Id. at 629. After the panel filed its
amended opinion, only Bryan petitioned for panel rehearing
or rehearing en banc. Officer MacPherson opposed Bryan’s
petition, arguing that the panel had correctly applied the law
of qualified immunity. In other words, our current decision is
a denial of Bryan’s — and not Officer MacPherson’s — peti-
tion for rehearing en banc.

After mischaracterizing the record, misstating our holding,
and attacking our opinion for language it does not in fact con-
tain, Judge Tallman ultimately bases his dissent to our deci-
sion against rehearing en banc upon the largely unsupported
and nonsensical belief that use of a device designed to fire a
dart up to one-half inch into bare skin and deliver a 1200 volt
charge somehow does not constitute an intermediate use of
force. He cites no intra-circuit conflict created by our deci-
sion, but instead asserts that we erred by quoting binding cir-
cuit precedent. He cites no inter-circuit conflict created by our
decision, but instead faults us for joining the growing national
judicial consensus that tasers in dart mode constitute an inter-
mediate level of force. More strikingly, he fails to tell the
public that our court has simultaneously chosen to rehear the
two other taser cases en banc — not because those opinions
disagreed with the intermediate-level-of-force conclusion in
Bryan, for they did not — but instead to reconsider how best
to balance “the nature and quality of the intrusion on the indi-
18890 BRYAN v. MACPHERSON
vidual’s Fourth Amendment interests” against “the counter-
vailing governmental interests at stake” as required by
Graham, 490 U.S. at 396. See Brooks v. City of Seattle, 599
F.3d 1018 (9th Cir. 2010), rehr’g en banc granted by ___
F.3d __, 2010 WL 3896202 (9th Cir. Sep 30, 2010); Mattos
v. Agarano, 590 F.3d 1082 (9th Cir. 2010), rehr’g en banc
granted by ___ F.3d ___, 2010 WL 3931122 (9th Cir. Oct 04,
2010).1

I.

Our conclusion that use of the X26 taser and similar
devices in dart mode constitutes an “intermediate, significant
level of force that must be justified by the governmental inter-
est involved,” Bryan, 608 F.3d at 622, falls well within the
national mainstream of the decisions which have examined
the nature and quality of the intrusion posed by tasers. Most
recently, the Tenth Circuit (Judges Kelly, Brorby, and Gor-
such) concluded that the use of a taser gun like the one at
issue here “against a non-violent misdemeanant who appeared
to pose no threat and who was given no warning” was uncon-
1
In Brooks, Judges Hall and O’Scannlain properly distinguished tasers
employed in stun mode as opposed to dart mode. Citing Bryan, the panel
majority observed that a taser in “dart” mode is an intermediate level of
force, and recognized that “[o]ther circuit and district court decisions have
also found the Taser dart application to be an intermediate amount of
force.” Brooks, 599 F.3d at 1027 n.13. In Mattos, the three-judge panel
(Chief Judge Kozinski, Judge Bybee, and Judge Callahan), addressing the
nature and quality of the intrusion resulting from use of a taser in dart
mode, noted “[w]e are left with evidence that the Taser, in general, is more
than a non-serious or trivial use of force but less than deadly force” and
stated “we have no difficulty concluding that the Taser stun was a serious
intrusion into the core of the interests protected by the Fourth Amend-
ment: the right to be ‘secure in [our] persons.’ ” Mattos, 590 F.3d at 1087
(quoting U.S. Const. amend. IV). In neither decision did the panel find the
use of force to be excessive, based upon consideration of the facts unique
to each case, and the issue to be determined by the en banc panel is
whether that assessment was correct. These appeals have been consoli-
dated for rehearing on December 14, 2010.
 BRYAN v. MACPHERSON 18891
stitutional excessive force under Graham, for which the offi-
cer did not enjoy qualified immunity. Cavanaugh v. Woods
Cross City, ___ F.3d ___, 2010 WL 4332289, at *2-4 (10th
Cir. 2010). Citing our decision in Bryan, Judge Kelly wrote

Although Tasers may not constitute deadly force,
their use unquestionably “seizes” the victim in an
abrupt and violent manner. Accordingly, the “nature
and quality” of the intrusion into the interests of Ms.
Cavanaugh protected by the Fourth Amendment was
quite severe.

Id. at *3. This follows upon numerous decisions agreeing that
the use of tasers is at least an intermediate, if nonlethal, level
of force. See, e.g., Oliver v. Fiorino, 586 F.3d 898, 903 (11th
Cir. 2009) (recognizing that the taser is “designed to cause
significant, uncontrollable muscle contractions”); Orem v.
Rephann, 523 F.3d 442, 447-48 (4th Cir. 2008) (rejecting the
contention that a taser constitutes a minor or de minimus level
of force); Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993)
(“We find defendants’ attempt, on appeal, to minimize the
pain of being shot with a stun gun . . . to be completely base-
less. The defendants’ own testimony reveals that a stun gun
inflicts a painful and frightening blow, which temporarily par-
alyzes the large muscles of the body, rendering the victim
helpless.”); Cavanaugh v. Woods Cross City, 2009 WL
4981591, at *5 (D. Utah Dec. 14, 2009) (“The Graham fac-
tors in this case clearly cautioned against a significant use of
force, such as the deployment of a taser.”); Crowell v. Kirk-
patrick, 667 F. Supp. 2d 391, 408 (D. Vt. 2009) (recognizing
that tasers have “been described by other courts as ‘moderate,
non-lethal force” and cause “acute — even severe — physical
pain”); Orsak v. Metro. Airports Comm’n, 675 F. Supp. 2d
944, 957-59 (D. Minn. 2009); Cyrus v. Town of Mukwonago,
2009 WL 1110413, at *21 (E.D. Wis. April 24, 2009) (“The
Court will view the use of a taser as an intermediate or
medium, though not insignificant, quantum of force . . . .”);
Kaady v. City of Sandy, 2008 WL 5111101, at *16 (D. Or.
18892 BRYAN v. MACPHERSON
Nov. 26, 2008) (“I therefore conclude that use of a Taser con-
stitutes an intermediate level of force and a significant intru-
sion on a victim’s Fourth Amendment rights.”); McDonald v.
Pon, 2007 WL 4420936, at *2 (W.D. Wash. Dec. 14, 2007)
(“Taser use is considered an intermediate control tactic.”);
Beaver v. City of Federal Way, 507 F. Supp. 2d 1137, 1144
(W.D. Wash. 2007) (“[T]he Court first finds that the use of a
Taser constituted significant force.”); Parker v. City of South
Portland, 2007 WL 1468658, at *22 (D. Me. May 18, 2007)
(“In the circumstances, the Taser fairly can be characterized
— as it has been by one court—as a significantly violent level
of force.”); DeSalvo v. City of Collinsville, 2005 WL
2487829, at *4 (S.D. Ill. Oct. 7, 2005). Indeed, Judge Tallman
fails to cite a single case in any circuit or district court sug-
gesting otherwise.

The growing national consensus that devices such as the
X26 when used in dart mode constitute an intermediate level
of force is also clearly reflected in national studies — includ-
ing the one study that Judge Tallman cites in his dissent —
and in the views of law enforcement professionals. See, e.g.,
William P. Bozeman et al., Safety and Injury Profile of Con-
ducted Electrical Weapons Used by Law Enforcement Offi-
cers Against Criminal Suspects, Annals of Emerg. Medicine,
April 2009, at 480 (“Conducted electrical weapons are one of
several intermediate force options available to officers faced
with violent or combative suspects.”); id. at 485 (“Prevention
of significant or fatal injuries is desirable and an important
consideration in discussion of the safety of intermediate force
options, including conducted electrical weapons.”).

Police research organizations also agree that tasers are at
least an intermediate level of force. Canadian Police Research
Centre, Review of Conducted Energy Devices 25 (Aug. 22,
2005) (“[Controlled Electric Devices] are considered interme-
diate weapons in the North American, law enforcement, use
of force vernacular.”), http://www.css.drdc-rddc.gc.ca/cprc/tr/
tr-2006-01.pdf; see also Merrick Bobb et. al, Police Assess-
 BRYAN v. MACPHERSON 18893
ment Resource Center, A Bad Night at Powell Library: The
Events of November 14, 2006, at 75 (“[T]he shock from a
Taser constitutes a significant and painful use of force
. . . .”).

Tellingly, in a 2005 report on the use of tasers in seven
selected law enforcement agencies, the United States Govern-
ment Accountability Office (GAO) found that six of the seven
agencies permitted taser use only when situations had reached
the third (“Volatile”) and fourth (“Harmful”) levels of the
five-level FLETC (Federal Law Enforcement Training Cen-
ter) Use-of-Force Continuum, which permit the use of “Com-
pliance techniques” and “Defensive tactics” respectively.
GAO., Taser Weapons: Use of Tasers by Selected Law
Enforcement Agencies, at 7-10 (May 2005),
http://www.gao.gov/new.items/d05464.pdf. In other words,
these six agencies classified tasers as intermediate levels of
force. (Once a situation has reached the fifth (“Lethal”) level,
officers are permitted to use deadly force in response. Id. at
8.)

II.

Because Officer MacPherson raised an interlocutory appeal
to the district court’s denial of summary judgment on the
basis of qualified immunity, we were bound by the procedural
posture to view the facts in the light most favorable to the
non-moving party (here Bryan), and then to ask “whether the
officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them.” Bryan, 608 F.3d
at 620 (quoting Graham, 490 U.S. at 397). In doing so, we
remained “cognizant of the Supreme Court’s command to
evaluate an officer’s actions ‘from the perspective of a rea-
sonable officer on the scene, rather than with the 20/20 vision
of hindsight.’ ” Id. at 627-28 (quoting Graham, 490 U.S. at
396). We concluded that, even viewing the facts from Officer
MacPherson’s perspective, the “intermediate level of force
employed by Officer MacPherson against Bryan was exces-
18894 BRYAN v. MACPHERSON
sive” in light of the facts that Bryan had complied with Offi-
cer MacPherson’s instructions to pull over based on a minor
seatbelt infraction, never attempted to flee, was clearly
unarmed, and was standing, without advancing in any direc-
tion, next to his vehicle, while Officer MacPherson was stand-
ing “approximately twenty feet away observing Bryan’s
stationary, bizarre tantrum with his X26 drawn and charged.”
Id. at 628. Judge Tallman quibbles with the facts on which we
relied and claims that we incorrectly viewed those facts from
Bryan’s perspective — but the sole example he offers of our
supposed judicial astigmatism, our acceptance of the district
court’s factual determination that “there was no clear indica-
tion” that Bryan heard or understood, is “categorically unre-
viewable on interlocutory appeal.” Eng v. Cooley, 552 F.3d
1062, 1067 (9th Cir. 2009); see also Bryan v. McPherson,
2008 WL 904906, at *3 (S.D. Cal. Apr. 3, 2008) (“While
Plaintiff was apparently ignoring McPherson’s instructions,
there was no clear indication he heard or understood the
instructions . . . .”).

