Sep 6, 2013 — Plaintiff Donald Gravelet-Blondin was tased and arrested after he allegedly failed to comply immediately with an.
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FOR PUBLICATIONUNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUITDONALD GRAVELET-BLONDIN;KRISTI GRAVELET-BLONDIN,Plaintiffs-Appellants,v.SGT. JEFF SHELTON; CITY OFSNOHOMISH,Defendants-Appellees.No. 12-35121D.C. No.2:09-cv-01487-RSLOPINIONAppeal from the United States District Courtfor the Western District of WashingtonRobert S. Lasnik, District Judge, PresidingArgued and SubmittedMay 10, 2013ŠSeattle, WashingtonFiled September 6, 2013Before: Michael Daly Hawkins and Jacqueline H. Nguyen,Circuit Judges, and James V. Selna, District Judge.*Opinion by Judge Hawkins;Dissent by Judge Nguyen * The Honorable James V. Selna, District Judge for the U.S. DistrictCourt for the Central District of California, sitting by designation.
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GRAVELET-BLONDIN V. SHELTON2SUMMARY**Civil RightsThe panel reversed the district court™s summary judgmentand remanded in an action brought pursuant to 42 U.S.C.§ 1983 and state law alleging that police officers usedexcessive force by tasing a passive bystander in dart modeand then arresting him for obstruction of justice.Plaintiff Donald Gravelet-Blondin was tased and arrestedafter he allegedly failed to comply immediately with anofficer order to move away from the scene where hisneighbor was being arrested. The panel first determined that,taking the evidence in the light most favorable to Donald andhis co-plaintiff wife, the discharge of a taser in dart mode wasunreasonable given that Donald™s alleged crime was minorand there was no reason to believe, based on his behavior,demeanor, and distance from the officers, that he posed animmediate threat to anyone™s safety. The panel further heldthat the police officer who tased Donald was not entitled toqualified immunity because it was well known as of 2008 thata taser in dart mode constituted more than trivial force. The panel also reversed the district court™s summaryjudgment on plaintiffs™ excessive force claim against the Cityand remanded. The panel further held that a genuine issue offact remained as to whether there was probable cause to arrestDonald for obstructing a police officer. The panel instructedthe district court on remand to consider whether qualified ** This summary constitutes no part of the opinion of the court. It hasbeen prepared by court staff for the convenience of the reader.
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GRAVELET-BLONDIN V. SHELTON3immunity or Monell liability applied to the unlawful arrestclaim. Finally, the panel reversed the district court™ssummary judgment on plaintiffs™ common law claims formalicious prosecution and outrage. Dissenting, Judge Nguyen stated that the majority wentbadly astray because it lost sight of the specific context of thiscase and employed hindsight rather than viewing the scenethrough the eyes of a reasonable officer. COUNSELTimothy K. Ford (argued) and Joseph R. Shaeffer,MacDonald Hoague & Bayless, Seattle, Washington, forPlaintiffs-Appellants.Richard B. Jolley (argued) and Adam Rosenberg, Keating,Bucklin & McCormack, Inc., Seattle, Washington, forDefendants-Appellees.OPINIONHAWKINS, Senior Circuit Judge:We must decide whether it was clearly established as of2008 that the use of a taser in dart mode against a passivebystander amounts to unconstitutionally excessive forcewithin the meaning of the Fourth Amendment.1 Because we 1 We proceed by answering this question in two parts, considering firstwhether it was clearly established that it is unconstitutionally excessive touse non-trivial force in response to mere passive resistance, and second,
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GRAVELET-BLONDIN V. SHELTON4determine that it was, we reverse the contrary conclusion ofthe district court and remand.2I. BACKGROUNDIn the early evening of May 4, 2008, Sergeant JeffShelton and four other officers from the Snohomish,Washington Police Department were dispatched to respondto a 911 call of a suicide in progress made by family membersof an elderly suspect, Jack. When the officers arrived atJack™s home he was sitting in his car, which was parked in theside yard of his house, with a hose running from the exhaustpipe into one of the car™s windows. The officers had beenwarned that Jack owned a gun and would have it with him. Sgt. Shelton took precautions to ensure officer safety and thenasked Jack to get out of the car.After several requests Jack finally complied, turning hiscar off and stepping out with his hands at his sides. WhenJack refused multiple commands to show his hands, Sgt.SheltonŠconcerned that Jack might gain access to agunŠinstructed another officer to tase Jack in dart mode.3 whether it was clearly established that a taser in dart mode constitutesnon-trivial force. We disagree with the dissent™s concern that we areundertaking this constitutional inquiry at too high a level of generality. 2 We reverse the court™s grant of summary judgment on a number ofrelated claims, as well. 3 In fidart mode,fl a taser:uses compressed nitrogen to propel a pair offiprobesflŠaluminum darts tipped with stainless steelbarbs connected to the [taser] by insulated
