FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARL BRYAN, 

Plaintiff-Appellee, No. 08-55622

v. D.C. No.

BRIAN MCPHERSON; CORONADO  3:06-CV-01487-

POLICE DEPARTMENT; CITY OF LAB-CAB

CORONADO, a municipal OPINION corporation,

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 December 28, 2009

Before: Harry Pregerson, Stephen Reinhardt and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Wardlaw

16731
COUNSEL

Steven E. Boemer, 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.

OPINION

WARDLAW, Circuit Judge:

Early one morning in the summer of 2005, Officer Brian

McPherson 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 McPherson appeals the

denial of his motion for summary judgment based on qualified immunity. We affirm the district court because, viewing

the circumstances in the light most favorable to Bryan, Officer McPherson’s use of the taser was unconstitutionally

excessive and a violation of Bryan’s clearly established rights.

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

BRYAN v. MCPHERSON 16735
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 traveling 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. Continuing 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 McPherson, who was stationed there to enforce seatbelt 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 McPherson

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 McPherson 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 curb, angry

with himself over the prospects of another citation, 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 outside 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 McPherson and,

according to Officer McPherson, was standing twenty to

16736 BRYAN v. MCPHERSON
twenty-five feet away and not attempting to flee. Officer

McPherson testified that he told Bryan to remain in the car,

while Bryan testified that he did not hear Officer McPherson

tell him to do so. The one material dispute concerns whether

Bryan made any movement toward the officer. Officer

McPherson 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 McPherson. Without giving any warning, Officer

McPherson 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 McPherson 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

Police Department, but determined that Officer McPherson

was not entitled to qualified immunity at this stage of the proceedings. The court concluded that a reasonable jury could

find that Bryan “presented no immediate danger to [Officer

McPherson] and no use of force was necessary.” In particular,

it found that a reasonable jury could find that Bryan was

located between fifteen to twenty-five feet from Officer

McPherson and was not facing him or advancing toward him.

The court also found that a reasonable officer would have

1Bryan was charged with resisting and opposing an officer in the performance 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. MCPHERSON 16737
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 concluded 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 violated 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

analysis should be addressed first.” Pearson v. Callahan, 129

S. Ct. 808, 818 (2009). Where we affirm the district court’s

denial of summary judgment, however, we must address both

questions.

A. Did Officer McPherson Employ Constitutionally

Excessive Force?

[2] Allegations of excessive force are examined under the

Fourth Amendment’s prohibition on unreasonable seizures.

16738 BRYAN v. MCPHERSON
Graham v. Connor, 490 U.S. 386, 394 (1989); Deorle v. Rutherford, 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 intrusion 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 McPherson used against Bryan.2

See Deorle, 272 F.3d at 1279; Chew v. Gates, 27 F.3d 1432,

1440 (9th Cir. 1994). Officer McPherson 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

delivers a 1200 volt, low ampere electrical charge through the

wires and probes and into his muscles.4 The impact is as pow2Although the taser used by Officer McPherson was the X26 model, our

holding applies to the use of all controlled electric devices that cause similar physiological effects. 

3According 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

McPherson. As a result, one probe penetrated his skin. 

4Tasers 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 elecBRYAN v. MCPHERSON 16739
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 McPherson’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 McPherson’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

grounds 534 U.S. 801 (2001);5 Tekle v. United States, 511

trical impulse encountered by a taser victim. According to the manufacturer, 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.

5On 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). 

16740 BRYAN v. MCPHERSON
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.6See,

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 justified 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.”).

The physiological effects, the high levels of pain, and foreseeable 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 Headwa6

“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). 

7We 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, ___ F.3d ___, 2009 WL 3417869, at *6 (11th

Cir. October 26, 2009). 

BRYAN v. MCPHERSON 16741
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 without significant risk of physical injury.” Id. at 1199. We similarly reject any contention that, because the taser results only

in the “temporary” infliction of pain, it constitutes a nonintrusive 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 delivered by the X26 is far more intense and is not localized, external, 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

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.

