Date: 03-27-2010

Case Style: Malaika Brooks v. City of Seattle, et al.

Case Number: 08-35526

Judge: Marsha S. Berzon

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Western District of Washington, King County

Plaintiff's Attorney: Eric Zubel, Eric Zubel, PC, Seattle, Washington, for the plaintiff-appellee.

Defendant's Attorney: Karen L. Cobb and Theron A. (Ted) Buck, Stafford Frey Cooper, Seattle, Washington, for the defendants-appellants.

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

I.

On November 23, 2004, SPD Officer Juan Ornelas stopped Brooks for speeding in a school zone.2 The situation deteriorated rather quickly. Brooks claimed she had not been speeding, took her driver’s license out of Officer Ornelas’s ticket book and only reluctantly gave it back, and then repeatedly refused to sign a Notice of Infraction (“Notice”) regarding her speeding violation.3 When SPD Officer Jones arrived at the scene, Officer Ornelas told him that Brooks had refused to sign the Notice and was being uncooperative. Officer Jones tried to obtain her signature himself, but Brooks also refused his entreaties, despite assurances that signing was not tantamount to admitting the violation. She accused Officer Jones of lying to her about the import of signing,4 suggested he was being racist, and became upset, repeating “I’m not signing, I’m not signing” over and over. Throughout, she remained in the car with the ignition running.

There is considerable dispute as to whether the Officers gave Brooks both a Notice based upon her speeding and violation and a Citation to Appear based upon her refusal to sign the Notice. Officer Jones maintains that he asked Brooks about both the Notice and the Citation to Appear. Sergeant Daman claims he was also asking about both when he asked Brooks if she would sign “the ticket.” Confusing matters, the Notice and the Citation to Appear are frequently referred to by all parties interchangeably as “tickets” or “citations” even though the penalty for refusing to sign them is quite different. Nonetheless, Brooks maintains that she thought the “ticket” she was being asked to sign here was still the Notice. This panel must view the facts in the light most favorable to her and assume she did not refuse to sign the Citation to Appear.

Officer Ornelas then called his supervisor, SPD Sergeant Daman. When Sergeant Daman arrived, Brooks continued to refuse to sign the Notice. Sergeant Daman then asked her “if [she] was going to sign the ticket.” When she refused, he told Officers Ornelas and Jones to “[b]ook her.” They attempted to follow those orders.

Brooks refused to leave her car, remaining in it with the ignition running and her door shut. Officer Jones then showed Brooks his Taser, explaining that it would hurt “extremely bad” if applied. Brooks told them she was pregnant and that she needed to use the restroom. The officers discussed where to tase her, deciding on her thigh. Officer Jones demonstrated the Taser for her. Brooks still remained in the car, so Officer Ornelas opened the door and reached over to take the key out of the ignition, dropping the keys on the floorboard.5 Officer Ornelas then employed a pain compliance technique, bringing Brooks’s left arm up behind her back, whereon Brooks stiffened her body and clutched the steering wheel in order to frustrate her removal from the car. Officer Jones discharged the Taser against Brooks’s thigh, through her sweat pants, which caused Brooks “tremendous pain.” She began to yell and honk the car’s horn.

Within the next minute, Officer Jones tased her two more times, against her shoulder and neck, the latter being the only area of exposed skin. Brooks was unable to get out of the car herself during this time because her arm was still behind her back.6 The third tasing moved Brooks to the right, at which point Officers Ornelas and Jones were able to extract her from the car through a combination of pushing and pulling. She
was immediately seen by medical professionals, and two
months later delivered a healthy baby.

Brooks was charged with (1) violation of Seattle Municipal Code 11.59.090 for refusing to sign the Notice, and (2) resisting arrest. She was convicted of the first charge, but the jury hung on the second, which was later dismissed. Brooks then filed this action against the Officers, asserting a claim under 42 U.S.C. § 1983 and assault and battery claims under state tort law for the alleged excessive force. The district court denied the Officers’ motion for summary judgment on those claims, finding a clearly established constitutional violation that deprived the Officers of qualified immunity on both the federal and state claims.

II.

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

III.

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

A. Constitutional Violation

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

1. Probable Cause

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

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

Thus, we consider whether the Officers had probable cause to arrest Brooks.