III.

We based our holding that use of an X26 taser or similar
device in dart mode — not, as Judge Tallman misleadingly
suggests, the use of “all tasers” — constitutes an intermediate
use of force on uncontested and uncontroversial descriptions
in the record and in case law describing how tasers are
designed to operate, rather than solely on the injury that
Bryan himself suffered when he fell to the pavement and
smashed his face and teeth. See, e.g., Bryan, 608 F.3d at 620
(citing Lewis v. Downey, 581 F.3d 467, 475 (7th Cir. 2009);
Draper v. Reynolds, 369 F.3d 1270, 1273 n.3 (11th Cir.
2004); Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993)).
Indeed, one of the sources of our information on how the X26
taser functions was the manufacturer itself. See Taser Int’l,
General Faqs, http://www.taser.com/research/Pages/FAQ
General.aspx. Taser International explains that its
 BRYAN v. MACPHERSON 18895
TASER devices utilize compressed nitrogen to proj-
ect two small probes up to various ranges . . . at a
speed of over 160 feet per second. These probes are
connected to the TASER device by insulated wires.
An electrical signal is transmitted through the wires
to where the probes make contact with the body or
clothing, resulting in an immediate loss of the per-
son’s neuromuscular control and the ability to per-
form coordinated action for the duration of the
impulse.

IV.

In concluding that Officer MacPherson used excessive
force when he tased Bryan, we explicitly recognized and
applied both the “settled principle that police officers need not
employ the ‘least intrusive’ degree of force,” Bryan, 608 F.3d
at 627 n.15 (citing Gregory v. County of Maui, 523 F.3d 1103,
1107 (9th Cir. 2008)), and the equally clear rule that “the
presence of feasible alternatives is a factor to include in our
analysis.” Id. at 627; see also, e.g., Smith v. City of Hemet,
394 F.3d 689, 701 (9th Cir. 2005) (en banc); Headwaters For-
est Def. v. County of Humboldt, 240 F.3d 1185, 1205 (9th Cir.
2000), vacated and remanded on other grounds sub nom.
County of Humboldt v. Headwaters Forest Def., 534 U.S. 801
(2001). We see no conflict between the rule that an officer
need not use the least intrusive means in apprehending a sus-
pect and the concept that there are nonetheless circumstances
in which an officer who does not use the least intrusive means
might use a level of force that cannot be justified. Judge Tall-
man’s only concern with the standard we applied is our cite
to our nine-year-old decision in Deorle v. Rutherford, 272
F.3d 1272 (9th Cir. 2001). Deorle in fact remains good law,
in part because the Supreme Court denied certiorari.2 We cited
2
At the time Deorle was filed, a judge of our court sought but failed to
secure rehearing en banc. See Deorle, 272 F.3d at 1274-75. The United
States Supreme Court then denied Butte County Deputy Sheriff Greg
18896 BRYAN v. MACPHERSON
Deorle, along with other opinions, for the obvious principle
that the use of force by law enforcement must be justified by
an appropriate government interest. Judge Tallman specifi-
cally objects to the fact that now-withdrawn versions of our
Bryan opinion quoted language from Deorle and Drummond
with which he disagrees, but the amended opinion no longer
relies upon the language to which he objects. It is puzzling,
to say the least, that Judge Tallman continues to rail against
Bryan for something the opinion does not say.

V.

There is an obvious and critical distinction between con-
cluding (as did one study cited by the dissent) that tasers
cause “mild” (rather than “serious” or “fatal”) injuries on the
one hand and suggesting that tasers cause no injuries on the
other. See, e.g., Bozeman et al., supra, at tbl.5 (finding that
injuries characterized as “mild” occur roughly a quarter of a
time). Most of the “mild” injuries described in this study
“were superficial puncture wounds” from the taser darts, but
the fact that puncture wounds through the skin are classified
as “superficial” rather than as “serious” or “life-threatening”
does not mean that such wounds are insignificant. In fact,
such “superficial” barbed dart injuries have the potential to be
quite significant. See, e.g., GAO, supra at 6-7 (“If the barbs
penetrate the skin, it is impossible to predict how deeply they
will embed . . . . The manufacturer estimated that the barbs
will generally penetrate bare skin no more than half an
inch.”); National Institute of Justice, Study of Deaths Follow-
ing Electro Muscular Disruption: Interim Report, at 3,
http://www.ncjrs.gov/pdffiles1/nij/222981.pdf (June 2008)

Rutherford’s petition for certiorari. Rutherford v. Deorle, 536 U.S. 958
(2002). Our court again voted against rehearing a decision that relied upon
Deorle’s language, Drummond ex rel. Drummond v. City of Anaheim, 343
F.3d 1052 (9th Cir. 2003), and the Supreme Court again denied certiorari.
City of Anaheim v. Drummond ex rel. Drummond, 542 U.S. 918 (2004).
 BRYAN v. MACPHERSON 18897
(“[D]arts may cause puncture wounds or burns. Puncture
wounds to an eye by a barbed dart could lead to a loss in
vision in the affected eye. Head injuries or fractures resulting
from falls due to muscle incapacitation may occur.”). In this
case, Bryan required emergency surgery to have the dart
removed. Moreover, the sudden electrical charge that immo-
bilizes an individual can cause significant injury, especially if
the tasered individual, like Bryan, lands on a hard surface.3
These injuries may even prove fatal, as Taser International’s
own training materials warn: “The TASER conducted energy
weapons cause temporary incapacitation and the inability to
catch yourself as you fall. This incapacitation and the result-
ing fall can be dangerous and even fatal under specific cir-
cumstances. For example, someone hit by the X26 in a high
place could be seriously injured in a fall . . . .” Bryan v. Mac-
Pherson, No. 06-CV-01487 (S.D. Cal. Mar. 12, 2008) (Dkt
83-4, at 3) (emphasis added).

Such injuries, while perhaps “mild” in an abstract, relative
sense, are clearly not insubstantial. Use of a device which can
cause such injuries in the mine run of cases surely rises to the
level of significant, intermediate force.

VI.

Judge Tallman claims that we have mischaracterized the
facts, but it is Judge Tallman who has mischaracterized the
evidence in the record in an attempt to minimize the quantum
of force represented by use of an X26 taser or similar device
in dart mode. For example, Judge Tallman says that “during
training, nearly all Coronado Police Department officers are
tased themselves.” In fact, the record demonstrates clearly
3
The similar use of the taser on Ms. Cavanaugh, “whose feet were on
the front steps of her home,” caused her to go rigid, spin around, and strike
her head on the concrete steps. Cavanaugh, 2010 WL 4332289, at *1. “As
a result of this fall, Ms. Cavanaugh suffered a traumatic brain injury.” Id.
(emphasis added).
18898 BRYAN v. MACPHERSON
that “[i]t’s not a requirement” for Coronado officers to be
tased before being certified — even though the vast majority
in that department reportedly voluntarily were, albeit under
highly-controlled circumstances.

The point is irrelevant in any event. The record shows only
that Coronado police officers could volunteer to be tased by
a taser deployed in drive stun mode while they were being
held upright by two other officers. This is because, in the
words of the Coronado Police Department trainer, “we don’t
want them to fall down and hurt themselves in a training ses-
sion.” This opportunity to submit to stungunning obviously
has nothing to do with the question of whether an X26 taser
in dart mode constitutes an intermediate level of force. More-
over, there is absolutely no evidence in the record that Officer
MacPherson himself was ever tased in stun or dart mode; and,
if there were, it would demonstrate that he was well aware of
the substantial level of force he used on Bryan, as he would
have been familiar with the loss of control (and inability to
remain standing rather than crash to the ground) accompany-
ing an electrical current running through the body.

Judge Tallman similarly misrepresents evidence in the
record regarding the potential for injury the X26 or similar
devices used in dart mode represents to those harpooned and
tased. For example, he cites to Taser’s own Instructor Certifi-
cation Lesson Plan from 2004, which makes the unsupported
assertion that there is a “0% injury rate for the 26 watt
ADVANCED TASER,” for the principle that these devices
are entirely safe and innocuous. Notably, however, this same
document begins with a warning that tasers “should be treated
as serious weapons and should only be deployed in situations
where the alternative would be to use other force measures
which carry similar or higher degrees of risk.” More impor-
tantly, this warning includes an observation about exactly
what constitutes an “injury” that casts serious doubt upon the
usefulness of the “0% injury rate” figure: the “extensive med-
ical evidence,” the document reads, “strongly supports the
 BRYAN v. MACPHERSON 18899
TASER X26 and ADVANCED TASER M26 and M18 will
not cause lasting aftereffects or fatality . . . .” In other words,
in a study in which 1000 volunteers were tased — whether by
tasers in drive-stun mode or in dart mode is not clear — none
was killed or permanently injured. Fair enough — but surely
it is possible for a weapon to cause injury, or even serious
injury, without causing death or permanent injury.

VII.

We explicitly “recognize[d] the important role controlled
electric devices like the Taser X26 can play in law enforce-
ment” to “help protect police officers, bystanders, and sus-
pects alike.” Bryan, 608 F.3d at 622. This recognition,
however, which is shared by Judge Tallman, is entirely con-
sistent with the eminently reasonable principle that the major-
ity of active judges on our court, along with many other
judges and law enforcement personnel, have also recognized:
the X26 taser and similar devices, when used in dart mode,
constitute an “intermediate, significant level of force that
must be justified by the governmental interest involved.”
Bryan, 608 F.3d at 622.

