FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DERRICK SANDERLIN; CAYLA 

SANDERLIN; BREANNA 

CONTRERAS; PIETRO DI 

DONATO; ADIRA SHARKEY; 

JOSEPH STUKES; VERA 

CLANTON, 

Plaintiffs-Appellees, 

 v. 

JASON DWYER; LEE TASSIO; 

JONATHAN MARSHALL; 

MICHAEL PANIGHETTI; JUAN 

AVILA, 

Defendants-Appellants, 

and 

CITY OF SAN JOSE; EDGARDO 

GARCIA; JARED YUEN; 

JONATHAN BYERS; RONNIE A. 

LOPEZ; BRIAN MATCHETT; 

AIDAN GUY; STEVEN GAONA; 

TYLER MORAN, 

No. 23-15487 

D.C. No. 5:20-cv04824-BLF 

OPINION
2 SANDERLIN V. DWYER

Defendants, 

 v. 

NAACP OF SAN JOSE/ SILICON 

VALLEY, 

Third-party-plaintiff.

Appeal from the United States District Court

for the Northern District of California

Beth Labson Freeman, District Judge, Presiding

Argued and Submitted May 7, 2024

San Francisco, California

Filed September 4, 2024

Before: Richard A. Paez, Jacqueline H. Nguyen, and 

Michelle T. Friedland, Circuit Judges.

Opinion by Judge Nguyen
SANDERLIN V. DWYER 3

SUMMARY*

Qualified Immunity / Retaliatory and Excessive Force

The panel affirmed the district court’s denial of qualified 

immunity to San Jose Police Officer Michael Panighetti in 

Derrick Sanderlin’s 42 U.S.C. § 1983 action alleging that 

Panighetti used retaliatory and excessive force against him 

in violation of his First and Fourth Amendment rights.

While attending a protest, Sanderlin was struck in the 

groin by a 40mm foam baton round, fired directly at him by 

Panighetti.

The panel held, that viewing the evidence in the light 

most favorable to Sanderlin, genuine disputes of material 

fact existed as to whether Panighetti’s use of force was 

retaliatory in violation of the First Amendment because 

(1) resolving the disputed facts in Sanderlin’s favor, he was 

engaged in the protected activity of peacefully protesting, 

and (2) it is clearly established that police officers may not 

use their authority to retaliate against individuals for 

protected speech.

The panel held, that viewing the evidence in the light 

most favorable to Sanderlin, genuine disputes of material 

fact existed as to whether Panighetti’s use of force was 

excessive in violation of the Fourth Amendment because 

(1) Panighetti’s act of firing a projectile at Sanderlin 

constituted a seizure under the Fourth Amendment, (2) a 

triable issue of fact existed as to the reasonableness of the 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
4 SANDERLIN V. DWYER

force used by Panighetti, and (3) although subsequent legal 

developments narrowed the scope of seizures under the 

Fourth Amendment, the right violated was clearly 

established at the time of the incident.

COUNSEL

Sarah E. Marinho (argued), Marinho Law Firm, San Jose, 

California; Dmitry Stadlin, Stadlin Law Firm PC, San Jose, 

California; for Plaintiffs-Appellees.

Ardell Johnson (argued); Matthew Pritchard, Sr., Deputy 

City Attorney; Nora Frimann, City Attorney; Office of the 

City Attorney, San Jose, California; for DefendantsAppellants.

OPINION

NGUYEN, Circuit Judge:

In the summer of 2020, millions took to the streets to 

protest the death of George Floyd at the hands of a 

Minneapolis police officer. Plaintiff Derrick Sanderlin 

attended one such protest in San Jose, California. While in 

attendance, Sanderlin was struck in the groin by a 40mm 

foam baton round, fired directly at him by Officer Michael 

Panighetti.

Sanderlin sued, alleging that Panighetti’s use of force 

was retaliatory in violation of the First Amendment and was 

excessive in violation of the Fourth Amendment. Panighetti 

moved for summary judgment, arguing that he was entitled 
SANDERLIN V. DWYER 5

to qualified immunity. The district court denied Panighetti’s 

motion, concluding that genuine disputes of material fact 

existed as to whether Panighetti violated Sanderlin’s clearly 

established rights.

We agree. Viewing the evidence in the light most 

favorable to Sanderlin, as we must at this stage of the 

proceedings, genuine disputes of material fact exist as to 

whether Sanderlin’s First and Fourth Amendment clearly 

established rights were violated. We therefore affirm the 

district court’s denial of qualified immunity. 

