United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

TROY ALAN ELLER,

Plaintiff,

v.

CITY OF SANTA ROSA, et al.,

Defendants.

NO. C09-01094 TEH

ORDER GRANTING IN PART

AND DENYING IN PART

DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT

This matter came before the Court on June 7, 2010, on Defendants’ motion for

summary judgment. Plaintiff Troy Alan Eller (“Eller” or “Plaintiff”) brings this civil rights

action against four Defendants – Tommy Isachsen (“Isachsen”) and Kyle Philp (“Philp”),

both officers with the Santa Rosa Police Department (“SRPD”), and the City of Santa Rosa

(“City”) and SRPD (collectively, “Defendants”) – based on his arrest at Santa Rosa

Memorial Hospital in the early morning hours of October 29, 2006. Eller alleges that

Isachsen and Philp arrested him without probable cause and with excessive force. 

Defendants move for summary judgment, arguing that there was no constitutional violation

and that they are protected by qualified immunity. For the reasons set forth below,

Defendants’ motion is GRANTED in part and DENIED in part.

BACKGROUND

The events surrounding Eller’s arrest began late in the evening on Saturday, October

28, 2006, and spilled into the early morning hours of Sunday, October 29 – the weekend

before Halloween. At the time, Eller was 39 years old, weighed approximately 300 pounds

and stood 6’1”. He suffered from epilepsy, which was noted on a medical alert bracelet that

he wore, and had a cognitive disorder resulting from emergency brain surgery a decade

earlier.

Case 3:09-cv-01094-TEH Document 67 Filed 06/10/10 Page 1 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

Eller consumed three beers at his apartment in Santa Rosa between 7 and 10:30 on

Saturday night and walked to downtown Santa Rosa around 11:00 to observe the Halloween

costumes and festivities. Eller was pushed to the ground as he attempted to navigate a rowdy

crowd outside a bar, landing on his left knee and aggravating a previous injury; his hat was

thrown into a bush. Eller waited at a gas station across the street until the crowd cleared out,

then returned to retrieve his hat and begin walking home. However, his knee was inflamed

and made walking difficult; he sat on the curb at the suggestion of a nearby police officer,

who called an ambulance on his behalf.

The ambulance arrived at 1:12 am on October 29, at the corner of Mendocino Avenue

and Cherry Street. According to paramedic Janet Doty’s notations in the patient care report,

Eller stated that he had been drinking heavily at a bar, was punched by someone while

walking downtown, and fell to his knee due to alcohol. Doty noted that Eller was

intoxicated, and that no other trauma was apparent. The only reason he gave for going to the

hospital was hunger and a desire to sleep. Eller was transported by ambulance to Santa Rosa

Memorial Hospital (“Hospital”), arriving at 1:34 am.

The emergency room at that hour was at “overflow” status, meaning the number of

patients exceeded the number of beds. Eller was placed in a hallway on a gurney alongside

the nurse’s station, directly across from a series of patient rooms separated from him by only

a light privacy curtain. Those rooms were occupied by an elderly woman with complaints of

blurred vision and partial paralysis; a middle-aged man experiencing chest pains; and a child

with a high fever.

Eller’s account of what transpired within the Hospital differs in key respects from the

version offered by Defendants and Hospital staff. According to Eller, the first member of the

emergency room staff to examine him held open his left eye and shone a light into it, which

made him uncomfortable; Eller protested, saying, “Leave me alone. Get the fuck out of

here.” Anne Musaelian, an emergency room technician, was later able to take his vital signs

without incident. Dr. Ian Chuang also conducted an initial examination, concluding that he

Case 3:09-cv-01094-TEH Document 67 Filed 06/10/10 Page 2 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 1

 “ETOH” is an abbreviation for ethanol (alcohol).

3

was mildly intoxicated. Eller was instructed by nurses to remain on the gurney until a doctor

could examine his knee.