[2] “Probable cause exists when the facts and circumstances within the officer’s knowledge are sufficient to cause a reasonably prudent person to believe that a crime has been committed.” Lassiter v. City of Bremerton, 556 F.3d 1049, 1053 (9th Cir. 2009). Though we agree with the district court that the Officers did have probable cause to arrest Brooks, we arrive at that conclusion by a different path.8 [3] Brooks concedes that she refused to sign the Notice, which amounted to a violation of Seattle Municipal Code § 11.59.090(c). For the purposes of the Fourth Amendment, this is sufficient to find probable cause. See Virginia v. Moore, 128 S. Ct. 1598, 1606-07 (2008) (holding that an arrest based on probable cause does not violate the Fourth Amendment, even if the relevant criminal offense is nonarrestable under state law).

However, because Virginia v. Moore does not answer the question of whether the Officers were following departmental standards or are entitled to state law immunity, we march on. Brooks’s arguments are all based on the premise that (1) she could not be arrested for refusing to sign the Notice and (2) although she could be arrested for refusing to sign the Citation, she never received it. However, she does not argue that she was detained longer than was reasonably necessary under Section 46.64.015 or that her conduct during that period of detention could not provide grounds for lawful arrest.

[4] First, the Officers had clear authority for their initial arrest and detention of Brooks. Brooks does not dispute that her initial traffic violation permitted the Officers to arrest and to detain her until they issued her a Notice. See Wash. Rev. Code § 46.64.015 (2004) (“The arrested person, in order to secure release, and when permitted by the arresting officer, must give his or her written promise to appear in court as required by the citation and notice by singing in the appropriate place . . .”).9 In addition, Brooks’s refusal to sign the Notice gave the Officers probable cause to continue to detain her. Under Washington law, a police officer may arrest an individual for committing a misdemeanor in his presence. Wash. Rev. Code § 10.31.100. Failure to sign the Notice is a misdemeanor. See Wash. Rev. Code § 46.61.022 (making failure to comply with Wash. Rev. Code § 46.61.021(3), which includes a requirement to sign the Notice, a misdemeanor).

As there is no dispute that Brooks’s refusal to sign the Notice took place in the presence of the Officers, there can be no question that Washington law authorized her arrest.

[5] The Officers’ authority to arrest Brooks for these misdemeanors would ordinarily last no longer than necessary to issue her a Citation. See Wash. Rev. Code § 46.64.015 (2004). 9In 2006, the Washington legislature amended this statute to omit the authorization to effect a custodial arrest for failure to sign the Citation to Appear. See Wash. Rev. Code § 46.64.015. However, the earlier version was applicable to the events of this case.

However, her conduct during this initial detention gave the Officers probable cause to place her under custodial arrest for other violations of state law—a point that Brooks does not dispute. For instance, we find that probable cause existed to arrest Brooks for obstructing an officer. See Wash. Rev. Code § 9A.76.020. “A person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties.” Id.; see Lassiter, 556 F.3d at 1051, 1053 (listing the crime’s elements as “1) an action or inaction that hinders, delays, or obstructs the officers; 2) while the officers are in the midst of their official duties; 3) the defendant knows the officers are discharging a public duty; [and] 4) the action or inaction is done knowingly”). That violation is a gross misdemeanor for which custodial arrest is appropriate. See Wash. Rev. Code §§ 9A.76.020(3),

10.31.100. While trying to obtain Brooks’s signature on the Notice, the officers were acting in the discharge of their official duties. See Wash. Rev. Code §§ 46.61.021, 46.63.060(2)(j) (official duties when completing and issuing Notice, which requires signature); State v. Richards, 36 P.3d 1119, (Wash. 2001) (official duties when seeking signature on Citation to Appear).