Background

A. Factual History

On May 29, 2020, at around 2:00 p.m., a protest started

at San Jose City Hall. Police officers patrolling the scene 

initially reported that the crowd remained peaceful for the 

first hour or so. The crowd eventually marched from City 

Hall down Santa Clara Street onto Highway 101, 

temporarily blocking both northbound and southbound 

lanes. Additional officers were dispatched to assist in the 

response, as some members of the crowd began engaging in 

violent behavior, including smashing vehicles with rocks 

and throwing objects at officers from an overpass.

When Officer Panighetti arrived on the scene at around 

3:30 p.m., he was equipped with a 40mm launcher, capable 

of firing foam baton rounds. According to then-existing San 

Jose Police Department (SJPD) policy, SJPD officers had 

blanket authority to use 40mm foam baton rounds 

throughout the protests as defensive weapons against 

“specific individuals who posed a threat of serious injury to 

the officers or others.” 
6 SANDERLIN V. DWYER

At about 4:30 p.m., officers issued dispersal orders to the 

crowd. The crowd then began to make its way back toward 

City Hall, westbound on Santa Clara Street. Panighetti was 

with a group of police officers who followed the protestors

in a patrol vehicle back in the direction of City Hall. When 

Panighetti reached the intersection of Santa Clara Street and 

8th Street, he was instructed to get out of his vehicle and 

stand behind the skirmish line that began to form. According 

to Panighetti, protestors began throwing various objects at 

him and other police officers. 

Panighetti and other officers continued moving in the 

direction of City Hall. Panighetti testified in his deposition 

that as he approached the intersection of Santa Clara Street 

and 5th Street, he had been monitoring an individual wearing 

a San Francisco 49ers jersey who had been throwing objects 

at police officers and hiding behind corners. When they 

reached the intersection, Panighetti observed that individual 

in the 49ers jersey, along with another person, hiding behind 

the corner of a building. Panighetti claimed that he was able 

to continue to visually monitor the two subjects because the 

building was glass all around the first floor. Panighetti then 

explained that he saw those two subjects holding gallon paint 

cans, and he believed they were poised to throw the paint 

cans at police officers. At one point, the subjects pushed a 

dumpster into the intersection and attempted to hide behind 

it.

At that point, a man later identified as Sanderlin moved 

into the sidewalk while carrying a sign over his head. 

Panighetti claimed that Sanderlin purposefully placed

himself in front of officers to block the two subjects holding 

paint cans and hiding behind the dumpster. In video footage 

captured by Panighetti’s body-worn camera, Sanderlin is 

seen standing on the sidewalk holding a sign, and a dumpster 
SANDERLIN V. DWYER 7

is behind him. The video does not clearly show the two 

subjects allegedly holding paint cans that Panighetti 

describes, though there is clearly a chaotic scene unfolding 

around this encounter. In the video, Panighetti can be heard 

yelling to Sanderlin, “I’m going to hit you, dude. You better 

move!” Sanderlin fails to immediately comply, continuing 

to stand in the sidewalk holding his sign over his head. After

only a few seconds, Panighetti fires a 40mm foam baton at 

Sanderlin, striking him in the groin area. Sanderlin recoils 

from the impact and appears to take a few steps, shifting his 

weight between his feet in pain. He then limps out of the 

middle of the sidewalk, at which point he is no longer visible 

in the video footage.

According to Sanderlin, he and his wife, co-plaintiff 

Cayla Sanderlin, attended the protest on May 29 together. 

His wife indicated that she wanted to leave, but Sanderlin 

felt compelled to stay to show solidarity with his fellow 

demonstrators. At around 6:20 p.m., Sanderlin was standing 

near the intersection of East Santa Clara Street and 5th 

Street. In his declaration, Sanderlin stated that he was not 

posing a threat nor was he invading the personal space of any 

officers or attempting to shield any subjects from the police. 

Sanderlin stated he was merely standing with his hands over 

his head, imploring the officers to stop shooting other 

protestors. Sanderlin further stated he did not hear any 

warnings or instructions to move at the time he was shot by 

Panighetti. Sanderlin asserted that after Panighetti shot him, 

he fell to the ground immobile, and no officers rendered aid.

His wife found him lying alone near the intersection of East 

Santa Clara Street and 5th Street, and she helped him stand 

and walk away. As a result of being shot in the groin, 

Sanderlin suffered severe injuries that required emergency 

surgery.
8 SANDERLIN V. DWYER

B. Procedural History

Sanderlin filed suit against Panighetti under 42 U.S.C. 