Eller then recalls being approached by Isachsen. Eller explained that he needed to use

the restroom, but Isachsen would not allow him to get up until he was seen by a doctor. Eller

repeated the request, and Isachsen again refused. In his third attempt, Eller asked if Isachsen

or a nurse could accompany him to the restroom, but Isachsen told him to “wait for the

doctor.” Finally, Eller slid himself onto his right leg while still leaning against the gurney

and told Isachsen, “I gotta go.” Eller recalls that Isachsen then shot him in the chest with a

Taser from about an arm’s length distance; Eller immediately fell to the ground, where

Isachsen wrestled him down and restrained him in handcuffs. Eller experienced urinary

incontinence during the commotion and wet his pants. Eller claims that the officers then

dragged him out of the Hospital and to the patrol car, and took him into custody at the

Sonoma County Adult Detention Facility. Eller contends that he suffered long-term scarring

and loss of strength in his wrists as a result of the tight strapping of the handcuffs.

Defendants present a far more detailed account of what transpired within the

emergency room. Mark Drafton, a hospital employee and licensed paramedic, was told by

the paramedic who brought Eller into the hospital that Eller was “ETOH positive,” meaning

he was possibly drunk.1

 Drafton informed Eller that he would be taking Eller’s vital signs,

but Eller resisted, removing the blood pressure cuff and hanging it on the side of the gurney;

Drafton tried again, and Eller again removed the cuff and said, “Fuck you.” Drafton then

informed the charge nurse, Louise Burns, that Eller was being uncooperative, and asked for

others to watch Eller in the event Drafton needed help preventing him from straying into

areas occupied by other patients. 

According to Defendants, Eller then arose from his gurney and began walking toward

Patient Room 3, which was directly across from his gurney. Drafton stood in Eller’s way

and asked him to return to his gurney. Eller replied, “Fuck you,” and began to approach the

Case 3:09-cv-01094-TEH Document 67 Filed 06/10/10 Page 3 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

neighboring Patient Room 4, where again Drafton intervened and instructed him to return to

the gurney, which Eller finally did. Musaelian was in Patient Room 4 at the time and heard

the commotion outside; she opened the curtain and saw Eller approaching her room as

Drafton and other staff members tried to get him to return to his bed. Musaelian

characterized Eller’s demeanor as “very assertive, aggressive, threatening,” and said she was

scared of him. Although Drafton did not fear for his personal safety, he was concerned about

the safety of the patients in the neighboring hospital rooms. Drafton then made eye contact

with Isachsen and summoned him for assistance; Musaelian also recalls waving down

Isachsen and Philp, both of whom were in uniform and at the hospital for unrelated matters. 

Isachsen noted in his incident report that he had heard staff telling Eller to lay down on the

gurney moments before both Drafton and Burns requested his assistance.

Isachsen initially approached and stood by without doing anything further, believing

that the presence of a uniformed officer by itself could resolve the matter. He intervened

only after hearing emergency room staff ask Eller to remain in place and observing Eller

disobey those instructions. Isachsen told Eller to slide back onto the gurney, said he could

not roam about the emergency room, and advised him that he could be arrested for causing a

disturbance in the emergency room if he failed to comply. Isachsen never asked Eller why

he sought to get up from the gurney. Eller responded, “Fuck you,” slid off the gurney and

stood. Isachsen then reached to grab Eller’s right hand to place him in a twist lock and gain

his compliance, but Eller twisted backwards, appearing to swing at Isachsen. Drafton

observed Eller lunge towards Isachsen. Philp, on Isachsen’s left side, tried to grab Eller’s

left hand, but Eller pushed Philp backwards about three feet. Eller himself came off balance

at that point, which allowed Isachsen and Philp to bring him to the ground. Although

Isachsen told Eller to stop resisting and attempted to place him in handcuffing position, Eller

continued to ignore his commands. As Philp attempted to get Eller’s hands into handcuffs,

Isachsen warned Eller that he would use the Taser if Eller did not comply. Eller again failed

to respond. 