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GRAVELET-BLONDIN V. SHELTON5Jack fell to the ground and, as officers attempted to restrainand handcuff him, he pulled his arms underneath him. Hewas then tased a second time.Donald and Kristi Gravelet-Blondin (fithe Blondinsfl),Jack™s neighbors, were watching TV at home when the policearrived at the scene. They heard noise coming from thedirection of Jack™s house and went outsideŠDonald Blondin(fiBlondinfl) in shorts, a t-shirt, and slippersŠto investigateand make sure their neighbor was all right. When theystepped into the yard between Jack™s house and their own, theBlondins heard Jack moaning in pain, and Blondin sawofficers holding Jack on the ground.Blondin called out, fiwhat are you doing to Jack?fl Hewas standing some thirty-seven feet from Jack and theofficers at the time, with Jack™s car positioned in between.4 At least two of the officers holding Jack yelled commands atwiresŠtoward the target at a rate of over 160 feet persecond. Upon striking a person, the [taser] delivers a1200 volt, low ampere electrical charge . . . Theelectrical impulse instantly overrides the victim™scentral nervous system, paralyzing the musclesthroughout the body, rendering the target limp andhelpless.Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (en banc) (quotingBryan v. MacPherson, 630 F.3d 805, 824 (9th Cir. 2010)) (internalquotation marks omitted), cert. denied, 132 S. Ct. 2681 (2012), and cert.denied, 132 S. Ct. 2682 (2012), and cert. denied, 132 S. Ct. 2684 (2012). 4 Blondin™s calculation is based on measurements he took the day afterthe incident; officers on the scene took no measurements and have givenvarying estimates as to how far away Blondin was standing, ranging fromten to twenty-five feet.
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GRAVELET-BLONDIN V. SHELTON6Blondin: one instructed him to figet back,fl while another toldhim to fistop.fl According to a bystander watching the sceneunfold, Blondin took one or two steps back and then stopped. Blondin recalls that he simply stopped. Sgt. Shelton then rantowards Blondin, pointing a taser at him and yelling at him tofiget back.fl Blondin froze. The bystander testified thatBlondin fiappeared frozen with fear,fl and Defendants haveconceded that he made no threatening gestures.Sgt. Shelton began to warn Blondin that he would betased if he did not leave, but fired his taser before he hadfinished giving that warning. Sgt. Shelton tased Blondin indart mode, knocking him down and causing excruciatingpain, paralysis, and loss of muscle control. Blondin,disoriented and weak, began to hyperventilate. Sgt. Sheltonasked Blondin if he fiwant[ed] it againfl before turning to Ms.Blondin and warning, fiYou™re next.fl Sgt. Shelton thenordered another officer to handcuff Blondin. Paramedicscalled to the scene removed the taser™s barbs from Blondin™sbody and tried to keep him from hyperventilating. Blondinwas arrested and charged with obstructing a police officer, acharge that was ultimately dropped.The Blondins then initiated this action, suing the City ofSnohomish (fithe Cityfl) and Sgt. Shelton for excessive forceand unlawful arrest in violation of 42 U.S.C. § 1983, andmalicious prosecution in violation of Washington law, for thetasing and arrest of Blondin. Ms. Blondin also sued foroutrage under state law for the harm she suffered watchingher husband™s tasing and being threatened with tasing herself. After considering cross-motions for summary judgment, thedistrict court granted summary judgment to Defendants on allclaims.
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GRAVELET-BLONDIN V. SHELTON8Here, the intrusion on Blondin™s Fourth AmendmentinterestsŠthe discharge of a taser in dart mode uponhimŠinvolved an intermediate level of force withfiphysiological effects, [] high levels of pain, and foreseeablerisk of physical injury.fl Bryan, 630 F.3d at 825.Graham provides a non-exhaustive list of factors toconsider in determining the governmental interests at stake,including fithe severity of the crime at issue, whether thesuspect poses an immediate threat to the safety of the officersor others, and whether he is actively resisting arrest orattempting to evade arrest by flight.fl Graham, 490 U.S. at396. Each factor reveals the unreasonableness of the use ofintermediate force against Blondin.First, as we explain below, a fact question remains as towhether there was sufficient probable cause to arrest Blondinfor obstruction. Even if he committed a crime, though, thatcrimeŠfailing to immediately comply with an officer orderto get back from the scene of an arrest, when he was alreadystanding thirty-seven feet awayŠwas far from severe. SeeDavis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir.2007) (trespassing and obstructing a police officer were notfiserious offensesfl); see also Smith v. City of Hemet, 394 F.3d689, 702 (9th Cir. 2005) (en banc) (domestic violence suspectwas not fiparticularly dangerous,fl and his offense was notfiespecially egregiousfl).Second, there was no reason to believe, based onBlondin™s behavior, demeanor, and distance from the officers,that he posed an immediate threat to anyone™s safety. Inurging that officers reasonably could have thought Blondinposed such a threat, Defendants rely primarily on the officers™perception that Blondin was standing too close to them,