16742 BRYAN v. MCPHERSON
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 constitute an intermediate, significant level of force that must be

justified by “ ‘a strong government interest [that] compels the

employment of such force.’ ” Drummond ex rel. Drummond

v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir. 2003)

(quoting Deorle, 272 F.3d at 1280 (9th Cir. 2001)). 

2. Governmental Interest in the Use of Force

[7] Under Graham v. Connor, we evaluate the government’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 others, 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 consider “whatever specific factors may be appropriate in a particular 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. 

[8] The “most important” factor under Graham is whether

the suspect posed an “immediate threat to the safety of the

BRYAN v. MCPHERSON 16743
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 of others is not enough; there must be objective factors to justify such a concern.” Deorle, 272 F.3d at 1281. The

district 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 immediate 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 McPherson 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 McPherson. 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 McPherson between the door and body of the

car. We reject Officer McPherson’s contention that Bryan

constituted a threat by taking a step in Officer McPherson’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,

one that, on this procedural posture, we must resolve in

Bryan’s favor and conclude that Bryan did not advance

16744 BRYAN v. MCPHERSON
towards the officer.8

 Second, even if Bryan had taken a single

step toward Officer McPherson, this would not have rendered

him an immediate threat justifying an intermediate level of

force, as he still would have been roughly nineteen to twentyfour feet away from Officer McPherson, by the officer’s own

estimate. 

[10] Not only was Bryan standing, unarmed, at a distance

of fifteen to twenty-five feet, but the physical evidence demonstrates that Bryan was not even facing Officer McPherson

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, Officer McPherson had unholstered and charged his X26, placing

8Counsel for Officer McPherson argued that there is no genuine issue

regarding whether Bryan took a step towards Officer McPherson 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. 

9Officer McPherson’s deposition testimony only bolsters this conclusion. He testified that Bryan fell “faced forward” onto the pavement while

Bryan similarly testified that he fell straight forward. 

10Officer McPherson 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 McPherson, 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. MCPHERSON 16745
him in a position to respond immediately to any change in the

circumstances. The circumstances here show that Officer

McPherson was confronted by, at most, a disturbed and upset

young man, not an immediately threatening one. 

Officer McPherson 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 Circuit. Unlike Bryan, who was yelling gibberish and gave no

sign of hearing or understanding Officer McPherson’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 Eleventh 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

McPherson 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

close to the officer and pacing in an agitated fashion while

16746 BRYAN v. MCPHERSON
arguing with him. Id. Thus, the officer in Draper was confronting a belligerent, argumentative individual who was

angrily pacing within feet of his position. Officer McPherson,

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 “provide[ ]

little, if any, basis for [Officer McPherson’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 McPherson 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 Officer McPherson’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 at 1204 (quoting Hammer v. Gross, 932 F.2d 842,

11Cal. 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 individual “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. MCPHERSON 16747
846 (9th Cir. 1991)). None of the offenses for which Bryan

was cited or of which he was suspected is inherently dangerous or violent, 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 McPherson now argues that use of the taser

was justified because he believed Bryan may have been mentally ill and thus subject to detention. To the contrary: if Officer McPherson 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 problems 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

‘acting out’ and inviting officers to use deadly force to subdue

12Our sister circuits have likewise concluded that misdemeanors are relatively 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 addition, 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. 

16748 BRYAN v. MCPHERSON
him, the governmental interest in using such force is diminished 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 individual 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 interest in providing assistance to a person in need of psychiatric

care; thus, the use of force that may be justified by that interest necessarily differs both in degree and in kind from the use

of force that would be justified against a person who has committed a crime or who poses a threat to the community. Thus,

whether Officer McPherson believed that Bryan had committed 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 McPherson

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. Following 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 protestors, 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. MCPHERSON 16749
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 simply 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 “physically 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 dependent 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 McPherson 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 officers 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 offi16750 BRYAN v. MCPHERSON
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 McPherson’s use of force reasonable. First, it is undisputed that Officer McPherson 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 feasible, even when the force is less than deadly, and that the failure 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 consider ‘[w]hat other tactics if any were available’ to effect the

arrest.” Headwaters, 240 F.3d at 1204 (quoting Chew, 27 F.3d

13The jury may credit Bryan’s testimony that he did not hear the officer’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 commands. 