Case 3:09-cv-01094-TEH Document 67 Filed 06/10/10 Page 4 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

Isachsen withdrew his Taser, removed the tip, and deployed it on the upper right side

of Eller’s back as Eller rolled back and forth, which did not appear to have any effect;

Isachsen redeployed the Taser lower on Eller’s back, which was effective. According to

Defendants, the Taser was deployed in “drive stun” mode, in which metal contacts are

pressed directly against the suspect, releasing electrical energy that causes localized pain but

does not disrupt the nervous system. The more debilitating Taser mode is “dart probe,” in

which two darts are fired over a distance of 20 to 25 feet, lodge into the skin with barbed

hooks, and discharge a jolt of electrical energy that disrupts voluntary muscle control; that

mode was not used on Eller, Defendants assert. The officers were then able to get Eller into

handcuffs, using two sets of cuffs that were latched together due to Eller’s large size.

Eller was again examined by Dr. Chuang, who did not chart or recall having removed

any Taser dart probes or treating any puncture wounds on Eller’s chest. He was discharged

from the Hospital, transported to Sonoma County Detention Center, and charged with

obstructing and assaulting a police officer, Cal. Pen. Code §§ 148(a)(1), 241. The criminal

charges were dismissed after a hearing in state court on June 27, 2007.

Eller commenced this action in the Superior Court of California, Sonoma County, on

October 29, 2008. The matter was removed to this Court on March 12, 2009. In addition to

naming the present Defendants, Eller also brought claims against the Hospital and Drafton,

which he voluntarily dismissed on March 1, 2010. He brings the remaining two claims for

excessive force and unreasonable search and seizure pursuant to 42 U.S.C. § 1983. 

Defendants moved for summary judgment on April 19, 2010, and Eller opposed the motion.

LEGAL STANDARD

Summary judgment is appropriate when there is no genuine dispute as to material

facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 

Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is

sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The

Case 3:09-cv-01094-TEH Document 67 Filed 06/10/10 Page 5 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

Court may not weigh the evidence and must view the evidence in the light most favorable to

the nonmoving party. Id. at 255. The Court’s inquiry is “whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Id. at 251-52.

A party seeking summary judgment bears the initial burden of informing the court of

the basis for its motion, and of identifying those portions of the pleadings and discovery

responses that “demonstrate the absence of a genuine issue of material fact.” Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof

at trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other

than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.

2007). However, on an issue for which its opponent will have the burden of proof at trial, the

moving party can prevail merely by “pointing out . . . that there is an absence of evidence to

support the nonmoving party’s case.” Celotex, 477 U.S. at 325. If the moving party meets

its initial burden, the opposing party must then “set out specific facts showing a genuine

issue for trial” to defeat the motion. Fed. R. Civ. P. 56(e)(2); Anderson, 477 U.S. at 256.

DISCUSSION

The Fourth Amendment protects the “right of the people to be secure in their persons .

. . against unreasonable searches and seizures,” and is applicable to the states through the

Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). Section 1983 imposes

liability on a person who, under color of state law, “subjects, or causes to be subjected, any

citizen . . . or other person . . . to the deprivation of any rights” guaranteed by federal law. 42

U.S.C. § 1983. Eller brings two claims under § 1983 for unlawful seizure and unreasonable

use of force in violation of the Fourth and Fourteenth Amendments.

Defendants advance two bases for summary judgment in their favor. First, they argue

that no constitutional violation occurred because the officers’ detention of Eller – and their

use of force in effecting that detention – were both objectively reasonable. Second, even if

the facts could support a constitutional claim, Defendants contend that they are protected by

Case 3:09-cv-01094-TEH Document 67 Filed 06/10/10 Page 6 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

the doctrine of qualified immunity. The Court begins by evaluating the officers’ assertion of

qualified immunity, which – if meritorious – would result in dismissal. If this motion is not

resolved on qualified immunity grounds, the Court will then decide if Eller’s constitutional

claims withstand summary judgment.