I respectfully concur with denial of rehearing en banc.

TALLMAN, Circuit Judge, with whom Judges CALLAHAN
and N. R. SMITH join, dissenting from the denial of rehear-
ing en banc:

Police officers are allowed to act in reasonable self-
defense. Yet, in Bryan v. MacPherson, we deem unconstitu-
tional the actions of a police officer who did just that. Coro-
nado Police Officer Brian MacPherson was standing alone on
the street when he was confronted by a mostly naked man
who reacted with irrational rage to being directed to stop his
car for a simple seatbelt violation. He shouted “fuck” over
18900 BRYAN v. MACPHERSON
and over, repeatedly punched his steering wheel, ignored the
officer’s commands to remain in his car, shouted gibberish,
pummeled his own thighs, and did not retreat when the officer
yelled at him to get back in his car.

Rather than recognize the serious potential threat to a lone
officer’s safety posed by someone acting this bizarrely, the
panel determines that the officer was unreasonable to think
that he was in any danger. Further, the panel’s sweeping lan-
guage deems the officer’s use of his taser—an effective
means of ensuring compliance that is less likely to cause
injury to officers, suspects, and innocent bystanders than
nearly any other tool at an officer’s disposal—excessive force
as a matter of law. Because the panel’s decision endangers
officers and citizens alike, I dissent from denial of rehearing
en banc.

I

Officer MacPherson’s California Sunday was off to a bad
start. The City of Coronado police officer was assigned the
tedious task of enforcing seatbelt violations early on a Sunday
morning in July 2005. To carry out his task, Officer MacPher-
son stood outside his patrol car in full uniform near a stop
sign at the intersection of Pomona Avenue and Glorietta Bou-
levard to look for violators.

While Officer MacPherson was watching traffic, a tan
Toyota Camry driven by Carl Bryan approached. At the time,
Bryan was wearing only boxer undershorts, tennis shoes, and
socks. Bryan’s sixteen-year-old brother Alexander was seated
in the passenger seat. Officer MacPherson noticed that the
driver was not wearing his seatbelt, so he put out his hand to
signal the car to stop. Bryan stopped at the stop sign in the
lane of traffic. Officer MacPherson approached the passenger
window to speak with him. Looking into the car, Officer Mac-
Pherson noticed that the driver was not wearing a shirt. The
radio was turned up. Bryan sat in the driver’s seat staring
 BRYAN v. MACPHERSON 18901
straight ahead with both hands clutching the steering wheel.
When the officer asked Bryan to turn the radio down, he
turned it off. Officer MacPherson then asked him to pull the
car over to the curb. In response, Bryan began punching the
steering wheel with both fists and started shouting “fuck”
over and over. He was yelling loudly enough that a man play-
ing tennis at a club fifty to seventy-five feet away could hear
him screaming “fuck, fuck, fuck.” While continuing to pound
the steering wheel and shout, Bryan pulled his car ahead and
stopped in the intersection blocking a crosswalk several feet
from the curb.

Although Bryan was compliant with the Coronado officer’s
instructions to this point, Officer MacPherson was concerned
about the odd behavior he was seeing: the driver was acting
in an irrational, violent, angry, and aggressive manner.
Because the officer considered that Bryan might be high on
PCP or another drug, or might be mentally unstable, he
radioed for backup. Help did not arrive in time.

Bryan’s next actions did nothing to dispel Officer Mac-
Pherson’s concerns. Bryan began to open the driver’s side
door. Officer MacPherson, who was fifteen to twenty feet
away, began yelling at him, “Stay in the car, stay in the car,
stay in the car,” and removed his X26 taser from its holster.
Although a jogger forty feet away and the tennis player heard
the officer yelling for him to stay in the car, Bryan continued
to open the door and get out. Officer MacPherson continued
ordering Bryan to get back in the car, but Bryan did not do
so.1
1
Officers conducting a traffic stop can order occupants to get out of the
car. Maryland v. Wilson, 519 U.S. 408, 414-15 (1997); Ruvalcaba v. City
of Los Angeles, 64 F.3d 1323, 1326-27 (9th Cir. 1995). This authority
stems from the conclusion that “[t]he risk of harm to both the police and
the occupants is minimized if the officers routinely exercise unquestioned
command of the situation.” Michigan v. Summers, 452 U.S. 692, 702-03
(1981). It follows that officers can require the occupants to remain in the
car as well; indeed, depending on the circumstances, it may well be safer
for them to do so. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 119
& n.10 (1977) (Stevens, J., dissenting).
18902 BRYAN v. MACPHERSON
Once out of the car, Bryan started yelling gibberish and
pounding his thighs with both fists. He was between the open
door and the car, still within arm’s reach of the passenger
compartment. Fearing for his safety, Officer MacPherson
deployed his taser, hitting Bryan with a single dart in the left
arm. Bryan fell to the ground, breaking four teeth and cutting
and bruising his face.

II

An officer’s use of excessive force to effect an arrest is a
violation of a person’s Fourth Amendment right to be free
from unreasonable searches and seizures. Graham v. Connor,
490 U.S. 386, 395 (1989). A citizen’s claim that a law
enforcement officer used excessive force is analyzed under an
“objective reasonableness” standard. Id. at 395, 399. Deter-
mining whether the force used is reasonable requires a balanc-
ing of “the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the counter-
vailing governmental interests at stake.” Id. at 396 (internal
quotation marks and citations omitted). Further, the “standard
of reasonableness at the moment applies.” Id. The reasonable-
ness of the use of force is judged from the perspective of a
reasonable officer on the scene—not from the perspective of
the person seized or of a court reviewing the situation with
20/20 hindsight. Id.

Even if a law enforcement officer uses excessive force in
violation of a citizen’s Fourth Amendment rights, the officer
will still be entitled to qualified immunity unless clearly
established law provides that the conduct violates the Fourth
Amendment. An officer is shielded from personal liability
when he reasonably believes his conduct in the situation is
lawful. Saucier v. Katz, 533 U.S. 194, 201-02 (2001), receded
from on other grounds by Pearson v. Callahan, 129 S. Ct.
808, 817-21 (2009) (holding that the “rigid order of battle”
inquiry mandated by Saucier is no longer required).
 BRYAN v. MACPHERSON 18903
The panel’s revised opinion correctly determines that the
law on whether an officer’s use of a taser to control an aggres-
sive and noncompliant subject violated the subject’s Fourth
Amendment rights was not clearly established, and thus holds
that Officer MacPherson is entitled to qualified immunity.
Having reached that conclusion, the panel’s work should have
been done. Instead, the panel goes on to examine whether use
of the taser constitutes unconstitutional excessive force. In
concluding that it does, the Bryan panel mischaracterizes the
facts, relies on bad law, and uses contested facts to set future
use-of-force policy for all law enforcement officers in the
Ninth Circuit.

A

The Bryan panel’s first error is in its rendition of the facts.
As in any motion for summary judgment, a court considering
an officer’s qualified immunity must take the facts in the light
most favorable to the nonmoving party. Saucier, 533 U.S. at
201. In assessing whether an officer is entitled to qualified
immunity, however, the court must view those facts from the
objective perspective of a reasonable officer on the scene.
Graham, 490 U.S. at 396. The panel fails to view the facts
from this perspective; instead, it relates all of the facts from
Bryan’s perspective. This is error.

For instance, the panel explains that Bryan didn’t hear the
officer’s commands to stay in or get back into the car and that
Bryan hit his steering wheel and yelled obscenities because he
was mad at himself for being stopped by police twice in the
same morning. While this may be true—and for purposes of
summary judgment we assume that it is—it is beside the
point. Officer MacPherson didn’t know Bryan’s motivations.
All Officer MacPherson knew was that Bryan did not comply
with lawful commands and was exhibiting truly bizarre
behavior. It is what Officer MacPherson knew, not Bryan’s
innocent, post-filing explanation favored by the panel, that
must be considered in assessing objective reasonableness.
18904 BRYAN v. MACPHERSON
Because the panel relays the facts from Bryan’s perspec-
tive, rather than the officer’s, it was no doubt easy to conclude
that Bryan did not pose any threat to the officer. Looked at
from a reasonable officer’s perspective, however—as Graham
requires—Bryan’s behavior was volatile, irrational, and
alarming. Any reasonable officer would be concerned for his
safety.

B

The Bryan panel also errs by applying the wrong standard
for measuring the appropriateness of the force used. In its first
two opinions, it determined that all use of tasers “constitute[s]
an intermediate, significant level of force that must be justi-
fied by a strong government interest [that] compels the
employment of such force.” Bryan v. MacPherson, 608 F.3d
614, 622 (9th Cir. 2010) (quoting Drummond ex rel. Drum-
mond v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir.
2003), and Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th
Cir. 2001)) (first alteration added and internal quotation
marks omitted); see also Bryan v. MacPherson, 590 F.3d 767,
774-75 (9th Cir. 2009).2 But the question is not whether the
governmental interests compel the employment of such force;
it is whether the governmental interests permit the employ-
ment of such force.

In evaluating the governmental interests at stake and the
reasonableness of the force used in light of those interests, a
reviewing court must examine the totality of the circum-
stances, “including the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the offi-
cers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight,” among other factors.
2
The previous two opinions in this case are being superseded by a third
opinion, filed simultaneously with the order denying rehearing en banc
and this dissent. The minor modification made in the panel’s third opinion
is discussed herein.
 BRYAN v. MACPHERSON 18905
Graham, 490 U.S. at 396. The right to make an arrest carries
with it the right to employ some level of force to effect it. Id.
A court must consider that the officer may be reacting to a
dynamic and evolving situation, requiring the officer to make
split-second decisions. Id. at 396-97. Accordingly, an officer
need not have perfect judgment, nor must he resort only to the
least amount of force necessary to accomplish legitimate law
enforcement objectives.