§ 1983, alleging that Panighetti had used excessive force 

against him because he was protesting the police and that

Panighetti’s acts therefore violated his rights under the First 

and Fourth Amendments of the United States Constitution.1 

Panighetti moved for summary judgment on both claims. 

Regarding the First Amendment claim, Panighetti argued 

that his motivation for shooting Sanderlin was not 

retaliatory. Regarding the Fourth Amendment claim, 

Panighetti argued (1) that Sanderlin was not seized within 

the meaning of the Fourth Amendment, (2) that if there was 

a seizure, his use of force was not excessive, and (3) that he 

is entitled to qualified immunity because he did not violate 

clearly established law.

The district court rejected each of these arguments and 

denied Panighetti qualified immunity. As to Sanderlin’s 

First Amendment claim, the district court determined that a 

jury could credit circumstantial evidence to find that 

Panighetti was motivated by retaliatory animus. As to 

whether Sanderlin was seized, the district court concluded

that although Panighetti’s stated subjective intent was to 

disperse Sanderlin, rather than restrain him, that fact was not 

determinative of whether there was a seizure. The district 

court reasoned that because “Panighetti intentionally aimed 

and fired at Derrick Sanderlin,” that was sufficient to create 

a dispute of fact as to whether there was a Fourth 

Amendment seizure. The court then went on to conclude 

1 We resolve the claims brought by Sanderlin against Defendant Jason 

Dwyer in a concurrently filed memorandum disposition. Sanderlin 

brought additional claims against other defendants, none of which are at 

issue in this appeal. 
SANDERLIN V. DWYER 9

that whether Panighetti’s use of force was excessive would 

“depend largely on how the jury interprets the video footage, 

and whether the jury credits Panighetti’s testimony that 

Sanderlin was blocking the police from targeting the two 

individuals behind the dumpster.” And finally, the district 

court concluded that “it was clearly established that an 

officer could not shoot a projectile at an individual who was 

peacefully protesting,” and thus, under Sanderlin’s version 

of events, “Panighetti had notice that his shooting of 

Sanderlin would be unconstitutional.” 

Panighetti timely appealed.

Jurisdiction and Standard of Review

We have jurisdiction over this interlocutory appeal of the 

district court’s summary judgment order denying qualified 

immunity. 28 U.S.C. § 1291; Mitchell v. Forsyth, 472 U.S. 

511, 530 (1985). But, at this stage, our jurisdiction is 

“limited to resolving a defendant’s ‘purely legal . . . 

contention that [his or her] conduct did not violate the 

[Constitution] and, in any event, did not violate clearly 

established law.’” Est. of Anderson v. Marsh, 985 F.3d 726, 

731 (9th Cir. 2021) (alterations in original) (quoting Foster 

v. City of Indio, 908 F.3d 1204, 1210 (9th Cir. 2018)). We 

lack jurisdiction over any argument “that the evidence is 

insufficient to raise a genuine issue of material fact.” Id. In 

reviewing the denial of summary judgment on qualified 

immunity grounds, we “decide de novo whether the facts, 

‘considered in the light most favorable to the plaintiff,’ show 

that qualified immunity is warranted.” Hopson v. Alexander, 

71 F.4th 692, 697 (9th Cir. 2023) (quoting Ames v. King 

County, 846 F.3d 340, 347 (9th Cir. 2017)). 
10 SANDERLIN V. DWYER

Discussion

“Qualified immunity shields an official from damages in 

a civil suit unless the plaintiff can make the showing that the 

official’s actions violated a constitutional right, and that the 

right was ‘clearly established’ at the time of the violative 

conduct.” Nelson v. City of Davis, 685 F.3d 867, 875 (9th 

Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 

(1982)). To survive summary judgment, Sanderlin must 

succeed on both prongs. Id.

We consider Sanderlin’s First and Fourth Amendment 

claims in turn. 

I.

To establish a claim for retaliatory violation of the First 

Amendment, Sanderlin must show (1) that he was engaged 

in a constitutionally protected activity; (2) that Panighetti’s 

actions would “chill a person of ordinary firmness from 

continuing to engage in the protected activity;” and (3) that 

“the protected activity was a substantial or motivating factor 

in [Panighetti’s] conduct.” Index Newspapers LLC v. U.S. 

Marshals Serv., 977 F.3d 817, 827 (9th Cir. 2020).