“Qualified immunity is ‘an entitlement not to stand trial or face the other burdens of

litigation.’” Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S.

511, 526 (1985)). A police officer enjoys qualified immunity “unless the official’s conduct

violated a clearly established constitutional right.” Pearson v. Callahan, --- U.S. ----, 129 S.

Ct. 808, 816 (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.” Brooks v. City of Seattle, 599

F.3d 1018, 1022 (9th Cir. 2010). Qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341

(1986). Since the entitlement of qualified immunity is “an immunity from suit rather than a

mere defense to liability,” it is “effectively lost if a case is erroneously permitted to go to

trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

The Supreme Court, in Saucier v. Katz, set forth a “two-step sequence for resolving

government officials’ qualified immunity claims.” Pearson, 129 S. Ct. at 815. A court must

first decide whether “the facts alleged show the officer’s conduct violated a constitutional

right,” and if so, then asks “whether the right was clearly established” such that “it would be

clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” 

Saucier, 533 U.S. at 201-02. A defendant does not receive qualified immunity if both

questions are answered in the affirmative. The Supreme Court later ruled in Pearson that the

sequence of two steps, while “often beneficial,” “should no longer be regarded as

mandatory.” 129 S. Ct. at 818. In so ruling, the Court acknowledged criticism of the

two-step sequence as forcing courts “unnecessarily to decide difficult constitutional

questions when there is available an easier basis for the decision (e.g., qualified immunity)

that will satisfactorily resolve the case before the court.” Id. at 817-18 (quoting Brosseau v.

Case 3:09-cv-01094-TEH Document 67 Filed 06/10/10 Page 7 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

Haugen, 543 U.S. 194, 201-02 (Breyer, J., joined by Scalia and Ginsburg, JJ., concurring)). 

Judges should “exercise their sound discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first in light of the circumstances in the

particular case at hand.” Id. at 818.

This Court begins with the second prong, and asks whether Isachsen and Philp

violated any “clearly established” right. For a right to be “clearly established” for purposes

of qualified immunity, the “contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.” Anderson v. Creighton,

483 U.S. 635, 640 (1987). Officials are entitled to immunity even if they “‘mistakenly

conclude that probable cause is present,’” so long as that mistake was reasonable. Hunter v.

Bryant, 502 U.S. 224, 227 (1991) (quoting Creighton, 483 U.S. at 641). To assess qualified

immunity, the Court must ask “the objective (albeit fact-specific) question whether a

reasonable officer could have believed [the officers’ actions] to be lawful, in light of clearly

established law and the information the . . . officers possessed.” Creighton, 483 U.S. at 641. 

Since Eller alleges two constitutional violations – an unlawful seizure, and the use of

excessive force – the Court will ask this question of each.

I. Unreasonable Seizure

The Fourth Amendment’s prohibition of unreasonable seizures is not limited to

arrests, but rather applies to all seizures, which occur “whenever a police officer accosts an

individual and restrains his freedom to walk away.” Terry v. Ohio, 392 U.S. 1, 16 (1968). 

The critical issue in assessing allegations of Fourth Amendment violations is reasonableness,

for “what the Constitution forbids is not all searches and seizures, but unreasonable searches

and seizures.” Elkins v. United States, 364 U.S. 206, 222 (1960) (emphasis added). The

quantum of information that a police officer must possess to justify a seizure depends on the

intrusiveness of the interaction. A mere “encounter” – which occurs when “a reasonable

person would feel free to decline the officers’ requests or otherwise terminate the encounter”

– is not a seizure at all and does not implicate the Fourth Amendment. Florida v. Bostick,

Case 3:09-cv-01094-TEH Document 67 Filed 06/10/10 Page 8 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

501 U.S. 429, 436 (1991); see also Florida v. Royer, 460 U.S. 491, 498 (1983) (“If there is

no detention – no seizure within the meaning of the Fourth Amendment – then no

constitutional rights have been infringed.”). A “detention” – also characterized as an

“investigatory stop” or a “Terry stop” – is a seizure that “fall[s] short of traditional arrest”

and is governed by “a standard less than probable cause.” United States v. Arvizu, 534 U.S.