Rather, a range of force may be reasonable under the cir-
cumstances. See, e.g., Graham, 490 U.S. at 396 (“Not every
push or shove, even if it may later seem unnecessary in the
peace of a judge’s chambers, violates the Fourth Amend-
ment.” (quotation marks and citation omitted)); see also For-
rester v. City of San Diego, 25 F.3d 804, 807-08 (9th Cir.
1994) (“Police officers, however, are not required to use the
least intrusive degree of force possible. Rather . . . the inquiry
is whether the force that was used to effect a particular seizure
was reasonable, viewing the facts from the perspective of a
reasonable officer on the scene. Whether officers hypotheti-
cally could have used less painful, less injurious, or more
effective force in executing an arrest is simply not the issue.”
(citations omitted)). The Supreme Court reiterated this stan-
dard of analysis in Saucier, 533 U.S. at 204-07.

Despite this clear, consistent, and controlling Supreme
Court precedent, a single judge of our court, joined only by
a senior judge of a different circuit sitting by designation,
charted a new path in 2001. Without citing a single case, the
court in Deorle rewrote the standard: “[T]he degree of force
used by [law enforcement] is permissible only when a strong
governmental interest compels the employment of such
force.” 272 F.3d at 1280. To justify this conclusion, the
Deorle panel quotes Graham out of context. Specifically, the
Deorle majority wrote that the Graham factors “are simply a
means by which to determine objectively ‘the amount of force
that is necessary in a particular situation.’ ” Id. (quoting Gra-
ham, 490 U.S. at 396-97). The full sentence from Graham
18906 BRYAN v. MACPHERSON
actually reads: “The calculus of reasonableness must embody
allowance for the fact that police officers are often forced to
make split-second judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation.” Graham, 490
U.S. at 396-97. It is clear that Graham envisions a flexible
standard, appropriate to “reasonableness”; Deorle nonetheless
requires the police to use only the minimum force necessary.
That is not the law the Supreme Court has articulated as the
standard applicable to police officers as they make these time-
pressured and difficult decisions. See Saucier, 533 U.S. at 205
(“If an officer reasonably, but mistakenly, believed that a sus-
pect was likely to fight back, for instance, the officer would
be justified in using more force than in fact was needed.”).

In apparent recognition of the fact that the Deorle standard
is faulty, the panel has again amended its opinion—a single
sentence of its opinion—this time to delete the above-quoted
language and to state instead that tasers “constitute an inter-
mediate, significant level of force that must be justified by the
governmental interest involved.” Maj. Op. at 18918. The
panel’s amendment does not go far enough. The mere deletion
of a single reference to Deorle does not overrule it; we must
go en banc to do so. Moreover, the panel’s repeated citations
to Deorle throughout the rest of the opinion suggest that it
considers Deorle to present a more preferable standard than
the one the Supreme Court has chosen. Indeed, by amending
its opinion to more accurately reflect the correct standard
without actually applying it, the panel attempts to disguise the
fact that it has applied Deorle yet again. In so doing, it has
ensured that the judgment of the officer on the street, who is
not afforded the luxury of time, will nearly always be sup-
planted by the more ponderous judgment of this Court.

C

The Bryan panel’s third mistake is to use a contested record
to make sweeping findings about tasers and the harms that
 BRYAN v. MACPHERSON 18907
they may cause. While assuming the facts in the light most
favorable to Bryan is the appropriate standard for summary
judgment, it is not the appropriate platform for severely limit-
ing the use of tasers by law enforcement officers throughout
the Ninth Circuit.

A review of the record demonstrates that tasers are gener-
ally safe. The record—which included Officer MacPherson’s
testimony about his own experience with tasers, testimony
from the Coronado Police Department’s taser expert, materi-
als from the taser’s manufacturer, and a report from the Inter-
national Association of Chiefs of Police National Law
Enforcement Policy Center—unequivocally established that
the application of a taser to an individual is medically safe
and unlikely to cause injury.

For instance, during training nearly all Coronado Police
Department officers are tased themselves. The same cannot be
said for some of the other compliance techniques at law
enforcement’s disposal, such as firearms or “flash bang”
devices used to disorient barricaded suspects. Further, the evi-
dence in the record showed that human volunteer studies con-
firmed a zero percent injury rate for the taser and similarly
low rates of injury in field studies. In fact, the record showed
that “the relative injury rate to both officers and subjects is
very low” and “much lower than for blunt impact techniques”
like batons and steel flashlights. As a result, most police agen-
cies rate the taser as involving equivalent or even less force
than pepper spray because it results in “fewer injuries to both
officers and suspects, no aftereffects, [a] shorter period of dis-
comfort[,] and it is target specific.”3
3
More recent research corroborates the studies cited in the record. For
instance, a comprehensive study was conducted at Wake Forest University
School of Medicine, and examined all uses of tasers against criminal sus-
pects in six law enforcement agencies over 36 months, which involved
1,201 uses. That study concluded: “Mild or no injuries were observed after
[taser] use in 1,198 subjects (99.75% . . . .). Of mild injuries, 83% were
18908 BRYAN v. MACPHERSON
Rather than simply finding Officer MacPherson entitled to
qualified immunity, the panel proceeds on a highly contested
factual record and finds that all tasers constitute a significant
amount of force. It reaches this conclusion based on the injury
Bryan alleged he suffered when he fell, as well as limited
cases from other circuits, including the Seventh Circuit’s
speculation that “one need not have personally endured a taser
jolt to know the pain that must accompany it.” Maj. Op. at
18915 (quoting Lewis v. Downey, 581 F.3d 467, 475 (7th Cir.
2009)).

In the concurrence filed contemporaneously with the
amended opinion and order denying rehearing en banc, Judge
Wardlaw bolsters her argument by misrepresenting two of our
cases scheduled to be reheard en banc: Mattos v. Agarano,
590 F.3d 1082 (9th Cir. 2010), reh’g en banc granted by ___
F.3d ___, 2010 WL 3931122 (9th Cir. Oct. 4, 2010), and
Brooks v. City of Seattle, 599 F.3d 1018 (9th Cir. 2010), reh’g
en banc granted by ___ F.3d ___, 2010 WL 3896202 (9th Cir.
Sep. 30, 2010).4 Our opinion in Brooks did not analyze the use
of tasers in dart mode. Quite to the contrary, we distinguished
the use of a taser in stun mode from the use of a taser in dart
mode and stated that using a taser in stun mode “was more on
par with pain compliance techniques, which this court has
found involve a ‘less significant’ intrusion upon an individu-
al’s personal security than most claims of force.” 599 F.3d at

superficial puncture wounds from [taser] probes. . . . Two subjects died in
police custody; medical examiners did not find [taser] use to be causal or
contributory in either case.” Bozeman, William, et al., Safety and Injury
Profile of Conducted Electrical Weapons Used by Law Enforcement Offi-
cers Against Criminal Suspects, Annals of Emergency Medicine (2009).
4
Any reliance on these decisions is meaningless at this juncture because
the prior opinions are no longer binding now that the court has voted to
rehear them en banc. It would be futile to predict the outcome of the en
banc proceedings in Brooks and Mattos, and I do not attempt to do so.
Rather, my disagreement stems from the Bryan panel’s unnecessary fac-
tual findings.
 BRYAN v. MACPHERSON 18909
1027-28. Because the officers in Brooks used the taser in stun
mode, the quantum of force used was “less than the interme-
diate,” id. at 1028, and the discussion of Bryan and other cir-
cuit precedent was therefore not necessary to the resolution of
the case.

Likewise, there is a fundamental difference between our
statement in Mattos that using a taser “was a serious intrusion
into the core of the interests protected by the Fourth Amend-
ment,” 590 F.3d at 1087, and holding that all taser use equates
to an intermediate level of force. Any use of force may qual-
ify as a serious intrusion on Fourth Amendment interests. But
that does not ipso facto mean that an intermediate level of
force was used. It is improper and inaccurate to state that we
implied that tasers are an intermediate level of force when, in
fact, we merely stated that tasers intrude on Fourth Amend-
ment protections. We did not make such a factual finding in
Mattos, arguably because of the conflicting and undeveloped
record presented to us on appeal. Id. The panel would have
been well-advised to take a similar approach in Bryan.

It is one thing to hold that, if proved, Bryan’s allegations
could support a jury finding of excessive force. It is another
thing entirely for an appellate court reviewing the invocation
of qualified immunity to make its own factual finding—based
solely on inferences that must be drawn in favor of the injured
party and material outside the record—that tasers represent an
intermediate and substantial use of force. It is beyond the pale
to then apply that judicial fact-finding to prescribe any offi-
cer’s use of a taser anywhere in the Ninth Circuit.

III

Courts are ill-equipped to tell law enforcement officers how
they must respond when faced with unpredictable and evolv-
ing tactical situations. See Fisher v. City of San Jose, 558 F.3d
1069, 1080 (9th Cir. 2009) (en banc) (explaining that telling
the police confronted with a developing situation involving an
18910 BRYAN v. MACPHERSON
intoxicated and heavily armed tenant “what tactics are permis-
sible” is not “a reasonable role for a judicial officer”). Nor
should police officers be required to put life and limb at risk
to avoid liability for their conduct when they are reacting to
uncertain and rapidly unfolding circumstances, particularly
involving mentally unstable subjects who may well attack a
lone officer without warning.

Rather than issuing blanket directives based on the facts of
a single case, which were taken in the light most favorable to
the plaintiff, we must adhere to well-developed Supreme
Court law that requires us to analyze each case individually,
looking at the totality of the circumstances from the perspec-
tive of a reasonable officer on the street. Graham, 490 U.S.
at 396. Then, we must assess whether a jury could determine
that the choice the officer made in the heat of the moment fits
within a range of reasonable actions. Id. at 396-97. The
panel’s decision repeatedly applies the wrong standards to
reach its desired result—a result that endangers the good faith
efforts of law enforcement officers to protect themselves, the
community they serve, and the subjects they encounter.
Accordingly, I dissent from the denial of rehearing en banc.