Panighetti argues that there are no genuine disputes of 

material fact as to the first and third elements. As to the first, 

Panighetti argues that Sanderlin was blocking Panighetti and 

other officers from taking action against the suspects 

standing behind the dumpster. Such obstruction of officers 

in their official duties, Panighetti argues, is not a 

constitutionally protected activity. But that argument 

assumes the truth of Panighetti’s version of the facts, and at 

this stage of the proceedings, we must construe the evidence 

in the light most favorable to Sanderlin. See Hopson, 71 

F.4th at 697. Whether or not Sanderlin was in fact 
SANDERLIN V. DWYER 11

obstructing officers, rather than engaging in the protected 

activity of peacefully protesting, will turn on whether a 

factfinder eventually credits Panighetti’s description of the 

circumstances surrounding the shooting. According to 

Sanderlin, he was merely standing peacefully on the 

sidewalk holding the sign. Resolving the disputed facts in 

Sanderlin’s favor, he was engaged in protected First 

Amendment activity.

That brings us to the third element, which also turns on 

the same dispute of fact. If a factfinder concludes that there 

was no legitimate justification for Panighetti’s actions, they

could reasonably infer that those actions were motivated by 

retaliatory animus. See Index Newspapers LLC, 977 F.3d at 

827 (recognizing that whether officer is motivated by 

discriminatory animus “involves questions of fact that 

normally should be left for trial”); Duran v. City of Douglas, 

904 F.2d 1372, 1377 (9th Cir. 1990) (denying summary 

judgment on First Amendment claim where officer claimed 

he lacked retaliatory motive but reasonable juror could find 

traffic stop was retaliatory in absence of “legitimate, 

articulate” reason for traffic stop).

For these reasons, we agree that, when all factual 

disputes are resolved and all reasonable inferences are drawn 

in Sanderlin’s favor, Panighetti’s acts violated clearly 

established law. It is clearly established that police officers 

may not use their authority to retaliate against individuals for 

protected speech. See Ford v. City of Yakima, 706 F.3d 

1188, 1195 (9th Cir. 2013), abrogated on other grounds by 

Nieves v. Bartlett, 587 U.S. 391 (2019). If a factfinder 

determines that Panighetti’s actions were retaliatory, then 

Panighetti’s actions would violate clearly established law.
12 SANDERLIN V. DWYER

II.

We now turn to Sanderlin’s Fourth Amendment claim of 

excessive force.

A.

We must first decide whether Sanderlin was seized 

within the meaning of the Fourth Amendment. See Seidner 

v. de Vries, 39 F.4th 591, 596 (9th Cir. 2022) (“Before 

addressing [an officer’s] use of force, we must decide 

whether [the plaintiff] was seized, thereby implicating the 

Fourth Amendment.”). 

A seizure “can take the form of ‘physical force’ or a 

‘show of authority’ that ‘in some way restrain[s] the liberty’ 

of the person.” Torres v. Madrid, 592 U.S. 306, 311 (2021) 

(quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). A 

Fourth Amendment seizure occurs “when there is a 

governmental termination of freedom of movement through 

means intentionally applied.” Brower v. Cnty. of Inyo, 489 

U.S. 593, 597 (1989). The Fourth Amendment is intended 

to “prevent arbitrary and oppressive interference by 

enforcement officials with the privacy and personal security 

of individuals.” United States v. Martinez-Fuerte, 428 U.S. 

543, 554 (1976). Thus, a seizure occurs any time an “officer 

accosts an individual and restrains his freedom to walk 

away.” Terry, 392 U.S. at 16. “[A] mere touch can be 

enough for a seizure,” and “brief seizures are seizures all the 

same.” Torres, 592 U.S. at 317–18. 

Consistent with these principles, courts have not 

hesitated to hold that a seizure occurred when an officer uses 

physical force in any way that restricts or otherwise limits 

the ability of an individual to move about freely, even if the 

restriction is limited in nature or time, and even where the 
SANDERLIN V. DWYER 13

force is not applied for the purpose of effectuating an arrest. 

See, e.g., Salmon v. Blesser, 802 F.3d 249, 254 (2d Cir. 

2015) (holding that a seizure occurred where officer used 

“painful force to control [the plaintiff’s] movements”); Hess 

v. Garcia, 72 F.4th 753, 763 (7th Cir. 2023) (“Physically 

grabbing someone is likely to be a seizure because it is likely 

to restrict movement, at least briefly.”); West v. Davis, 767 

F.3d 1063, 1070 (11th Cir. 2014) (holding that a seizure 

occurred where sheriff physically grabbed plaintiff’s wrist 

for brief time); United States v. Delaney, 955 F.3d 1077, 

1083 (D.C. Cir. 2020) (recognizing that “officers need not 

totally restrict a citizen’s freedom of movement” to 

effectuate seizure (quoting United States v. Smith, 794 F.3d 

681, 686 (7th Cir. 2015)). 