266, 273 (2002). In that context, “the Fourth Amendment is satisfied if the officer’s action is

supported by reasonable suspicion to believe that criminal activity ‘may be afoot.’” Id. at 273

(quoting Terry, 392 U.S. at 30). “[R]easonable suspicion of criminal activity warrants a

temporary seizure for the purpose of questioning limited to the purpose of the stop.” Royer,

460 U.S. at 498. The most intrusive variety of seizure is an arrest, which must be supported

by probable cause. United States v. Watson, 423 U.S. 411, 417 (1976). An arrest has

occurred “where force is used such that the innocent person could reasonably have believed

he was not free to go and that he was being taken into custody indefinitely.” Kraus v. County

of Pierce, 793 F.2d 1105, 1109 (9th Cir. 1986). A court must consider the “totality of the

circumstances” to determine if an individual “was arrested or merely detained.” United

States v. Bravo, 295 F.3d 1002, 1010 (9th Cir. 2002).

It is undisputed that Eller was subject to seizure from the moment Isachsen ordered

him to remain on the gurney. What the parties dispute is the character of that seizure. 

Defendants argue that Eller’s initial confinement to the gurney constituted an investigative

stop, for which the officers needed only a reasonable suspicion of criminal activity. 

Defendants assert that Isachsen satisfied this standard based on his reasonable suspicion that

Eller willfully resisted or obstructed an emergency medical technician in discharge of his

duty (Cal. Pen. Code § 148); that he was publicly drunk (Cal. Pen. Code § 647(f)); and that

he violated the rules of a health care facility and engaged in trespass (Cal. Pen. Code §§ 602,

602.1, and 602.11). Eller argues that confinement to his gurney constituted an arrest and

therefore was unconstitutional absent a showing of probable cause.

Since this issue is before the Court on the question of qualified immunity, the Court

must ask whether a reasonable officer would have believed that Eller’s confinement to the

Case 3:09-cv-01094-TEH Document 67 Filed 06/10/10 Page 9 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10

gurney constituted a lawful investigatory stop. To make a so-called “Terry stop,” there must

be “articulable facts supporting a reasonable suspicion that a person has committed a

criminal offense.” Hayes v. Florida, 470 U.S. 811, 816 (1985); see also Terry, 392 U.S. at

21. “Reasonable suspicion” is a low bar that may be satisfied, for example, by three men’s

“oft-repeated reconnaissance of [a] store window” (creating reasonable suspicion that they

were planning a daylight robbery), Terry, 392 U.S. at 6, 28, or by a driver sleeping behind

the wheel of a car at 8pm, breathing rapidly, and responding testily to an officer’s inquiry

(creating reasonable suspicion that he was under the influence of illegal stimulants), Ramirez

v. City of Buena Park, 560 F.3d 1012, 1021 (9th Cir. 2009). A “brief stop,” which allows the

officer to “maintain the status quo momentarily while obtaining more information, may be

most reasonable in light of the facts known to the officer at the time.” Adams v. Williams,

407 U.S. 143, 146 (1972). 

Isachsen’s statements to Eller – explaining that he could move once he was seen by a

doctor – made clear that his detention was only temporary. Since a reasonable person would

not have believed that he was being taken indefinitely into custody at that time, the seizure

did not rise to an arrest. Isachsen therefore needed only a reasonable suspicion of criminal

activity to justify Eller’s detention.