[6] Based on Brooks’s undisputed uncooperative behavior, a reasonably prudent person would have believed Brooks was violating section 9A.76.020 by obstructing the Officers’ attempts to obtain her signature and complete the traffic stop. Wash. Rev. Code § 9A.76.020(1); see Lassiter, 556 F.3d at 1053 (finding probable cause to arrest an individual for obstructing a police officer when that individual declined to follow instructions and grabbed the officer’s arm when the officer placed a hand on him). The record reflects that Brooks’s detention was lengthened and the situation escalated by her own resistance. The Officers were attempting—and Brooks knew they were attempting—to complete and issue the Notice by securing her signature on it as required by sections 46.61.021 and 46.63.060(2)(j). Her behavior interfered with their lawful attempts to carry out that duty. Therefore, the Officers had probable cause to arrest Brooks. Additionally, Washington state courts have recognized that although officers generally should issue citations for minor traffic violations instead of making custodial arrests, there might be “reasonable grounds” for making an arrest, such as when “there was reasonable grounds to believe that the accused will refuse to respond to a citation.” State v. Hehman, 578 P.2d 527, 528-29 (Wash. 1978); see State v. Covington, 144 Wash. App. 1012 (Wash. Ct. App. 2008) (finding it reasonable to believe that person without identification, claiming not to own the vehicle he was driving, would disregard a promise to appear on the citation if one were given); State v. Jordan, 747 P.2d 1096, 1098 (Wash. Ct. App. 1987) (same); State v. McIntosh, 712 P.2d 319 (Wash. Ct. App. 1986) (same and defendant also gave suspicious account of his activity on evening of arrest).

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

2. Excessive Force

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

The right to employ “some degree of physical coercion or threat thereof” to effect an arrest accompanies the right to make the arrest or investigatory stop, id. at 396, but the force must be necessary to be reasonable, Blankenhorn, 485 F.3d at 480. Where police have control over a suspect, the use of further force to bring the suspect under control may be unreasonable.

See Headwaters Forest Def., 276 F.3d at 1125 (use of pepper spray on protesters already under police control held excessive). Officers are not required to use the least intrusive means available; they simply must act within the range of reasonable conduct. See Scott v. Heinrich, 39 F.3d 912, 915 (9th Cir. 1994). Determination of that reasonable range requires consideration of the totality of the circumstances, Forrester v. City of San Diego, 25 F.3d 804, 806 n.2 (9th Cir. 1994), including whether a warning was given, Deorle v. Rutherford, 272 F.3d 1272, 1283-84 (9th Cir. 2001), and the availability of alternative methods of capturing and subduing a suspect, Smith, 394 F.3d at 701-02. The fact that a suspect does not threaten the officer does not shield him from the use of force.

See Forrester, 25 F.3d at 807-09 (finding no Fourth Amendment violation when officers used injury-causing pain compliance techniques on passively resisting demonstrators). The Officers argue that the use of a Taser to gain Brooks’s compliance—after previous unsuccessful, lawful attempts to gain her cooperation and warnings the Taser would be used— was not objectively unreasonable. The Officers note that a Taser’s use in “drive-stun” mode inflicts only transitory, localized pain. Applying the Graham factors, the Officers first claim that the alleged crime was the more serious crime of resisting arrest, not the failure to sign the Notice. Second, they contend that, although Brooks initially posed only a minimal risk, that risk escalated when she became confrontational and refused to leave her running car. Third, and finally, they point out that Brooks was actively resisting arrest by using force to immobilize herself and remain in the car.

a. The Amount of Force

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

[9] The Taser’s use in “touch” or “drive-stun” mode—as the Officers used it here—involves touching the Taser to the body and causes temporary, localized pain only. According to the SPD’s Use of Force Training Guideline,10 this usage was considered a Level 1 tactic, akin to “pain compliance applied through the use of distraction, counter-joint holds, hair control holds, [and pepper spray]” and used to control passively or actively resisting suspects. By contrast, applying a Taser in dart mode (wherein darts are shot at the suspect from some distance) achieves greater distance between the contact nodes which can cause neuro-muscular incapacitation. In dart mode, the Taser’s use is a Level 2 tactic to be employed only against aggressive resistance. The district court did not differentiate between the possible modes of use, noting only that the Taser was discharged on Brooks’s thigh, shoulder, and neck, causing “a level of force (whether once or three times) that hurt ‘extremely bad,’ ” and constituted a “quantum leap” from the previous force employed. These comments suggest the district court thought the force used was severe. We find this to be an overestimation that led the court to err in finding excessive force.