OPINION

WARDLAW, Circuit Judge:

Early one morning in the summer of 2005, Officer Brian
MacPherson deployed his taser against Carl Bryan during a
traffic stop for a seatbelt infraction. Bryan filed this action
under 42 U.S.C. § 1983, asserting excessive force in violation
of the Fourth Amendment. Officer MacPherson appeals the
denial of his motion for summary judgment based on quali-
fied immunity. We affirm the district court in part because,
viewing the circumstances in the light most favorable to
Bryan, Officer MacPherson’s use of the taser was unconstitu-
 BRYAN v. MACPHERSON 18911
tionally excessive. However, we reverse in part because the
violation of Bryan’s constitutional rights was not clearly
established at the time that Officer MacPherson fired his taser
at Bryan on July 24, 2005.

I. FACTUAL AND PROCEDURAL BACKGROUND

Carl Bryan’s California Sunday was off to a bad start. The
twenty-one year old, having stayed the night with his younger
brother and some cousins in Camarillo, which is in Ventura
County, planned to drive his brother back to his parents’
home in Coronado, which is in San Diego County. However,
Bryan’s cousin’s girlfriend had accidently taken Bryan’s keys
to Los Angeles the previous day. Wearing the t-shirt and
boxer shorts in which he had slept, Bryan rose early, traveled
east with his cousins to Los Angeles, picked up his keys and
returned to Camarillo to get his car and brother. He then
began driving south towards his parents’ home. While travel-
ing on the 405 highway, Bryan and his brother were stopped
by a California Highway Patrolman who issued Bryan a
speeding ticket. This upset him greatly. He began crying and
moping, ultimately removing his t-shirt to wipe his face. Con-
tinuing south without further incident, the two finally crossed
the Coronado Bridge at about seven-thirty in the morning.

At that point, an already bad morning for Bryan took a turn
for the worse. Bryan was stopped at an intersection when
Officer MacPherson, who was stationed there to enforce seat-
belt regulations, stepped in front of his car and signaled to
Bryan that he was not to proceed. Bryan immediately realized
that he had mistakenly failed to buckle his seatbelt after his
earlier encounter with the police. Officer MacPherson
approached the passenger window and asked Bryan whether
he knew why he had been stopped. Bryan, knowing full well
why and becoming increasingly angry at himself, simply
stared straight ahead. Officer MacPherson requested that
Bryan turn down his radio and pull over to the curb. Bryan
complied with both requests, but as he pulled his car to the
18912 BRYAN v. MACPHERSON
curb, angry with himself over the prospects of another cita-
tion, he hit his steering wheel and yelled expletives to himself.
Having pulled his car over and placed it in park, Bryan
stepped out of his car.

There is no dispute that Bryan was agitated, standing out-
side his car, yelling gibberish and hitting his thighs, clad only
in his boxer shorts and tennis shoes. It is also undisputed that
Bryan did not verbally threaten Officer MacPherson and,
according to Officer MacPherson, was standing twenty to
twenty-five feet away and not attempting to flee. Officer Mac-
Pherson testified that he told Bryan to remain in the car, while
Bryan testified that he did not hear Officer MacPherson tell
him to do so. The one material dispute concerns whether
Bryan made any movement toward the officer. Officer Mac-
Pherson testified that Bryan took “one step” toward him, but
Bryan says he did not take any step, and the physical evidence
indicates that Bryan was actually facing away from Officer
MacPherson. Without giving any warning, Officer MacPher-
son shot Bryan with his taser gun. One of the taser probes
embedded in the side of Bryan’s upper left arm. The electrical
current immobilized him whereupon he fell face first into the
ground, fracturing four teeth and suffering facial contusions.
Bryan’s morning ended with his arrest1 and yet another drive
—this time by ambulance and to a hospital for treatment.

Bryan sued Officer MacPherson and the Coronado Police
Department, its police chief, and the City of Coronado for
excessive force in violation of 42 U.S.C. § 1983, assault and
battery, intentional infliction of emotional distress, a violation
of California Civil Code § 52.1, as well as failure to train and
related causes of action. On summary judgment, the district
court granted relief to the City of Coronado and Coronado
1
Bryan was charged with resisting and opposing an officer in the perfor-
mance of his duties in violation of California Penal Code § 148. Bryan
was tried on this violation, but following a hung jury, the state dismissed
the charges.
 BRYAN v. MACPHERSON 18913
Police Department, but determined that Officer MacPherson
was not entitled to qualified immunity at this stage of the pro-
ceedings. The court concluded that a reasonable jury could
find that Bryan “presented no immediate danger to [Officer
MacPherson] and no use of force was necessary.” In particu-
lar, it found that a reasonable jury could find that Bryan was
located between fifteen to twenty-five feet from Officer Mac-
Pherson and was not facing him or advancing toward him.
The court also found that a reasonable officer would have
known that the use of the taser would cause pain and, as
Bryan was standing on asphalt, that a resulting fall could
cause injury. Under the circumstances, the district court con-
cluded it would have been clear to a reasonable officer that
shooting Bryan with the taser was unlawful.

II. STANDARD OF REVIEW

The district court’s denial of qualified immunity is
reviewed de novo. Blanford v. Sacramento County, 406 F.3d
1110, 1114 (9th Cir. 2005). Where disputed issues of material
fact exist, we assume the version of the material facts asserted
by the non-moving party. See KRL v. Estate of Moore, 512
F.3d 1184, 1188-89 (9th Cir. 2008). All reasonable inferences
must be drawn in favor of the non-moving party. John v. City
of El Monte, 515 F.3d 936, 941 (9th Cir. 2008).

III. DISCUSSION

[1] In evaluating the denial of a police officer’s assertion
of qualified immunity, we ask two distinct questions. First, we
must determine whether, taking the facts in the light most
favorable to the non-moving party, the officer’s conduct vio-
lated a constitutional right; and second, if a violation
occurred, whether the right was “clearly established in light
of the specific context of the case.” al-Kidd v. Ashcroft, 580
F.3d 949, 964 (9th Cir. 2009) (citing Saucier v. Katz, 533 U.S.
194, 201 (2001)). We may “exercise [our] sound discretion in
deciding which of the two prongs of the qualified immunity
18914 BRYAN v. MACPHERSON
analysis should be addressed first.” Pearson v. Callahan, 129
S. Ct. 808, 818 (2009).

A. Did Officer MacPherson Employ Constitutionally
Excessive Force?

[2] Allegations of excessive force are examined under the
Fourth Amendment’s prohibition on unreasonable seizures.
Graham v. Connor, 490 U.S. 386, 394 (1989); Deorle v. Ruth-
erford, 272 F.3d 1272, 1279 (9th Cir. 2001). We ask “whether
the officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them.” Graham, 490 U.S.
at 397. We must balance “ ‘the nature and quality of the intru-
sion on the individual’s Fourth Amendment interests’ against
the countervailing governmental interests at stake.” Id. at 396
(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)); see also
Scott v. Harris, 550 U.S. 372, 383 (2007). Stated another way,
we must “balance the amount of force applied against the
need for that force.” Meredith v. Erath, 342 F.3d 1057, 1061
(9th Cir. 2003).

1. Nature and Quality of the Intrusion

We begin by analyzing the quantum of force—the type and
amount of force—that Officer MacPherson used against Bryan.2
See Deorle, 272 F.3d at 1279; Chew v. Gates, 27 F.3d 1432,
1440 (9th Cir. 1994). Officer MacPherson shot Bryan with a
Taser X26 provided by the Coronado Police Department. The
X26 uses compressed nitrogen to propel a pair of “probes”—
aluminum darts tipped with stainless steel barbs connected to
the X26 by insulated wires—toward the target at a rate of
over 160 feet per second. Upon striking a person,3 the X26
2
Although the taser used by Officer MacPherson was the X26 model,
our holding applies to the use of all controlled electric devices that cause
similar physiological effects.
3
According to the manufacturer, the probes do not need to penetrate the
skin of the intended target to result in a successful connection. The probes
are capable of delivering their electrical charge through up to two inches
of clothing. Here, Bryan was shirtless when confronted by Officer Mac-
Pherson. As a result, one probe penetrated his skin.
 BRYAN v. MACPHERSON 18915
delivers a 1200 volt, low ampere electrical charge through the
wires and probes and into his muscles.4 The impact is as pow-
erful as it is swift. The electrical impulse instantly overrides
the victim’s central nervous system, paralyzing the muscles
throughout the body, rendering the target limp and helpless.
See Draper v. Reynolds, 369 F.3d 1270, 1273 n.3 (11th Cir.
2004); Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993).
The tasered person also experiences an excruciating pain that
radiates throughout the body. See Lewis v. Downey, 581 F.3d
467, 475 (7th Cir. 2009) (“[O]ne need not have personally
endured a taser jolt to know the pain that must accompany it
. . . .”); Hickey, 12 F.3d at 757.

[3] Bryan vividly testified to experiencing both paralysis
and intense pain throughout his body when he was tasered. In
addition, Officer MacPherson’s use of the X26 physically
injured Bryan. As a result of the taser, Bryan lost muscular
control and fell, uncontrolled, face first into the pavement.
This fall shattered four of his front teeth and caused facial
abrasions and swelling. Additionally, a barbed probe lodged
in his flesh, requiring hospitalization so that a doctor could
remove the probe with a scalpel. A reasonable police officer
with Officer MacPherson’s training on the X26 would have
foreseen these physical injuries when confronting a shirtless
individual standing on asphalt. We have held that force can be
unreasonable even without physical blows or injuries. See,
e.g., Headwaters Forest Def. v. County of Humboldt, 240 F.3d
1185, 1199 (9th Cir. 2000), vacated and remanded on other
4
Tasers have been described as delivering a 50,000 volt charge. See,
e.g., Brown v. City of Golden Valley, 574 F.3d 491, 495 n.3 (8th Cir.
2009). While technically accurate, this does not entirely describe the elec-
trical impulse encountered by a taser victim. According to the manufac-
turer, this 50,000 volt charge is needed to ensure that the electrical current
can “jump” through the air or victim’s clothing, thus completing a circuit.
The manufacturer maintains, however, that the full 50,000 volts do not
enter the victim’s body; rather, it represents that the X26 delivers a peak
voltage of 1,200 volts into the body.
18916 BRYAN v. MACPHERSON
grounds 534 U.S. 801 (2001);5 Tekle v. United States, 511
F.3d 839, 845 (9th Cir. 2007). The presence of non-minor
physical injuries like those suffered by Bryan, however, is
certainly relevant in evaluating the degree of the Fourth
Amendment intrusion.