The undisputed facts establish that multiple members of the Hospital staff sought the

assistance of Isachsen and Philp in subduing Eller. Both Drafton and Musaelian testified that

they had summoned the officers by making eye contact or waving them down, and Isachsen’s

incident report indicates that Burns and Drafton approached him for help. Eller offered no

evidence refuting these accounts. At that point, a reasonable officer could have concluded

that an investigatory stop was justified by the reasonable suspicion that criminal activity was

afoot – for example, that Eller had violated California Penal Code section 148 by resisting or

obstructing an emergency medical technician. Restricting Eller to the gurney was necessary

“to allow the officer to pursue his investigation without fear of violence.” United States v.

Taylor, 716 F.2d 701, 708 (9th Cir. 1983). “Police officers are entitled to employ reasonable

methods to protect themselves and others in potentially dangerous situations.” Allen v. City

Case 3:09-cv-01094-TEH Document 67 Filed 06/10/10 Page 10 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

 Eller argued at hearing that, since Isachsen did not even question Eller during his

detention, no investigation was conducted and his seizure could not be justified as an

investigatory detention. However, such detentions are also justified by the need to maintain

the status quo and ensure the safety of the officers and those around them.

11

of Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995). Officers need not avail themselves of

the “least intrusive means of responding to an exigent situation,” but rather must act

reasonably under the circumstances. Id.

Isachsen’s conduct in detaining Eller at that point was a reasonable response justified

by concern for the safety of other patients and staff. In an overcrowded hospital setting, an

unruly patient could threaten or harm individuals, damage equipment, and cause hazardous

conditions. Since a reasonable officer would have believed such a seizure to be lawful,

Isachsen and (to the extent he was involved) Philp have qualified immunity over Plaintiff’s

unlawful seizure claim based on his confinement to the gurney.2

The seizure inquiry does not end there, however. Even if Eller was initially only

subject to an investigatory detention, Defendants do not dispute that the interaction escalated

to an arrest once the officers used force to physically restrain him. At that point, probable

cause was clearly required. “[A]n arrest without probable cause violates the fourth

amendment and gives rise to a claim for damages under § 1983.” Borunda v. Richmond, 885

F.2d 1384, 1391 (9th Cir. 1988). For Isachsen and Philp to benefit from qualified immunity

for the arrest, Defendants must demonstrate that reasonable officers would have believed the

arrest to be supported by probable cause. “The test for probable cause is whether facts and

circumstances within the officers’ knowledge are sufficient to warrant a prudent person, or

one of reasonable caution, to believe, in the circumstances shown, that the suspect has

committed, is committing or is about to commit an offense.” Menotti v. City of Seattle, 409

F.3d 1113, 1149 (9th Cir. 2005). “The validity of the arrest does not depend on whether the

suspect actually committed a crime; the mere fact that the suspect is later acquitted of the

offense for which he is arrested is irrelevant to the validity of the arrest.” Michigan v.

DeFillippo, 443 U.S. 31, 36 (1979).

Case 3:09-cv-01094-TEH Document 67 Filed 06/10/10 Page 11 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

12

Defendants argue that Isachsen had probable cause to arrest Eller “for obstruction”

once he defied Isachsen’s orders. A violation of California Penal Code section 148(a), for

obstructing a peace officer, is comprised of three elements: “(1) the defendant willfully

resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the

performance of his or her duties, and (3) the defendant knew or reasonably should have

known that the other person was a peace officer engaged in the performance of his or her

duties.” People v. Simons, 42 Cal. App. 4th 1100, 1108-09 (1996). Again, for purposes of

qualified immunity, the key question is whether a reasonable officer would have concluded

that he had probable cause to arrest Eller at this point. Both Eller and Defendants agree that,

immediately before his arrest, Eller defied Isachsen’s order to remain on the gurney – thereby

obstructing a uniformed officer while he was clearly engaging in the performance of his

duties. Although Eller contends that he only stood to use the restroom, those facts do not

alter the calculus for probable cause. It is not unreasonable for an officer engaged in an

investigatory stop to momentarily deny a request to use the restroom until the detention is

complete. From a reasonable officer’s perspective, it was lawful to escalate the investigatory

stop to an arrest for obstruction once Eller acted contrary to Isachsen’s orders. Isachsen and

Philp therefore have qualified immunity with respect to Eller’s claim for unlawful seizure,

and summary judgment is GRANTED to Defendants as to this claim.