14Officer McPherson now argues that he did warn Bryan. However,

Officer McPherson’s own testimony belies this claim. Officer McPherson

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. MCPHERSON 16751
at 1443).15 Officer McPherson argues that there were no less

intrusive alternatives available to apprehend Bryan. Objectively, however, there were clear, reasonable, and less intrusive alternatives. Officer McPherson 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 intermediate level of force. Thus, while by no means dispositive, that

Officer McPherson did not provide a warning before deploying 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, however, 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

15We 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 analysis. 

16752 BRYAN v. MCPHERSON
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’ conduct is “ ‘objectively reasonable’ in light of the facts and circumstances confronting them” without regard for an officer’s

subjective intentions. Id. 

[17] We thus conclude that the intermediate level of force

employed by Officer McPherson against Bryan was excessive

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 vehicle. Officer McPherson 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 McPherson 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 McPherson’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’ ” (quoting Liston

v. County of Riverside, 120 F.3d 965, 976 (9th Cir. 1997))).

Officer McPherson’s desire to quickly and decisively end an

unusual and tense situation is understandable. His chosen

method for doing so violated Bryan’s constitutional right to

be free from excessive force.

B. Did Officer McPherson Violate Bryan’s Clearly 

Established Rights?

[18] Having concluded that Officer McPherson’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. MCPHERSON 16753
(1982). If an officer’s use of force was “premised on a reasonable belief that such force was lawful,” the officer will be

granted immunity from suit, notwithstanding the fact excessive force was deployed. Deorle, 272 F.3d at 1285; see also

Saucier, 533 U.S. at 202 (asserting that the qualified immunity analysis asks “whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted”). We must, therefore, turn to the state of the law at

the time of the current incident to determine if Officer

McPherson could have reasonably believed his use of the

taser against Bryan was constitutional. See Saucier, 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 McPherson on fair notice that an intermediate 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 precedents would fail to portend the constitutional unreasonableness of defendants’ alleged actions.”); Boyd v. Benton County,

374 F.3d 773, 781 (9th Cir. 2004) (asking whether “a reasonable officer would have had fair notice that the force

employed was unlawful”). Officer McPherson stopped Bryan

for the most minor of offenses. There was no reasonable 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 McPherson when he

was shot. A reasonable officer in these circumstances would

have known that it was unreasonable to deploy intermediate

force. 

[20] That there is no direct legal precedent dealing with this

precise factual scenario is not dispositive. Rather, where an

officer’s conduct so clearly offends an individual’s constitutional rights, we do not need to find closely analogous case

law to show that a right is clearly established. Moreno v.

16754 BRYAN v. MCPHERSON
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 circumstances.”); Oliver, ___ F.3d at ___, 2009

WL 3417869, at *7 (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”). In

the excessive force context, it is clearly established that “force

is least justified against nonviolent misdemeanants who do

not flee or actively resist and pose little or no threat to the

security of the officers or the public.” Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009); see also Casey

v. City of Federal Heights, 509 F.3d 1278, 1285 (10th Cir.

2007). No reasonable officer confronting a situation where the

need for force is at its lowest—where the target is a nonviolent, stationary misdemeanant twenty feet away—would have

concluded that deploying intermediate force without warning

was justified. We thus hold that Officer McPherson’s use of

significant force in these circumstances does not constitute a

“reasonable mistake” of either fact or law. Deorle, 272 F.3d

at 1286. Officer McPherson is therefore not entitled to qualified immunity for his use of the Taser X26 against Bryan.

CONCLUSION

Viewing the facts, as we must, in the light most favorable

to Bryan, we conclude, for the purposes of summary judgment, that Officer McPherson is not entitled to qualified

immunity. We therefore AFFIRM the district court’s denial

of summary judgment and REMAND this case for further

proceedings. 

BRYAN v. MCPHERSON 16755