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ORDER GRANTING SUMMARY JUDGMENT

& MOTION TO DISMISS – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MICHAEL MCDONALD,

Plaintiff,

v.

KEITH PON, et al.,

Defendants.

CASE NO. C05-1832JLR

ORDER GRANTING SUMMARY

JUDGMENT AND MOTION TO

DISMISS

I. INTRODUCTION

This matter comes before the court upon a Report and Recommendation (“R&R”)

(Dkt. # 71) on Defendants’ motion for summary judgment (Dkt. # 53) and Defendant

Michael Monico’s motion to dismiss (Dkt. # 67). Magistrate Judge Donohue

recommends granting in part and denying in part the motion for summary judgment and

granting the motion to dismiss. Having reviewed the R&R, the objections, and the

balance of the record, the court adopts in part and rejects in part the R&R. The court

GRANTS Defendants’ motion for summary judgment and GRANTS Mr. Monico’s

motion to dismiss. 

II. BACKGROUND

The R&R provides a thorough background of this matter, which the court

incorporates by reference. The court provides a summary here.

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ORDER GRANTING SUMMARY JUDGMENT

& MOTION TO DISMISS – 2

Pro se Plaintiff Michael McDonald brought a 42 U.S.C. § 1983 action against

Federal Way police officers Keith Pon, Mike Monico, and Mike Sant for alleged

constitutional violations they committed while arresting Mr. McDonald. See Sec. Am.

Compl. at 2-6. 

On January 24, 2003, loss prevention agents (“LPAs”) at the Seatac Mall Sears

reported to Federal Way Police that they suspected Mr. McDonald of shoplifting. Pon

Decl. ¶ 3. Federal Way Police Dispatch reported Mr. McDonald’s description to Officer

Pon, who radioed for back-up and proceeded to Sears’ north doors. Id. LPAs advised

Officer Pon that Mr. McDonald was pushing a shopping cart of unpaid merchandise

toward Sears’ west doors. Id. at ¶ 4. Officer Pon was about a hundred feet from the west

doors when he saw Mr. McDonald exit the Sears. Id. Officer Pon observed the

following chain of events: an LPA attempted to physically apprehend Mr. McDonald; Mr.

McDonald struggled with and punched the LPA in the face; and a second LPA rushed in

and tackled them both to the ground. Id.

Officer Pon instructed the LPAs to get off of Mr. McDonald. Id. At this point,

Mr. McDonald stood up. Resp. Mot. for Summ. J. (McDonald Decl. at 3). Officer Pon

ordered Mr. McDonald to the ground. Pon Decl. ¶ 4. When Mr. McDonald failed to

comply, Officer Pon deployed his Taser. Id. After the first Taser cycle, surveillance

video depicts Mr. McDonald moving back toward the west doors where he struggled

again with an LPA and fell down. See Miller Decl., Ex. A (surveillance video). Officers

Sant and Monico arrived on scene, and all three ordered Mr. McDonald to roll onto his

stomach and extend his arms. Pon Decl. ¶ 5. Mr. McDonald appeared to be verbally

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1

 Mr. McDonald objects to the characterization of his verbal “outburst” as combative. 

Obj. to R&R at 2-3. He does not dispute, however, that he was “upset” by the application of the

first Taser cycle and made his state of mind clearly and forcefully known. See id.

2

 Mr. McDonald does not materially contradict Officer Pon’s version of the events. For

example, Mr. McDonald admits going to Sears with the intent to shoplift. See Resp. Mot. for

Summ. J. (McDonald Decl. at 2). He was aware that, based on his actions, Sears’ personnel

would likely suspect him of shoplifting. See id. (McDonald Decl. at 2-3). He acknowledged that

he pushed a shopping cart of unpaid merchandise out Sears’ west doors. See id. (McDonald

Decl. at 3). Mr. McDonald stated that he used “impact force” on the LPA who tried to

apprehend him. See id. (McDonald Decl. at 3). 

3

 Apparently, the Michael Monico that Mr. McDonald served is not the same Mike

Monico that was involved in Mr. McDonald’s arrest. 