II. Excessive Force

For allegations of unreasonable force in violation of the Fourth Amendment, “the

qualified immunity inquiry is the same as the inquiry made on the merits.” Scott v. Henrich,

39 F.3d 912, 914 (9th Cir. 1994) (quoting Hopkins v. Andaya, 958 F.2d 881, 885 n.3 (9th Cir.

1992)). Excessive force claims are judged under an “objective reasonableness” standard,

Scott v. Harris, 550 U.S. 372, 381 (2007), which entails “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,” Graham v. Connor, 490 U.S. 386, 396

(1989) (internal citations and quotation marks omitted). The reasonableness standard evades

Case 3:09-cv-01094-TEH Document 67 Filed 06/10/10 Page 12 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

13

“precise definition or mechanical application.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). 

As a result, assessing whether any given use of force is reasonable “requires careful 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.” 

Graham, 490 U.S. at 396. “These factors should be considered in relation to the amount of

force used.” Brooks v. City of Seattle, 599 F.3d 1018, 1025 (9th Cir. 2010). “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 397.

The issue of excessive force is independent from that of probable cause. Force is not

automatically unreasonable simply because probable cause is lacking. Beier v. City of

Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004). “Indeed, an arrestee’s resistance may

support the use of force regardless of whether probable cause existed.” Brooks, 599 F.3d at

1022. “The absence of probable cause does not grant an individual the right to offer

resistance.” Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 921 (9th Cir. 2001).

Defendants characterize the conduct of Isachsen and Philp as an appropriate

“escalation of force,” beginning with an officer’s uniform presence and increasing to verbal

tactics, firm grip, physical force, and finally an eight-second application of the Taser in drive

stun mode. They also stress that the Taser was used only in the drive stun mode,

representing a far lower quantum of force than the dart probe mode. See Brooks, 599 F.3d at

1027 (“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.”). In

Brooks, the Ninth Circuit concluded that it was not unconstitutional to deploy a Taser three

times in drive-stun mode against a pregnant woman who refused to sign a notice of infraction

during a traffic stop. The court characterized Brooks as presenting a “less-than-intermediate

use of force, prefaced by warnings and other attempts to obtain compliance, against a suspect

Case 3:09-cv-01094-TEH Document 67 Filed 06/10/10 Page 13 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

accused of a minor crime, but actively resisting arrest, out of police control, and posing some

slight threat to officers.” Id. at 1030-31. In light of Brooks, Defendants argue, the use of

force by Isachsen and Philp was clearly not a constitutional violation.

Eller’s account of the force used differs in several respects from that of Defendants,

however. First, Eller contends that the Taser was deployed in immediate response to his

standing up, without any kind of warning or escalation in force. Eller also claims that the

Taser was used in dart probe mode – which causes “intense” pain that “is felt throughout the

body” and “is administered by effectively commandeering the victim’s muscles and nerves,”

Bryan v. McPherson, 590 F.3d 767, 774 (9th Cir. 2009) – and that he was struck in the chest

rather than the back.

Construing the facts in a light most favorable to Eller, the Court cannot conclude that

the officers are entitled to qualified immunity on the excessive force claim, nor can it resolve

the question of whether there was a constitutional violation. A reasonable officer would not

have concluded that the immediate deployment of the Taser, without warning – as Eller

alleges occurred – was appropriate in this context. “[W]arnings should be given, when

feasible, if the use of force may result in serious injury.” Deorle v. Rutherford, 272 F.3d

1272, 1284 (9th Cir. 2001). Because an inquiry into excessive force “nearly always requires

a jury to sift through disputed factual contentions, and to draw inferences therefrom, we have

held on many occasions that summary judgment or judgment as a matter of law in excessive

force cases should be granted sparingly.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002). 