Here, Panighetti intentionally used physical force by 

directly firing a foam baton round at Sanderlin. According 

to Sanderlin’s declaration, after he was struck with the foam 

baton, he fell to the ground unable to move. The video 

footage from Panighetti’s body camera provides some

corroboration for this claim, as Sanderlin can be seen 

staggering from the impact, unable to stand or walk properly. 

In other words, Panighetti intentionally applied physical 

force, and as a result, Sanderlin’s “freedom of movement 

[was] restrained.” United States v. Mendenhall, 446 U.S. 

544, 553 (1980). Viewing the evidence in the light most 

favorable to Sanderlin, we conclude that a reasonable 

factfinder could determine that he was seized within the 

meaning of the Fourth Amendment. See Brendlin v. 

California, 551 U.S. 249, 254 (2007) (“A person is seized 

. . . when the officer, by means of physical force or show of 

authority, terminates or restrains his freedom of movement 

through means intentionally applied.” (citations, quotation 

marks, and emphasis omitted)). The fact that Panighetti’s 
14 SANDERLIN V. DWYER

incapacitation of Sanderlin may have been limited in 

duration does not alter this conclusion, because a 

“meaningful interference” with an individual’s freedom of 

movement, even if brief, constitutes a seizure. United States 

v. Enslin, 327 F.3d 788, 795 (9th Cir. 2003) (quoting United 

States v. Jacobsen, 466 U.S. 109, 113 n.5 (1984)). Nor is it 

relevant that Sanderlin was ultimately able to walk away, 

because “the application of physical force to the body of a 

person with intent to restrain is a seizure even if the person 

does not submit and is not subdued.” Torres, 592 U.S. at 

325.

Panighetti argues that he could not have seized Sanderlin 

because his actual intent in firing the foam baton was to force 

him to leave the area, not to restrain Sanderlin or apprehend 

him. Panighetti is correct that under the Supreme Court’s 

recent decision in Torres, “[a] seizure requires the use of 

force with intent to restrain.” Id. at 317. But Torres is 

equally clear that our inquiry centers on “whether the 

challenged conduct objectively manifests an intent to 

restrain.” Id.; see also Brendlin, 551 U.S. at 260 (“[W]e 

have repeatedly rejected attempts to introduce . . . 

subjectivity into Fourth Amendment analysis.”); accord

Villanueva v. California, 986 F.3d 1158, 1166 (9th Cir. 

2021) (“The intent that counts under the Fourth Amendment 

is the intent conveyed, not the officers’ subjective intent.” 

(quotation marks omitted)). 

Viewing the facts in the light most favorable to 

Sanderlin, we conclude that a reasonable factfinder could 

find that Panighetti objectively manifested an intent to 

restrain Sanderlin and prevent Sanderlin from freely walking 

away. Record evidence suggests that the 40mm launcher 

that Panighetti used is chiefly designed, intended, and used 

for the purpose of incapacitating its target—and there can be 
SANDERLIN V. DWYER 15

no reasonable dispute that “incapacitating” an individual by 

firing a projectile at them is an act that “meaningful[ly]

interfere[es]” with their freedom of movement. Jacobsen, 

466 U.S. at 113 n.5 (citing cases that recognize that 

“meaningful interference, however brief, with an 

individual’s freedom of movement” constitutes a seizure). 

According to SJPD training materials, “Less Lethal Impact 

munitions” like the 40mm foam baton Panighetti fired “are 

used to: Disorient [and] Incapacitate . . . Injury should be 

expected.” The training materials further reveal that 

projectiles that are fired “to ‘Center Mass’ provide for the 

highest probability of causing immediate incapacitation, but 

also have the potential to cause serious injury or death.”

Panighetti himself explained that he was trained to use the 

40mm launcher “to incapacitate a suspect” posing a safety 

risk. The record also shows that the groin, where Sanderlin 

was shot, is considered an area of particularly high risk of 

injury, and the training materials specifically indicate that 

“[t]he groin area should not be intentionally targeted.”

The method of force Panighetti used is, by its nature, 

intended to incapacitate its target, thereby making it difficult 

to freely walk away. A reasonable trier of fact viewing this 

evidence could conclude that by firing a 40mm projectile at 

Sanderlin’s groin, Panighetti objectively manifested an 

intent to restrain Sanderlin. Whether Panighetti may have 

subjectively intended to repel Sanderlin rather than restrain 

him is irrelevant to the analysis.