ORDER GRANTING SUMMARY JUDGMENT

& MOTION TO DISMISS – 3

combative and ignored the officers’ orders.1 Id. Officer Pon deployed another fivesecond Taser cycle. Id. Subsequently, the officers arrested Mr. McDonald without

incident.2

 Id. 

Defendants Pon, Sant, and Monico filed a motion for summary judgment, and

Defendant Michael Monico filed a motion to dismiss the claims against him.3

 The court

adopts the R&R except as to the magistrate judge’s analysis and conclusions regarding

the denial of summary judgment to Officer Pon. The court provides its analysis only for

those aspects of the R&R that it does not adopt. 

III. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate if the evidence, when viewed in the light most

favorable to the non-moving party, demonstrates there is no genuine issue of material

fact. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v.

County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007). The moving party bears the

initial burden of showing there is no material factual dispute and he or she is entitled to

prevail as a matter of law. Celotex, 477 U.S. at 323. If the moving party meets its

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ORDER GRANTING SUMMARY JUDGMENT

& MOTION TO DISMISS – 4

burden, the nonmoving party must go beyond the pleadings and identify facts which show

a genuine issue for trial. Cline v. Indus. Maint. Eng’g. & Contracting Co., 200 F.3d

1223, 1229 (9th Cir. 2000). 

B. Excessive Force

Mr. McDonald contends that Officer Pon used excessive force in effectuating Mr.

McDonald’s arrest. Sec. Am. Compl. at 6. All claims of excessive force are analyzed

under the Fourth Amendment’s “reasonableness” standard. Graham v. Connor, 490 U.S.

386, 395 (1989). To determine whether force is reasonable, a court must carefully

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 (internal

quotation and citations omitted). Among the factors to consider are the severity of the

crime, whether the suspect poses an immediate threat to the safety of the officers or

others, and whether the suspect is actively resisting arrest or attempting to evade arrest. 

Id. A court may also consider the availability of alternative methods of capturing or

subduing a suspect in determining reasonableness. See Smith v. City of Hemet, 394 F.3d

689, 701 (9th Cir. 2005).

The reasonableness inquiry is objective and should be evaluated “from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Billington v. Smith, 292 F.3d 1177, 1184 (9th Cir. 2002) (internal quotation

and citation omitted). “The calculus of reasonableness must embody allowance for the

fact that police officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving—about the amount of force

that is necessary in a particular situation.” Graham, 490 U.S. at 396-97. Police officers

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4

 Impact force is more likely than other force options to create lasting injury because the

officer has to strike the suspect repeatedly to damage some portion of the suspect’s body or

generate enough pain to persuade the suspect to comply. Myers Decl., Ex. A (Expert Report at

4). 

5

 Physical body force is effected by using body weight and muscle strength to wrestle or

submit a suspect into compliance. Myers Decl., Ex. A (Expert Report at 5). Body force requires

close proximity; thus, this option carries a greater potential for injury to the officer should the

force prove ineffective against the suspect. Id. 

6

 Chemical agents inflame the mucous membranes, impairing a suspect’s vision and

breathing, and they carry a lengthy decontamination time. Myers Decl., Ex. A (Expert Report at

5).

7

 A Taser may cause some superficial injuries, such as small abrasions and skin markings. 

See Myers Decl., Ex. A (Expert Report at 7-8).

ORDER GRANTING SUMMARY JUDGMENT

& MOTION TO DISMISS – 5

necessarily have the right to use a degree of physical coercion or threat of such force to

effectuate an arrest. See id. at 396. 

Before turning to reasonableness, the court examines the quantum of force used on

Mr. McDonald. See, e.g., City of Hemet, 394 F.3d at 701. Taser use is considered an

intermediate control tactic. See Myers Decl., Ex. A (Expert Report at 12). Officers

consider the following non-lethal force options: (1) impact force4

, including baton strikes,

punches, and kicks; (2) physical body force5

; (3) chemical agents6; and (4) Taser. Id. at

4. A Taser works by causing involuntary muscle contractions, similar to muscle cramps,

that preclude the suspect from engaging in the type of coordinated motion necessary to

fight or flee. Id. at 6-7. Following a Taser cycle, the suspect’s muscles may feel

fatigued, but the nerves and body are left undamaged.7 Id. at 7. 