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

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

The Bryan panel undertook a more detailed analysis of the quantum of force. The panel concluded that the use of a Taser, in a manner equivalent to dart mode, “constitute[s] an intermediate, significant level of force that must be justified by a strong government interest that compels the employment of such force.” Bryan, 590 F.3d at 774 (internal quotation marks omitted).12 In Bryan, a police officer discharged his X26 Taser from a distance of approximately 20-25 feet, embedding a barbed electrical probe into Bryan’s arm. Id. at 771. The X26’s powerful electrical pulse delivered an excruciating pain throughout Bryan’s body and caused Bryan to lose all muscular control, fall face first onto the pavement, shatter four front teeth, and suffer facial abrasions and swelling. Id. He also needed to have the electrical barb surgically removed from his flesh. Id. at 773. Because the pain inflicted by the X26 Taser was “intense, [was] felt throughout the body, and [was] administered by effectively commandeering the victim’s muscles and nerves,” we held the X26 Taser to be “an intermediate or medium, though not insignificant, quantum of force.” Id. at 774-75.13

[10] The force at issue here is markedly different than the force in Bryan, and, unlike in Mattos, we have the benefit of a fully-developed record on the use of a Taser in drive-stun mode. The use of the Taser in drive-stun mode is painful, certainly, but also temporary and localized, without incapacitating muscle contractions or significant lasting injury. Brooks said she sustained burn marks and now has scars on her upper arm and thigh, which is certainly not insignificant, but these injuries are far less serious than those inflicted on Bryan by the X26 Taser—excruciating pain throughout his entire body, temporary paralysis, facial abrasions, shattered teeth, and a sharp barb lodged into his flesh. Thus, the use of the Taser in drive-stun mode—as opposed to dart mode—seems unlike the force used in Bryan or uses of force which this court has previously considered severe. See, e.g., Davis, 478 F.3d at 1055 (holding that the force used was “extremely severe” when officer slammed suspect head-first into the wall, breaking his neck, then pressed to the ground by the officer’s knee and punched); Smith, 394 F.3d at 701-02 (severe when officers pepper sprayed suspect four times and sicced a police dog on him three times while he was pinned down, then failed to rinse the spray from his eyes and bite wounds). Indeed, the amount of force here was more on par with pain compliance techniques,14 which this court has found involve a “less significant” intrusion upon an individual’s personal security than most claims of force, even when they cause pain and injury. Forrester, 25 F.3d at 807 (considering pain compliance techniques that caused bruises, pinched nerves, and a broken wrist). Although certainly a “serious intrusion,” Mattos, 590 F.3d at 1087, when compared to the far more serious intrusion in Bryan, we find the quantum of force here to be less than the intermediate.15

b. The Graham Factors

i. Severity of the Crime

[11] Brooks was detained for refusing to sign her name on the Notice. The Officers were attempting to take her into custody for refusing to sign the Citation to Appear (albeit erroneously, under the facts as Brooks states them). Neither of these crimes were serious. As discussed above, see supra Part III.A.1, Brooks’s behavior also gave the Officers probable cause to arrest her under Washington Revised Code § 9A.76.020(1) for obstructing a police officer in the exercise of his official duties. This court has held that in certain circumstances, obstruction of an officer can justify the use of a Taser. See Mattos, 590 F.3d at 1087-88 (concluding that plaintiff’s obstruction of her husband’s arrest made it more likely that her husband would assault the officers). Although obstructing an officer is a more serious offense than the traffic violations,16 it is nonetheless not a serious crime. See id.; Davis, 478 F.3d at 1055. This factor weighs in favor of finding the force excessive.

ii. Threat Posed to Officers or Bystanders

[12] The threat posed is the most significant Graham factor. See Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994).

The district court found that Brooks posed no danger to the public or officers because she never used or threatened force against the Officers (using it only to immobilize herself) and could not have hurt anyone with her car. The last point stems from the court’s misunderstanding of the record; even Brooks admits that the keys remained on the floorboard of her car and were not in the Officers’ possession. Whether the keys were on the floorboard or in the Officers’ possession, it seems clear that Brooks was not going to be able to harm anyone with her car at a moment’s notice. Nonetheless, some threat she might retrieve the keys and drive off erratically remained, particularly given her refusal to leave the car and her state of agitation.

[13] It would also be incorrect to say Brooks posed no threat to officers. While she might have been less of a threat because her force so far had been directed solely at immobilizing herself, a suspect who repeatedly refuses to comply with instructions or leave her car escalates the risk involved for officers unable to predict what type of noncompliance might come next. A contemporaneous statement by Officer Jones confirms this fear. That Brooks remained in her car, resisting even the pain compliance hold the Officers first attempted, also reveals that she was not under their control.