[4] We, along with our sister circuits, have held that tasers
and stun guns fall into the category of non-lethal force.6 See,
e.g., Lewis, 581 F.3d at 476; United States v. Fore, 507 F.3d
412, 413 (6th Cir. 2007); San Jose Charter of Hells Angels
Motorcycle Club v. City of San Jose, 402 F.3d 962, 969 n.8
(9th Cir. 2005).7 Non-lethal, however, is not synonymous with
non-excessive; all force—lethal and non-lethal—must be jus-
tified by the need for the specific level of force employed.
Graham, 490 U.S. at 395; see also Deorle, 272 F.3d at 1285
(“Less than deadly force, like deadly force, may not be used
without sufficient reason; rather, it is subject to the Graham
balancing test.”). Nor is “non-lethal” a monolithic category of
force. A blast of pepper spray and blows from a baton are not
necessarily constitutionally equivalent levels of force simply
because both are classified as non-lethal. Rather than relying
on broad characterizations, we must evaluate the nature of the
specific force employed in a specific factual situation. See
Chew, 27 F.3d at 1441 (stating that the Graham factors “are
not to be considered in a vacuum but only in relation to the
amount of force used to effect a particular seizure.”).
5
On remand from the Supreme Court in light of its then-recent opinion
in Saucier, the Headwaters panel reaffirmed its earlier excessive force
analysis. See Headwaters Forest Def. v. County of Humboldt, 276 F.3d
1125 (9th Cir. 2002).
6
“Lethal force” is force that creates a substantial risk of death or serious
bodily injury. See Smith v. City of Hemet, 394 F.3d 689, 705-07 (9th Cir.
2005) (en banc).
7
We recognize, however, that like any generally non-lethal force, the
taser is capable of being employed in a manner to cause the victim’s death.
See, e.g., Oliver v. Fiorino, 586 F.3d 898, 906 (11th Cir. 2009).
 BRYAN v. MACPHERSON 18917
The physiological effects, the high levels of pain, and fore-
seeable risk of physical injury lead us to conclude that the
X26 and similar devices are a greater intrusion than other
non-lethal methods of force we have confronted. In Headwa-
ters, we held that a jury could conclude that pepper spray was
more than a “minimal intrusion” as it caused “intense pain
. . . , an involuntary closing of the eyes, a gagging reflex, and
temporary paralysis of the larynx.” 240 F.3d at 1200. We
rejected the district court’s characterization of pepper spray’s
intrusiveness as “merely the infliction of transient pain with-
out significant risk of physical injury.” Id. at 1199. We simi-
larly reject any contention that, because the taser results only
in the “temporary” infliction of pain, it constitutes a non-
intrusive level of force. The pain is intense, is felt throughout
the body, and is administered by effectively commandeering
the victim’s muscles and nerves. Beyond the experience of
pain, tasers result in “immobilization, disorientation, loss of
balance, and weakness,” even after the electrical current has
ended. Matta-Ballesteros v. Henman, 896 F.2d 255, 256 n.2
(7th Cir. 1990); see also Beaver v. City of Federal Way, 507
F. Supp. 2d 1137, 1144 (W.D. Wash. 2007) (“[A]fter being
tased, a suspect may be dazed, disoriented, and experience
vertigo.”). Moreover, tasering a person may result in serious
injuries when intense pain and loss of muscle control cause a
sudden and uncontrolled fall.

[5] The X26 thus intrudes upon the victim’s physiological
functions and physical integrity in a way that other non-lethal
uses of force do not. While pepper spray causes an intense
pain and acts upon the target’s physiology, the effects of the
X26 are not limited to the target’s eyes or respiratory system.
Unlike the police “nonchakus” we evaluated in Forrester v.
City of San Diego, 25 F.3d 804 (9th Cir. 1994), the pain deliv-
ered by the X26 is far more intense and is not localized, exter-
nal, gradual, or within the victim’s control. Id. at 807, 805 n.5.
In light of these facts, we agree with the Fourth and Eighth
Circuit’s characterization of a taser shot as a “painful and
frightening blow.” Orem v. Rephann, 523 F.3d 442, 448 (4th
18918 BRYAN v. MACPHERSON
Cir. 2008) (quoting Hickey, 12 F.3d at 757). We therefore
conclude that tasers like the X26 constitute an “intermediate
or medium, though not insignificant, quantum of force,”
Sanders v. City of Fresno, 551 F. Supp. 2d 1149, 1168 (E.D.
Cal. 2008); Beaver, 507 F. Supp. 2d at 1144 (“[T]he Court
first finds that the use of a Taser constituted significant
force.”).

[6] We recognize the important role controlled electric
devices like the Taser X26 can play in law enforcement. The
ability to defuse a dangerous situation from a distance can
obviate the need for more severe, or even deadly, force and
thus can help protect police officers, bystanders, and suspects
alike. We hold only that the X26 and similar devices when
used in dart-mode constitute an intermediate, significant level
of force that must be justified by the governmental interest
involved.

2. Governmental Interest in the Use of Force

[7] Under Graham v. Connor, we evaluate the govern-
ment’s interest in the use of force by examining three core
factors, “the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or oth-
ers, and whether he is actively resisting arrest or attempting
to evade arrest by flight.” 490 U.S. at 396; see also Deorle,
272 F.3d at 1280. These factors, however, are not exclusive.
Rather, we examine the totality of the circumstances and con-
sider “whatever specific factors may be appropriate in a par-
ticular case, whether or not listed in Graham.” Franklin v.
Foxworth, 31 F.3d 873, 876 (9th Cir. 1994). This analysis
allows us to “determine objectively ‘the amount of force that
is necessary in a particular situation.’ ” Deorle, 272 F.3d at
1280 (quoting Graham, 490 U.S. at 396-97). Viewing the
facts in the light most favorable to Bryan, the totality of the
circumstances here did not justify the deployment of the Taser
X26.
 BRYAN v. MACPHERSON 18919
[8] The “most important” factor under Graham is whether
the suspect posed an “immediate threat to the safety of the
officers or others.” Smith v. City of Hemet, 394 F.3d 689, 702
(9th Cir. 2005) (en banc) (quoting Chew, 27 F.3d at 1441). “A
simple statement by an officer that he fears for his safety or
the safety others is not enough; there must be objective factors
to justify such a concern.” Deorle, 272 F.3d at 1281. The dis-
trict court correctly concluded that Bryan’s volatile, erratic
conduct could lead an officer to be wary. While Bryan’s
behavior created something of an unusual situation, this does
not, by itself, justify the use of significant force. “A desire to
resolve quickly a potentially dangerous situation is not the
type of governmental interest that, standing alone, justifies the
use of force that may cause serious injury.” Id. Rather, the
objective facts must indicate that the suspect poses an imme-
diate threat to the officer or a member of the public.

[9] We agree with the district court that Bryan did not pose
an immediate threat to Officer MacPherson or bystanders
despite his unusual behavior. It is undisputed that Bryan was
unarmed, and, as Bryan was only dressed in tennis shoes and
boxer shorts, it should have been apparent that he was
unarmed. Cf. id. at 1281 (“Deorle was wearing no shirt or
shoes, only a pair of cut-off jeans shorts. There was nowhere
for him to secrete any weapons.”). Although Bryan had
shouted expletives to himself while pulling his car over and
had taken to shouting gibberish, and more expletives, outside
his car, at no point did he level a physical or verbal threat
against Officer MacPherson. See Smith, 394 F.3d at 702-03
(recognizing that although the victim was shouting expletives,
there was no threat leveled against the officer). Bryan was
standing, without advancing, fifteen to twenty-five feet away
from Officer MacPherson between the door and body of the
car. We reject Officer MacPherson’s contention that Bryan
constituted a threat by taking a step in Officer MacPherson’s
direction. First, when explicitly asked if he “[took] a step out
of the car” or a “step out away from the car,” Bryan testified
“no.” There is, therefore, a genuine issue of fact on this point,
18920 BRYAN v. MACPHERSON
one that, on this procedural posture, we must resolve in
Bryan’s favor and conclude that Bryan did not advance
towards the officer.8 Second, even if Bryan had taken a single
step toward Officer MacPherson, this would not have ren-
dered him an immediate threat justifying an intermediate level
of force, as he still would have been roughly nineteen to
twenty-four feet away from Officer MacPherson, by the offi-
cer’s own estimate.

[10] Not only was Bryan standing, unarmed, at a distance
of fifteen to twenty-five feet, but the physical evidence dem-
onstrates that Bryan was not even facing Officer MacPherson
when he was shot: One of the taser probes lodged in the side
of Bryan’s arm, rather than in his chest, and the location of
the blood on the pavement indicates that he fell away from the
officer, rather than towards him.9 An unarmed, stationary
individual, facing away from an officer at a distance of fifteen
to twenty-five feet is far from an “immediate threat” to that
officer. Nor was Bryan’s erratic, but nonviolent, behavior a
potential threat to anyone else, as there is no indication that
there were pedestrians nearby or traffic on the street at the
time of the incident.10 Finally, while confronting Bryan, Offi-
8
Counsel for Officer MacPherson argued that there is no genuine issue
regarding whether Bryan took a step towards Officer MacPherson on the
basis of Bryan’s response to the question of “Did you move your feet in
any way?” Bryan answered, “I don’t think so.” There are, however, any
number of ways one can move one’s feet without taking a “step.” Because
Bryan specifically denied taking a step when expressly asked, we find a
genuine issue exists as to this fact.
9
Officer MacPherson’s deposition testimony only bolsters this conclu-
sion. He testified that Bryan fell “faced forward” onto the pavement while
Bryan similarly testified that he fell straight forward.
10
Officer MacPherson testified in his deposition that the intersection
where he tasered Bryan does not have a lot of traffic on it early on Sunday
mornings and that he did not remember the presence of any traffic on the
specific morning in question. Other than Bryan, his younger brother, and
Officer MacPherson, the record indicates that the only individuals near the
scene were an individual playing tennis nearby and a jogger located across
the street. Their declarations indicate that they were fifty to seventy-five
feet and forty feet away, respectively.
 BRYAN v. MACPHERSON 18921
cer MacPherson had unholstered and charged his X26, plac-
ing him in a position to respond immediately to any change
in the circumstances. The circumstances here show that Offi-
cer MacPherson was confronted by, at most, a disturbed and
upset young man, not an immediately threatening one.