We therefore conclude that Panighetti’s act of firing a 

projectile at Sanderlin constituted a seizure under the Fourth 

Amendment.
16 SANDERLIN V. DWYER

B.

Having determined that Sanderlin was seized within the 

meaning of the Fourth Amendment, we must now consider

whether the seizure was unreasonable. See Graham v. 

Connor, 490 U.S. 386, 395 (1989). In assessing whether a 

seizure is unreasonable, we 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)). We note at the outset that “[b]ecause questions of 

reasonableness are not well-suited to precise legal 

determination, the propriety of a particular use of force is 

generally an issue for the jury.” Chew v. Gates, 27 F.3d 

1432, 1440 (9th Cir. 1994). “When all disputes of fact are 

resolved in [Sanderlin’s] favor, as they must be for purposes 

of summary judgment, it is apparent that application of the 

Graham factors would not have required a rational jury to 

decide that” Panighetti’s use of force was reasonable. Id. at 

1441. 

With respect to Sanderlin’s interests, we consider “the 

type and amount of force inflicted” against him. Young v. 

Cnty. of Los Angeles, 655 F.3d 1156, 1161 (9th Cir. 2011)

(quoting Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir. 

2001)). The district court noted that a projectile weapon like 

the 40mm launcher is a particularly strong method of force. 

Panighetti does not, and could not, reasonably dispute this. 

The SJPD manual describes the 40mm launcher as capable 

of causing serious injury or death. Moreover, there is no 

dispute that the injuries Sanderlin sustained were severe. 

Accordingly, we consider Panighetti’s use of force to be “a 

sufficiently serious intrusion upon liberty that it must be 

justified by a commensurately serious state interest.” Id. at 

1162–63.
SANDERLIN V. DWYER 17

In evaluating the government’s interest in the use of 

force, we “take[] into account: (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.” Chew, 27 F.3d at 1440 (citing Graham, 490 U.S. at 

396). The district court correctly noted that Sanderlin was 

not committing any crime at the moment Panighetti shot 

him. Although a chaotic scene was unfolding around him, 

Sanderlin was peacefully holding a sign with his hands up, 

was not personally threatening officer safety, and was not 

evading arrest. 

On the other hand, officers obviously have a legitimate 

“safety interest in controlling” a mass of people. Jackson v.

City of Bremerton, 268 F.3d 646, 652–53 (9th Cir. 2001). 

We acknowledge that the reasonableness inquiry must 

account for the reality that officers in Panighetti’s situation 

are “often forced to make split-second judgments” in 

“rapidly evolving” circumstances. Graham, 490 U.S. at 397. 

And where police officers are confronted with a crowd of 

protestors who refuse to obey the officers’ commands to 

disperse, the application of minimal force may be justified 

to maintain order and prevent organized lawlessness. See 

Felarca v. Birgeneau, 891 F.3d 809, 818 (9th Cir. 2018). 

Panighetti argues that Sanderlin posed a significant and 

immediate risk to officer safety because he interfered with 

the officers’ ability to incapacitate the two dangerous 

suspects hiding behind the dumpster, who Panighetti claims 

were armed with gallon paint cans. Once again, however, 

Panighetti relies on his version of the disputed facts. 

Whether or not Sanderlin was in fact obstructing officers 

will turn on whether a factfinder credits Panighetti’s version 

of the events. 
18 SANDERLIN V. DWYER

Moreover, the cases Panighetti cites are factually 

distinguishable, and none compel the conclusion that the 

force Panighetti used was reasonable as a matter of law. In 

Jackson, officers sprayed the plaintiff with a chemical 

irritant after the plaintiff ran to interfere with an officer in 

the middle of an altercation. 268 F.3d at 650. There, the 

threat posed by the plaintiff was direct, while the 

corresponding intrusion on her Fourth Amendment rights 

was less severe. In Ames, the plaintiff refused to allow police 

officers to enter her garage with an aid crew to provide 

lifesaving treatment to her son, loaded her son in a car, and 

attempted to drive away with him despite the officers’ orders 

not to do so. 846 F.3d at 345. There, the plaintiff actively 

interfered with her son’s medical treatment and physically 

resisted arrest. Id. at 349. And in Felarca, we specifically 

noted that the plaintiffs understood the police officers’ 

dispersal orders, ignored or dismissed them, and directly 

interfered with the officers’ attempt to carry out their duties. 