“This is because such cases almost always turn on a jury’s credibility determinations.” Smith

v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005). “[W]hether the force used to effect an

arrest is reasonable is ordinarily a question of fact for the jury. Although excessive force

cases can be decided as a matter of law, they rarely are because the Fourth Amendment test

for reasonableness is inherently fact-specific.” Headwaters Forest Defense v. County of

Humboldt, 240 F.3d 1185, 1198 (9th Cir. 2001) (internal citations and quotation marks

omitted). Summary judgment is therefore DENIED as to this claim.

Case 3:09-cv-01094-TEH Document 67 Filed 06/10/10 Page 14 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

15

III. Municipal Liability

Eller also seeks to hold the City and SRPD liable for the constitutional violations

alleged. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Municipal liability in

§ 1983 actions is “only appropriate where a plaintiff has shown that a constitutional

deprivation was directly caused by a municipal policy.” Nadell v. Las Vegas Metro. Police

Dep’t, 268 F.3d 924, 929 (9th Cir. 2001). Four conditions must be satisfied to hold the

municipality liable for failing to act to preserve constitutional rights: “(1) that [the plaintiff]

possessed a constitutional right of which he was deprived; (2) that the municipality had a

policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s constitutional

right; and (4) that the policy is the moving force behind the constitutional violation.” Van

Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996) (internal citations and quotation

marks omitted).

On the date of Eller’s arrest, the SRPD’s policy on the “use of force” and the “use of

advanced tasers” was set out in two general orders. Following the arrest, a supervising

officer with the SRPD concluded that Isachsen’s use of the Taser was in compliance with

that policy. Defendants argue that no evidence suggests that the policy amounts to a

“deliberate indifference” to Eller’s constitutional rights. Eller contends that, since the SRPD

determined that the officers’ use of force complied with its policy, the policy must be the

“moving force behind” the alleged constitutional violations. Eller also points out that

Isachsen is a defense tactics instructor for the SRPD, meaning he instructs others on the use

of the Taser – which Eller treats as evidence that the SRPD fails to properly train its officers

on the use of force.

The Court agrees with Defendants that Eller has failed to present any evidence to

satisfy the “deliberate indifference” inquiry. The use of force policy sets forth the standard

for reasonable force under California Penal Code section 835a and the Supreme Court’s

decision in Graham v. Connor, 490 U.S. 386, 388 (1989), and instructs officers on

compliance with those standards. Even if Eller were to prevail on his excessive force claim

before a jury, a “plaintiff cannot prove the existence of a municipal policy or custom based

Case 3:09-cv-01094-TEH Document 67 Filed 06/10/10 Page 15 of 16
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

16

solely on the occurrence of a single incident or unconstitutional action by a

non-policymaking employee.” Nadell, 268 F.3d at 929. The SRPD’s conclusion that

appropriate force was used here, and Isachsen’s training of other officers on the use of force,

do not suggest that the municipality has a policy amounting to deliberate indifference to

Eller’s constitutional rights. Eller has failed to set out any facts showing a genuine issue for

trial on the question of municipal liability. Summary judgment is therefore GRANTED to

Defendants on this issue.

CONCLUSION

For the reasons set forth above, summary judgment is GRANTED to Defendants on

the unlawful seizure claim and the issue of municipal liability, but DENIED as to the

excessive force claim. 

IT IS SO ORDERED.

Dated: 6/10/10 

THELTON E. HENDERSON, JUDGE

UNITED STATES DISTRICT COURT

Case 3:09-cv-01094-TEH Document 67 Filed 06/10/10 Page 16 of 16