It is undisputed that Officer Pon employed only Taser cycles. It was the LPAs

who grappled repeatedly with Mr. McDonald. Furthermore, other than superficial skin

markings and the temporary pain associated with muscle contractions, there are no

indications that Mr. McDonald suffered any injuries from the Taser applications. 

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8

 Robbery is defined, in relevant part, as follows:

A person commits robbery when he unlawfully takes personal property from the

person of another or in his presence against his will by the use or threatened use of

immediate force, violence, or fear of injury to that person or his property or the

person or property of anyone. Such force or fear must be used to obtain or retain

possession of the property, or to prevent or overcome resistance to the taking; in

either of which cases the degree of force is immaterial. 

RCW § 9A.56.190.

ORDER GRANTING SUMMARY JUDGMENT

& MOTION TO DISMISS – 6

Considering the facts and available options, the quantum of force Officer Pon used to

arrest Mr. McDonald was not severe. The court considers the Graham factors in this

light.

1. Severity of the Crime

In determining whether Officer’s Pon’s use of force was reasonable, the court first

considers the severity of the crime under investigation. See Graham, 490 U.S. at 396. 

Immediately prior to the Tasing incident, police dispatch reported to Officer Pon that Mr.

McDonald was suspected of shoplifting. Pon Decl. ¶ 3. Officer Pon saw Mr. McDonald

exit the Sears with a shopping cart of merchandise and begin to grapple with an LPA. Id.

at ¶ 4. Officer Pon observed Mr. McDonald punch the LPA in the face. Id. This punch

increased the severity of the suspected crime from shoplifting to a possible first degree

robbery. A person is guilty of robbery in the first degree if, in the commission of a

robbery8

 or of immediate flight therefrom, he or she inflicts bodily injury. RCW §

9A.56.200(1)(a)(iii). First degree robbery is a class A felony. RCW § 9A.56.200(2). 

Thus, an objectively reasonable officer in Officer Pon’s shoes would have been required

to make use-of-force decisions in response to a possible class A felony. 

2. Threat to Officers and Others

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ORDER GRANTING SUMMARY JUDGMENT

& MOTION TO DISMISS – 7

The second Graham factor is whether the suspect poses an immediate threat to the

safety of the officers or others. 490 U.S. at 396. From Officer Pon’s perspective, Mr.

McDonald had already punched an LPA in the face, which would demonstrate to an

objectively reasonable officer that Mr. McDonald was willing to resort to violence. See

Pon Decl. ¶ 4. In addition, Mr. McDonald appeared to be verbally combative and ignored

Officer Pon’s commands. Id. at 4-5. Given these facts, Officer Pon reasonably could

have believed that Mr. McDonald posed an immediate threat to the safety of the officers

and the LPAs.

3. Resisting or Evading Arrest

The third factor under Graham is whether the suspect actively resisted arrest or

attempted to evade arrest by flight. 490 U.S. at 396. Refusing to comply with an

officer’s lawful commands, or making movements or verbal gestures that indicate an

unwillingness to cooperate with a police officer’s lawful commands can constitute active

resistance. See Greene v. Barber, 310 F.3d 889, 898 (6th Cir. 2002); see also Draper v.

Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004). Because Mr. McDonald punched an

LPA in the face, an officer in Officer Pon’s shoes reasonably could have believed that

Mr. McDonald was attempting to avoid apprehension, and that he would continue to take

steps, including resorting to violence, to avoid arrest. 

Throughout the incident, Mr. McDonald failed to comply with Officer Pon’s

lawful commands. Once Officer Pon ordered the LPAs off of Mr. McDonald, Mr.

McDonald stood up. Resp. Mot. for Summ. J. (McDonald Decl. at 3). Officer Pon

ordered Mr. McDonald to the ground and deployed his Taser only after the directive was

ignored. See Pon Decl. ¶ 4. After the first Taser cycle, surveillance video depicts Mr.

McDonald grappling with another LPA and falling down. See Miller Decl., Ex. A

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ORDER GRANTING SUMMARY JUDGMENT

& MOTION TO DISMISS – 8

(surveillance video). Officers Pon, Sant, and Monico ordered Mr. McDonald to roll onto

his stomach and extend his arms. Pon Decl. ¶ 5. Mr. McDonald was belligerent and

ignored the officers’ orders. Id. Officer Pon deployed another five-second Taser cycle. 