891 F.3d at 818. In contrast, Sanderlin claims that he never 

heard Panighetti’s commands to move, and that he never 

attempted to threaten or invade the officers’ personal space.

Ultimately, on this record, the reasonableness of the 

force used by Panighetti thus turns on “how the jury 

interprets the video footage, and whether the jury credits 

Panighetti’s testimony that Sanderlin was blocking the 

police from targeting the two individuals behind the 

dumpster.” To the extent that the jury discredits Panighetti’s 

account or believes that Panighetti failed to consider other 

less intrusive tactics, it could determine that the use of force 

was unreasonable. We therefore affirm the district court’s 

conclusion that a triable issue existed as to whether 

Panighetti violated Sanderlin’s Fourth Amendment rights.
SANDERLIN V. DWYER 19

C.

We now turn to the second prong of qualified 

immunity—whether the right violated was “clearly 

established.” We ask whether the law was “clearly 

established at the time an action occurred.” Harlow, 457 

U.S. at 818 (emphasis added). Subsequent legal 

developments cannot be used to impute knowledge upon 

officers, because the relevant inquiry is what the officer can 

“fairly be said to ‘know’” at the time of the alleged violation. 

Id.; see also Kisela v. Hughes, 584 U.S. 100, 104 (2018) (per 

curiam) (“Because the focus is on whether the officer had 

fair notice that her conduct was unlawful, reasonableness is 

judged against the backdrop of the law at the time of the 

conduct.” (quoting Brosseau v. Haugen, 543 U.S. 194, 198 

(2004) (per curiam))).

We must therefore decide whether at the time of the 

conduct, under clearly established law, Panighetti’s use of 

force was excessive. We confronted similar facts in Nelson 

v. City of Davis. There, the police ordered a group of 

students at a large disturbance to disperse, and when the 

students failed to comply, the police fired pepperball 

projectiles at them. Nelson, 685 F.3d at 873–74. We held 

that “the firing of a projectile that risked causing serious 

harm, in the direction of non-threatening individuals who 

had committed at most minor 

misdemeanors . . . constitute[d] unreasonable force in 

violation of the Fourth Amendment.” Id. at 886. Given the 

factual similarities between Nelson and this case, Panighetti

was on notice that his use of force was excessive. 

Moreover, in determining that the officers in Nelson

violated clearly established law by firing projectiles and 
20 SANDERLIN V. DWYER

pepper spray at non-threatening individuals, we relied on our 

prior holding in Deorle. In that case, we held that 

[e]very police officer should know that it is 

objectively unreasonable to shoot—even 

with lead shot wrapped in a cloth case—an 

unarmed man who: has committed no serious 

offense, is mentally or emotionally disturbed, 

has been given no warning of the imminent 

use of such a significant degree of force, 

poses no risk of flight, and presents no 

objectively reasonable threat to the safety of 

the officer or other individuals.

Deorle, 272 F.3d at 1285; see also Ciminillo v. Streicher, 

434 F.3d 461, 466–69 (6th Cir. 2006) (finding an officer 

“was on notice that it is unreasonable to use beanbag 

propellants against individuals who pose no immediate risk 

to officer safety,” even when the shooting occurred during 

the course of a riot). A reasonable trier of fact could 

conclude that each of these factors were present here, 

rendering Panighetti’s conduct unreasonable under clearly 

established law.

A closer question, however, is whether we may rely on 

Nelson to hold that it was clearly established that 

Panighetti’s acts constitute a seizure under the Fourth 

Amendment. If it were appropriate to rely on Nelson, it

would be clearly established. In Nelson, we explained that 

“it was clearly established prior to April 2004 . . . that the 

intentional application of force which terminates an 

individual’s freedom of movement results in a seizure.” 685 

F.3d at 884. But Nelson’s holding has been limited by the 

Supreme Court’s subsequent decision in Torres, in which the 
SANDERLIN V. DWYER 21

Court held that the mere “intentional application” of force is 

not, by itself, sufficient to establish a seizure; the force must 

be applied with the intent to restrain. We have already 

explained that the use of force here was a seizure under the 

narrower rule in Torres. But we must determine whether we 

can nevertheless rely on Nelson’s broader rule as clearly 

establishing, as of May 29, 2020, that intentionally firing a 

less lethal projectile to incapacitate a suspect constitutes a 

seizure.