Finally, the Washington legislature’s action in making obstructing an officer a gross misdemeanor for which custodial arrest is appropriate suggests that Brooks posed the sort of threat that it was appropriate to remove from the streets. See Wash. Rev. Code §§ 9A.76.020(3), 10.31.100. Therefore, Brooks may not have posed a great threat, she did pose some threat by virtue of her continued non-compliance, which weighs against finding the less-than-intermediate force excessive.

iii. Resistance to Arrest and Risk of Flight

[14] Though the risk of flight, as described above, was present but small, there is little question that Brooks resisted arrest: the district court noted she “does not deny that she used force to resist the [O]fficers’ efforts,” she grasped the steering wheel and wedged herself between the seat and steering wheel, and she refused to get out of the car when asked.

Brooks’s conduct was defined by the SPD Use of Force Training Guideline as “actively resistant” because she employed force to defeat the Officers’ attempts to control her. Our precedent also classifies Brooks’s conduct as active resistance. See Chew, 27 F.3d at 1442 (hiding and fleeing is resisting arrest and offering physical resistance to an officer’s efforts constitutes a greater level of active resistance). While Brooks’s resistance may not have been violent or aggressive, those aspects are more relevant to the second Graham factor, leaving the fact of her resistance here to weigh against finding the force used excessive.

c. Totality of the Circumstances

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

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

[16] Other factors we have considered also weigh against finding a constitutional violation. The Officers gave multiple warnings that a Taser would be used and explained its effects.

See Deorle, 272 F.3d at 1284 (finding that warnings should be given, when feasible, before force more serious than that employed here is used); see also Bryan, 590 F.3d at 780 (considering the failure to give a warning as a factor militating against the reasonableness of X26 Taser usage). While the court may consider what the officers knew about a suspect’s health, see Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994), the record indicates that, when the Officers discovered Brooks’s pregnancy, they took steps to employ a localized type of force away from her stomach. Brooks’s arrest was supported by probable cause under Washington law and the Officers’ use of force was in accordance with the SPD’s Use of Force Training Guideline. See Smith, 394 F.3d at 703 (considering whether the officer’s conduct “violated applicable police standards” in assessing the reasonableness of the force that statement should be read in context with the Use of Force Training Guideline, which spells out what force would be appropriate in response to certain levels of non-compliance. The Officers’ Taser use was consistent with that Guideline. The district court found the SPD’s use-of-force policy constitutional.

[17] The Taser was used three times in this case, which constitutes a greater application of force than a single tasing. Nonetheless, in light of the totality of the circumstances, this does not push the use of force into the realm of excessive. After the first use, Brooks did not communicate that she was willing to comply with the Officers’ commands, but instead started yelling and honking her horn, which would likely have been perceived by the Officers as an escalation of her resistance. The same behavior followed the second tasing. The third tasing moved Brooks to the right, at which point Officers Ornelas and Jones were able to extract her from the car.

Therefore, while using the Taser three times makes this a closer case, we find that it does not show excessive force in light of the corresponding escalation of Brooks’s resistance and the fact that it was the third tasing that appeared to dislodge her such that the Officers could finally extract her from her car and gain control over her.

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

IV.

[19] Because the district court found that the Officers’ conduct amounted to excessive force, it declined to find qualified immunity for the Officers on Brooks’s state law claims. See Staats, 991 P.2d at 627-28 (holding that immunity is not available for assault and battery claims “arising out of the use of excessive force to effectuate an arrest”). However, because we find the Officers’ use of force reasonable and not excessive under the Fourth Amendment, we reach the issue. Under Washington law, force used by a police officer is not unlawful “[w]henever necessarily used . . . in the performance of a legal duty.” Wash. Rev. Code § 9A.16.020(1). Where the use of force is reasonable, an officer is entitled to state law qualified immunity for assault and battery claims. See McKinney v. City of Tukwila, 13 P.3d 631, 641 (Wash. App. 2000). As discussed above, the Officers had probable cause under Washington law to arrest Brooks for obstructing an officer in the exercise of his official duties, did so at the behest of the superior officer on the scene, and acted reasonably and in accordance with the SPD’s Use of Force Training Guideline. Thus, the Officers are entitled to immunity for these state law claims.

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See: http://www.ca9.uscourts.gov/datastore/opinions/2010/03/26/08-35526.pdf

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

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