Id. Under these circumstances, Officer Pon reasonably could have believed that Mr.

McDonald was actively resisting arrest.

4. Availability of Alternative Methods 

A court may also consider the availability of alternative methods of capturing or

subduing a suspect in determining reasonableness. See City of Hemet, 394 F.3d at 701. 

Verbal commands alone had proven ineffective against Mr. McDonald, so some level of

force was required. See Pon Decl. ¶¶ 4-5. By using his Taser, Officer Pon was able to

obtain compliance while remaining a safe distance from Mr. McDonald. By comparison,

close proximity would have been necessary for impact or body force, and those options

would have presented a greater risk of lasting injury to both Mr. McDonald and Officer

Pon. See Myers Decl., Ex. A (Expert Report at 4-5). In addition, chemical agents would

have carried a risk of self-contamination, and their use would have required a lengthy

decontamination period. Id. at 5. A reasonable officer on the scene could have believed

that the Taser was the safest and most effective force option available. 

Applying the Graham reasonableness factors to the facts in the light most

favorable to Mr. McDonald, the court concludes that Mr. McDonald has not made out a

Fourth Amendment violation for excessive force. Officer Pon is, therefore, entitled to

summary judgment in his favor. 

C. Qualified Immunity

Even if genuine issues of fact exist as to excessive force, summary judgment is

proper because Officer Pon is entitled to qualified immunity. The determination of

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9

 Although its decision post-dates Mr. McDonald’s arrest, the Eleventh Circuit has held

that an officer’s decision to use his Taser on a non-violent suspect was lawful under the

circumstances because the suspect was hostile, belligerent, and ignored the officer’s commands. 

ORDER GRANTING SUMMARY JUDGMENT

& MOTION TO DISMISS – 9

qualified immunity follows a two-part test. First, the court must consider, in the light

most favorable to Mr. McDonald, whether the facts demonstrate that Officer Pon’s

conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201 (2001). If

no constitutional right was violated, the court need not inquire further. Id. Second, if a

violation can be made out, the court must determine whether the right was clearly

established by asking whether it would be clear to a reasonable officer that his or her

conduct was unlawful in the situation he or she confronted. Id. at 201-02. Even if

Officer Pon would not already be afforded qualified immunity based on the first inquiry,

he is entitled to qualified immunity based on the second inquiry: whether the right at

issue was clearly established at the time of Mr. McDonald’s arrest. 

“Qualified immunity shields an officer from suit when she makes a decision that,

even if constitutionally deficient, reasonably misapprehends the law governing the

circumstances she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004). The

Supreme Court emphasized that this inquiry “must be undertaken in light of the specific

context of the case, not as a broad general proposition; and it too serves to advance

understanding of the law and to allow officers to avoid the burden of trial if qualified

immunity is applicable.” Saucier, 533 U.S. at 201. Qualified immunity operates “to

protect officers from the sometimes hazy border between excessive and acceptable force,

and to ensure that before they are subjected to suit, officers are on notice their conduct is

unlawful.” Id. at 206 (internal citation and quotation omitted).

There was no prior case law or authority that would have put Officer Pon on

notice that using a Taser under these circumstances was clearly unlawful.9

 See id. at 209

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28 See Draper, 369 F.3d at 1278.

ORDER GRANTING SUMMARY JUDGMENT

& MOTION TO DISMISS – 10

(holding that the right in question was not clearly established because “neither respondent

nor the Court of Appeals has identified any case demonstrating a clearly established rule

prohibiting the officer from acting as he did, nor are we aware of any such rule”). Thus,

the right in question was not clearly established at the time of Mr. McDonald’s arrest, and

Officer Pon is entitled to qualified immunity. 

IV. CONCLUSION

For the foregoing reasons, the court adopts in part and rejects in part Judge

Donohue’s R&R (Dkt # 71). The court GRANTS Defendants’ motion for summary

judgment (Dkt. # 53) and GRANTS Defendant Michael Monico’s motion to dismiss (Dkt.

# 67). 

Dated this 14th day of December, 2007.

A JAMES L. ROBART

United States District Judge

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