We hold that such reliance is proper. The “clearly 

established” inquiry that we undertake when evaluating an 

officer’s assertion of qualified immunity is bound up with 

the precept of notice—notice means prior notice, not notice 

after the fact. See Hope v. Pelzer, 536 U.S. 730, 739 (2002) 

(“[Q]ualified immunity operates to ensure that before they 

are subjected to suit, officers are on notice that their conduct 

is unlawful.”). For that reason, a court may not rely on 

“subsequent legal developments” favorable to the plaintiff to 

clearly establish the law, because the officer cannot “fairly 

be said to ‘know’ that the law forbade conduct not previously 

identified as unlawful.” Harlow, 457 U.S. at 818; see also 

Sandoval v. Cnty. of San Diego, 985 F.3d 657, 685 (9th Cir. 

2021) (Collins, J., concurring in the judgment in part and 

dissenting in part) (“Changes in the applicable law that occur 

subsequent to the [defendant’s] actions are ‘therefore of no 

use in the clearly established inquiry.’” (quoting Kisela, 584 

U.S. at 107)).

Torres is, in some sense, favorable to Panighetti, because 

it narrowed the scope of seizures under the Fourth 

Amendment to cover only force used to restrain (even 

though, taking the facts in the light most favorable to 

Sanderlin, the use of force here meets that standard, as 

explained above). But we see no reason to treat subsequent 
22 SANDERLIN V. DWYER

legal developments that are favorable to the defendant 

officer any differently from subsequent legal developments 

favorable to the plaintiff. As one of our sister circuits has 

already recognized, “the need for prior notice is a two-way 

street.” West v. Murphy, 771 F.3d 209, 214 (4th Cir. 2014). 

In West, the Fourth Circuit considered whether a Supreme 

Court case narrowing liability for officials that was decided 

after the defendant officials’ challenged conduct could be 

used to show that the law was not clearly established at the 

time of the challenged conduct. Id. Recognizing that “the 

inquiry into ‘clearly established law’ is tethered to the need 

for notice,” the Fourth Circuit held that subsequent legal 

decisions that inure to the benefit of government officials 

“do[] not affect whether the law was clearly established 

because the favorable judicial decision could not have 

informed the officials’ understanding of whether their 

actions were lawful.” Id.

We adopt our sister circuit’s reasoning here. Consistent 

with well-settled principles underpinning qualified 

immunity, neither favorable nor damning subsequent legal 

developments can be used to demonstrate what law was or 

was not clearly established at the time of an officer’s 

challenged conduct. A subsequent legal development could

narrow the scope of a once broader constitutional right or 

otherwise work a change into the legal framework for 

analyzing a previously clear area of law. But just as we 

cannot reasonably expect an officer to anticipate subsequent 

legal developments to render his actions unlawful, Harlow, 

457 U.S. at 818, we cannot presume that an officer acts with 

clairvoyance that precedent clearly defining a constitutional 

right may later be disturbed. Of course, in assessing an 

officer’s claim of qualified immunity, decisions post-dating 

the incident may elucidate whether the officer has committed 
SANDERLIN V. DWYER 23

a constitutional violation at all—if there is no violation, then 

there is no liability. But if there is a violation, the officer 

cannot take advantage of subsequent developments in the 

law to argue that the right was not clearly established at the 

time he committed the violation. This rule is not only a 

faithful application of qualified immunity precedent, but a 

practically necessary one as well. If an officer acts with the 

sincere belief that his actions are lawful, notwithstanding 

clear law to the contrary in effect at the time, it would make 

little sense to reward the officer if it turns out that the law 

later becomes less clear or changes in some other way.

2 

As of May 29, 2020, Nelson clearly established that 

Panighetti’s act of shooting Sanderlin constituted a seizure. 

Nelson and Deorle together clearly established that 

Panighetti’s use of force under the circumstances was 

unreasonable. We therefore affirm the district court’s denial 

of summary judgment on qualified immunity grounds. 

***

We AFFIRM the district court’s order denying qualified 

immunity to Panighetti.

2 We add that the Supreme Court’s ruling in Torres would not have 

changed the outcome in Nelson. Were we to decide Nelson today, we 

would reach the same result, albeit for an analytically different reason. 

Although it is insufficient that the act causing the seizure be 

“intentional,” Torres still requires us to focus on the officer’s objectively 

manifested intent. And in Nelson, the officers’ objectively manifested 

an intent to restrain by firing projectile pepperballs into the crowd, 

knowing there was a significantly high risk that one such projectile could 

strike and incapacitate a member of the group. Thus, even after Torres, 

the officers’ acts in Nelson constituted a seizure. That we reach the same 

result under a different analytical framework based on intervening legal 

developments has no bearing on whether a reasonable officer would be 

on notice based on Nelson that his actions would constitute a seizure.