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GRAVELET-BLONDIN V. SHELTON9between six and twenty feet away, and that he finevermanifested a benign motive.fl The argument that Blondin wasless than twenty-one feet from officersŠwhich Defendantsidentify as fithe threshold for dangerfl Šimproperly resolvesa fact question in their own favor. Construing the facts inBlondin™s favor, as we must, he was standing thirty-sevenfeet away. Blondin™s failure to affirmatively exhibit afibenign motivefl is likewise insufficient to demonstrate thathe reasonably could have been perceived as posing animmediate threat, especially in light of witness testimony thathe was perceptibly frozen with fear.Defendants also urge us to consider Jack™s then-unlocatedgun as a basis for the officers™ belief that Blondin posed athreat. As the district court observed, the officers™ purportedfear that Blondin might have a gun was fibased on nothingmore than the reality that any civilian could be armed,speculation that fails to distinguish [Blondin] from anybystander at a crime scene.fl See Deorle v. Rutherford,272 F.3d 1272, 1281 (9th Cir. 2001) (fi[A] simple statementby an officer that he fears for his safety or the safety of othersis not enough; there must be objective factors to justify sucha concern.fl), cert. denied, 536 U.S. 958 (2002).Finally, Blondin did not resist arrest or attempt to escape. While fipurely passive resistance can support the use of someforce, [] the level of force an individual™s resistance willsupport is dependent on the factual circumstances underlyingthat resistance.fl Bryan, 630 F.3d at 830. In City of Hemet,for example, we addressed the nature of resistance exhibitedby fian individual who continually ignored officer commandsto remove his hands from his pockets and to not re-enter hishome,fl and who fiphysically resistedfl for a brief time. Id.(quoting City of Hemet, 394 F.3d at 703) (internal quotation
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GRAVELET-BLONDIN V. SHELTON10marks omitted). Though the individual fiwas not perfectlypassive,fl id., we emphasized that his resistance was notfiparticularly bellicosefl and as a result concluded that thethird Graham factor offered little support for the use ofsignificant force against him. City of Hemet, 394 F.3d at 703.Here, Blondin stood still for approximately fifteenseconds after receiving the first order to figet back,fl whichwas given simultaneously with a contradictory order tofistop.fl Even less time passed, then, between Sgt. Shelton™ssubsequent, unequivocal figet backfl command and the tasing. Though Blondin did not retreat during this brief period, hewas perfectly passive, engaged in no resistance, and didnothing that could be deemed fiparticularly bellicose.flIn evaluating objective reasonableness, we often mustlook beyond Graham™s enumerated factors and consider otherelements relevant to the totality of the circumstances. Bryan,630 F.3d at 826. As we have noted in the domestic violencecontext, the fidanger that the overall situation pose[s] to theofficers™ safety and what effect that has on the reasonablenessof the officers™ actionsfl may be an appropriate consideration. Mattos, 661 F.3d at 450. Here, officers testified that suicidecalls present unique risks. Suicidal individuals can quicklyturn homicidal and may engage police officers in an effort tocommit fisuicide by cop.fl But unlike in Mattos, where theindividual who resisted officer orders and was ultimatelytased was the suspected victim in the domestic violence call,and therefore integrally involved in the volatile situation towhich officers were responding, Blondin was a bystanderthirty-seven feet away without any perceptible connection tothe underlying crimeŠJack™s attempted suicide. It strains
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GRAVELET-BLONDIN V. SHELTON11logic to attribute any of the dangers involved in responding tosuicide calls to him.5Finally, as we have recognized before, the absence of awarning of the imminent use of force, when giving such awarning is plausible, weighs in favor of finding aconstitutional violation. See Mattos, 661 F.3d at 451; Deorle,272 F.3d at 1283Œ84. Here, though Sgt. Shelton gave such awarning, he did so as he fired his taser, leaving Blondin notime to react and rendering the warning meaningless.Taking the evidence in the light most favorable to theBlondins, a reasonable factfinder could conclude that Sgt.Shelton™s use of force was unreasonable and excessive, inviolation of the Fourth Amendment.2.Qualified ImmunityEven so, Sgt. Shelton is entitled to qualified immunity ifhis conduct did not fiviolate clearly established statutory orconstitutional rights of which a reasonable person would haveknown.fl Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Having concluded that Sgt. Shelton may indeed have usedexcessive force in violation of the Fourth Amendment, wenow consider whether the right to be free from such force wasclearly established at the time of the incident. See Mattos,661 F.3d at 446. 5 We agree with the dissent that officers responding to suicide calls facea risk that the suspect may attempt to figo out in a blaze of glory,fl and weaccept that Jack potentially posed such a threat. We fail to grasp theattribution of any part of that threat to Blondin.
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