Officer MacPherson relies heavily on the Eleventh Circuit
opinion in Draper v. Reynolds, 369 F.3d 1270 (11th Cir.
2004), which addressed the use of a taser during the arrest of
an aggressive, argumentative individual. Although we do not
adopt Draper as the law of this circuit, the present case is
clearly distinguishable from the one before the Eleventh Cir-
cuit. Unlike Bryan, who was yelling gibberish and gave no
sign of hearing or understanding Officer MacPherson’s
orders, it was undisputed in Draper that Draper heard and
understood the officer’s commands, and not only failed to
comply, but engaged the officer in an increasingly heated
argument. Id. at 1273. Four times the officer asked Draper to
retrieve paperwork from the cab of his truck and four times
Draper heard the officer, turned toward the truck to comply,
but then turned around, walked back toward the officer and
loudly accused the officer of “harassing” and “disrespecting”
him, displaying a growing belligerence. Id. It was not until the
fifth time that the officer requested the paperwork and Draper
refused to comply, yelled at the officer, and paced toward him
in agitation that the officer resorted to the taser. Id. The Elev-
enth Circuit determined that a verbal arrest command (when
Draper had refused to comply with the first five commands)
accompanied by an attempt to physically handcuff Draper “in
these particular circumstances, may well have or would likely
have escalated a tense and difficult situation into a serious
physical struggle, in which either Draper or [the officer]
would be seriously hurt.” Id. at 1278.

Bryan never addressed, let alone argued with, Officer Mac-
Pherson once he left his car. In addition, whereas Bryan
remained stationary at a distance of approximately twenty
feet, or at most took a single step forward, Draper was located
18922 BRYAN v. MACPHERSON
close to the officer and pacing in an agitated fashion while
arguing with him. Id. Thus, the officer in Draper was con-
fronting a belligerent, argumentative individual who was
angrily pacing within feet of his position. Officer MacPher-
son, by contrast, was confronted with a half naked, unarmed,
stationary, apparently disturbed individual shouting gibberish
at a distance of approximately twenty feet. The only similarity
to the factual circumstances in Draper is that both Draper and
Bryan were stopped for a traffic violation, were loud, and
were tasered by the police.

[11] The severity of Bryan’s purported offenses “pro-
vide[ ] little, if any, basis for [Officer MacPherson’s] use of
physical force.” Smith, 394 F.3d at 702. It is undisputed that
Bryan’s initial “crime” was a mere traffic infraction—failing
to wear a seatbelt—punishable by a fine. Traffic violations
generally will not support the use of a significant level of
force. See Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir.
2009) (“Deville was stopped for a minor traffic violation . . .
making the need for force substantially lower than if she had
been suspected of a serious crime.”). Officer MacPherson also
claims that he reasonably believed Bryan had committed three
misdemeanors—resisting a police officer, failure to comply
with a lawful order, and using or being under the influence of
any controlled substance11— and that these constitute “serious
—and dangerous—criminal activity.” We disagree with Offi-
cer MacPherson’s assessment. While “the commission of a
misdemeanor offense is ‘not to be taken lightly,’ it militates
against finding the force used to effect an arrest reasonable
where the suspect was also nonviolent and ‘posed no threat to
the safety of the officers or others.’ ” Headwaters, 240 F.3d
11
Cal. Veh. Code § 2800(a) (making it a misdemeanor to willfully fail
or refuse to comply with an order of a peace officer); Cal. Health & Safety
Code § 11550 (making it unlawful to “use, or be under the influence of
any controlled substance”); Cal. Penal Code § 148 (punishing every indi-
vidual “who willfully resists, delays, or obstructs any public officer . . .
in the discharge . . . of his or her office” with a fine up to $1000 or up
to 1 year in a county jail).
 BRYAN v. MACPHERSON 18923
at 1204 (quoting Hammer v. Gross, 932 F.2d 842, 846 (9th
Cir. 1991)). None of the offenses for which Bryan was cited
or of which he was suspected is inherently dangerous or vio-
lent, and as already discussed, Bryan posed little to no safety
threat. Cf. Parker v. Gerrish, 547 F.3d 1, 9 (1st Cir. 2008)
(“Though driving while intoxicated is a serious offense, it
does not present a risk of danger to the arresting officer that
is presented when an officer confronts a suspect engaged in
an offense like robbery or assault.”). Therefore, there was no
substantial government interest in using significant force to
effect Bryan’s arrest for these misdemeanor violations that
even the State of California has determined are minor.12 Cf.
Miller v. Clark County, 340 F.3d 959, 964 (9th Cir. 2003)
(finding a felony to be “by definition a crime deemed serious
by the state”).

[12] Officer MacPherson now argues that use of the taser
was justified because he believed Bryan may have been men-
tally ill and thus subject to detention. To the contrary: if Offi-
cer MacPherson believed Bryan was mentally disturbed he
should have made greater effort to take control of the situation
through less intrusive means. As we have held, “[t]he prob-
lems posed by, and thus the tactics to be employed against, an
unarmed, emotionally distraught individual who is creating a
disturbance or resisting arrest are ordinarily different from
those involved in law enforcement efforts to subdue an armed
and dangerous criminal who has recently committed a serious
offense.” Deorle, 272 F.3d at 1282-83. Although we have
refused to create two tracks of excessive force analysis, one
for the mentally ill and one for serious criminals, we have
found that even “when an emotionally disturbed individual is
12
Our sister circuits have likewise concluded that misdemeanors are rel-
atively minor and will generally not support the deployment of significant
force. See, e.g., Fogarty v. Gallegos, 523 F.3d 1147, 1160 (10th Cir.
2008); Reese v. Herbert, 527 F.3d 1253, 1274 (11th Cir. 2008). In addi-
tion, we have previously suggested that felonies not involving violence
provide limited support for the use of significant force under Graham. See
Meredith, 342 F.3d at 1063; Chew, 27 F.3d at 1442-43 & n.9.
18924 BRYAN v. MACPHERSON
‘acting out’ and inviting officers to use deadly force to subdue
him, the governmental interest in using such force is dimin-
ished by the fact that the officers are confronted . . . with a
mentally ill individual.” Id. at 1283. The same reasoning
applies to intermediate levels of force. A mentally ill individ-
ual is in need of a doctor, not a jail cell, and in the usual case
—where such an individual is neither a threat to himself nor
to anyone else—the government’s interest in deploying force
to detain him is not as substantial as its interest in deploying
that force to apprehend a dangerous criminal. Moreover, the
purpose of detaining a mentally ill individual is not to punish
him, but to help him. The government has an important inter-
est in providing assistance to a person in need of psychiatric
care; thus, the use of force that may be justified by that inter-
est necessarily differs both in degree and in kind from the use
of force that would be justified against a person who has com-
mitted a crime or who poses a threat to the community. Thus,
whether Officer MacPherson believed that Bryan had com-
mitted a variety of nonviolent misdemeanors or that Bryan
was mentally ill, this Graham factor does not support the
deployment of an intermediate level of force.

Turning to Bryan’s “resistance,” we note that Bryan in fact
complied with every command issued by Officer MacPherson
except the one he asserts he did not hear—to remain in the
car. Even if Bryan failed to comply with the command to
remain in his vehicle, such noncompliance does not constitute
“active resistance” supporting a substantial use of force. Fol-
lowing the Supreme Court’s instruction in Graham, we have
drawn a distinction between passive and active resistance. See
Forrester, 25 F.3d at 805 (finding that protestor’s “remaining
seated, refusing to move, and refusing to bear weight” despite
police orders to the contrary constituted “passive resistance”);
see also Headwaters, 276 F.3d at 1130-31 (finding that prote-
stors, who were chained together with devices and refused to
exit a building when ordered, passively resisted).

By shouting gibberish and hitting himself in the quadriceps,
Bryan may not have been perfectly passive. “Resistance,”
 BRYAN v. MACPHERSON 18925
however, should not be understood as a binary state, with
resistance being either completely passive or active. Rather,
it runs the gamut from the purely passive protestor who sim-
ply refuses to stand, to the individual who is physically
assaulting the officer. We must eschew ultimately unhelpful
blanket labels and evaluate the nature of any resistance in
light of the actual facts of the case. For example, in Smith v.
City of Hemet, we confronted an individual who “continually
ignored” officer commands to remove his hands from his
pockets and to not re-enter his home. In addition, he “physi-
cally resisted . . . for only a brief time.” 394 F.3d at 703.
Although Smith was not perfectly passive in the encounter,
we stated that it did not appear “that Smith’s resistance was
particularly bellicose” and thus found that this factor provided
little support for a use of significant force. Id. Even purely
passive resistance can support the use of some force, but the
level of force an individual’s resistance will support is depen-
dent on the factual circumstances underlying that resistance.

[13] Reviewing Bryan’s conduct, we conclude that even if
we were to consider his degree of compliance solely from the
officer’s subjective point of view, this case would be closer
to the passive resistance we confronted in Forrester and
Headwaters or the minor resistance in Smith, than it would be
to truly active resistance. The only resistance Officer Mac-
Pherson testified to was a failure to comply with his order that
Bryan remain in his car. Shouting gibberish and hitting one’s
quadriceps is certainly bizarre behavior, but such behavior is
a far cry from actively struggling with an officer attempting
to restrain and arrest an individual. Compare Abdullahi v. City
of Madison, 423 F.3d 763, 776 (7th Cir. 2005) (involving an
arrestee swinging a belt at an officer and “strenuously resist[-
ing]” as the police attempted to handcuff him); McCormick v.
City of Fort Lauderdale, 333 F.3d 1234, 1241-42 (11th Cir.
2003) (involving an arrestee engaging and advancing on offi-
cers with a stick); Jackson v. City of Bremerton, 268 F.3d
646, 653 (9th Cir. 2001) (involving an individual interfering
with an attempted arrest of an individual by engaging the offi-
18926 BRYAN v. MACPHERSON
cer in a “melee”). As in Smith, Bryan’s “resistance” was not
“particularly bellicose.” Smith, 394 F.3d at 703. Indeed, when
we view the facts in the light most favorable to Bryan, as we
must at this stage of the proceedings, his conduct does not
constitute resistance at all.13

[14] Two additional considerations militate against finding
Officer MacPherson’s use of force reasonable. First, it is
undisputed that Officer MacPherson failed to warn Bryan that
he would be shot with the X26 if he did not comply with the
order to remain in his car.14 We recognized in Deorle that
police officers normally provide such warnings where feasi-
ble, even when the force is less than deadly, and that the fail-
ure to give such a warning is a factor to consider. See 272
F.3d at 1284; see also Jackson, 268 F.3d at 653 (finding that
the officer’s “safety interest” “increased further when the
group was warned by police that a chemical irritant would be
used if they did not move back . . . and the group refused to
comply”). Here, it was feasible to give a warning that the use
of force was imminent if Bryan did not comply. While a
warning to Bryan may or may not have caused him to comply,
there was “ample time to give that order or warning and no
reason whatsoever not to do so.” Deorle, 272 F.3d at 1284.

[15] Second, we have held that police are “required to con-
sider ‘[w]hat other tactics if any were available’ to effect the
arrest.” Headwaters, 240 F.3d at 1204 (quoting Chew, 27 F.3d
13
The jury may credit Bryan’s testimony that he did not hear the offi-
cer’s order to remain in the car. The evidence suggests that Bryan thought
the officer would again approach from the passenger side of his car and
that Bryan turned to face that way. That the officer was instead yards away
in the other direction may have prevented Bryan from hearing the com-
mands.
14
Officer MacPherson now argues that he did warn Bryan. However,
Officer MacPherson’s own testimony belies this claim. Officer MacPher-
son has consistently testified that he repeatedly ordered Bryan to remain
in his vehicle. This clearly constitutes a command, but it hardly warns him
that if he failed to return to his car he would be shot with a taser.
 BRYAN v. MACPHERSON 18927
at 1443).15 Officer MacPherson argues that there were no less
intrusive alternatives available to apprehend Bryan. Objec-
tively, however, there were clear, reasonable, and less intru-
sive alternatives. Officer MacPherson knew additional
officers were en route to the scene. He was, or should have
been, aware that the arrival of those officers would change the
tactical calculus confronting him, likely opening up additional
ways to resolve the situation without the need for an interme-
diate level of force. Thus, while by no means dispositive, that
Officer MacPherson did not provide a warning before deploy-
ing the X26 and apparently did not consider less intrusive
means of effecting Bryan’s arrest factor significantly into our
Graham analysis.

3. Balancing the Competing Interests

[16] Our review of the Graham factors reveals that the
government had, at best, a minimal interest in the use of force
against Bryan. This interest is insufficient to justify the use of
an intermediate level of force against an individual. We are
cognizant of the Supreme Court’s command to evaluate an
officer’s actions “from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396. We also recognize the reality that
“police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary
in a particular situation.” Id. at 397. This does not mean, how-
ever, that a Fourth Amendment violation will be found only
in those rare instances where an officer and his attorney are
unable to find a sufficient number of compelling adjectives to
15
We do not challenge the settled principle that police officers need not
employ the “least intrusive” degree of force possible. See Gregory v.
County of Maui, 523 F.3d 1103, 1107 (9th Cir. 2008) (citing Forrester, 25
F.3d at 807-08). We merely recognize the equally settled principle that
officers must consider less intrusive methods of effecting the arrest and
that the presence of feasible alternatives is a factor to include in our analy-
sis.
18928 BRYAN v. MACPHERSON
describe the victim’s conduct. Nor does it mean that we can
base our analysis on what officers actually felt or believed
during an incident. Rather, we must ask if the officers’ con-
duct is “ ‘objectively reasonable’ in light of the facts and cir-
cumstances confronting them” without regard for an officer’s
subjective intentions. Id.

[17] We thus conclude that the intermediate level of force
employed by Officer MacPherson against Bryan was exces-
sive in light of the governmental interests at stake. Bryan
never attempted to flee. He was clearly unarmed and was
standing, without advancing in any direction, next to his vehi-
cle. Officer MacPherson was standing approximately twenty
feet away observing Bryan’s stationary, bizarre tantrum with
his X26 drawn and charged. Consequently, the objective facts
reveal a tense, but static, situation with Officer MacPherson
ready to respond to any developments while awaiting back-
up. Bryan was neither a flight risk, a dangerous felon, nor an
immediate threat. Therefore, there was simply “no immediate
need to subdue [Bryan]” before Officer MacPherson’s fellow
officers arrived or less-invasive means were attempted.
Deorle, 272 F.3d at 1282; see also, Blankenhorn v. City of
Orange, 485 F.3d 463, 480 (9th Cir. 2007) (“ ‘[I]t is the need
for force which is at the heart of the Graham factors’ ” (quot-
ing Liston v. County of Riverside, 120 F.3d 965, 976 (9th Cir.
1997))). Officer MacPherson’s desire to quickly and deci-
sively end an unusual and tense situation is understandable.
His chosen method for doing so violated Bryan’s constitu-
tional right to be free from excessive force.

B. Did Officer MacPherson Violate Bryan’s Clearly
Established Rights?

[18] Having concluded that Officer MacPherson’s actions
violated Bryan’s Fourth Amendment rights, we next must ask
whether his conduct “violate[d] clearly established statutory
or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
 BRYAN v. MACPHERSON 18929
(1982). If an officer’s use of force was “premised on a rea-
sonable belief that such force was lawful,” the officer will be
granted immunity from suit, notwithstanding the fact exces-
sive force was deployed. Deorle, 272 F.3d at 1285; see also
Saucier, 533 U.S. at 202 (asserting that the qualified immu-
nity analysis asks “whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he con-
fronted”). We must, therefore, turn to the state of the law at
the time Officer MacPherson tasered Bryan to determine
whether Officer MacPherson reasonably could have believed
his use of the taser against Bryan was constitutional. See Sau-
cier, 533 U.S. at 202.

[19] All of the factors articulated in Graham—along with
our recent applications of Graham in Deorle and Headwaters
—placed Officer MacPherson on fair notice that an intermedi-
ate level of force was unjustified. See Fogarty v. Gallegos,
523 F.3d 1147, 1162 (10th Cir. 2008) (“Considering that
under Fogarty’s version of events each of the Graham factors
lines up in his favor, this case is not so close that our prece-
dents would fail to portend the constitutional unreasonable-
ness of defendants’ alleged actions.”); Boyd v. Benton County,
374 F.3d 773, 781 (9th Cir. 2004) (asking whether “a reason-
able officer would have had fair notice that the force
employed was unlawful”). Officer MacPherson stopped
Bryan for the most minor of offenses. There was no reason-
able basis to conclude that Bryan was armed. He was twenty
feet away and did not physically confront the officer. The
facts suggest that Bryan was not even facing Officer Mac-
Pherson when he was shot. A reasonable officer in these cir-
cumstances would have known that it was unreasonable to
deploy intermediate force.

[20] We do not need to find closely analogous case law to
show that a right is clearly established. Moreno v. Baca, 431
F.3d 633, 641 (9th Cir. 2005); see also Hope v. Pelzer, 536
U.S. 730, 741 (2002) (“[O]fficials can still be on notice that
their conduct violates established law even in novel factual
18930 BRYAN v. MACPHERSON
circumstances.”); Oliver, 586 F.3d at 907 (finding that a right
can be clearly established where the officer’s conduct “lies so
obviously at the very core of what the Fourth Amendment
prohibits that the unlawfulness of the conduct was readily
apparent to [the officer], notwithstanding the lack of fact-
specific case law”). However, as of July 24, 2005, there was
no Supreme Court decision or decision of our court address-
ing whether the use of a taser, such as the Taser X26, in dart
mode constituted an intermediate level of force. Indeed,
before that date, the only statement we had made regarding
tasers in a published opinion was that they were among the
“variety of non-lethal ‘pain compliance’ weapons used by
police forces.” San Jose Charter of Hells Angels Motorcycle
Club, 402 F.3d at 969 n.8. And, as the Eighth Circuit has
noted, “[t]he Taser is a relatively new implement of force, and
case law related to the Taser is developing.” Brown v. City of
Golden Valley, 574 F.3d 491, 498 n.5 (8th Cir. 2009). Two
other panels have recently, in cases involving different cir-
cumstances, concluded that the law regarding tasers is not suf-
ficiently clearly established to warrant denying officers
qualified immunity. Mattos v. Agarano, 590 F.3d 1082, 1089-
90 (9th Cir. 2010); Brooks v. City of Seattle, 599 F.3d 1018,
1031 n.18 (9th Cir. 2010).

[21] Based on these recent statements regarding the use of
tasers, and the dearth of prior authority, we must conclude
that a reasonable officer in Officer MacPherson’s position
could have made a reasonable mistake of law regarding the
constitutionality of the taser use in the circumstances Officer
MacPherson confronted in July 2005. Accordingly, Officer
MacPherson is entitled to qualified immunity. See Ctr. for
Bio-Ethical Reform v. Los Angeles County Sheriff Dept., 533
F.3d 780, 794 (9th Cir. 2008).

CONCLUSION

Viewing the facts, as we must, in the light most favorable
to Bryan, we conclude, for the purposes of summary judg-
 BRYAN v. MACPHERSON 18931
ment, that Officer MacPherson used unconstitutionally exces-
sive force. However, a reasonable officer confronting the
circumstances faced by Officer MacPherson on July 24, 2005,
could have made a reasonable mistake of law in believing the
use of the taser was reasonable. Accordingly we REVERSE
the district court’s denial of summary judgment on the basis
of qualified immunity.

REVERSED.