Gravelet-Blondin v. Shelton

• Decision Date: 06 September 2013
• Docket Number: No. 12–35121.,12–35121.
• Citation: 728 F.3d 1086
• Parties: Donald GRAVELET–BLONDIN; Kristi Gravelet–Blondin, Plaintiffs–Appellants, v. Sgt. Jeff SHELTON; City of Snohomish, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

728 F.3d 1086

Donald GRAVELET–BLONDIN; Kristi Gravelet–Blondin, Plaintiffs–Appellants,

v.Sgt. Jeff SHELTON; City of Snohomish, Defendants–Appellees.

No. 12–35121.

United States Court of Appeals, Ninth Circuit.

Sept. 6, 2013.

Timothy K. Ford (argued) and Joseph R. Shaeffer, MacDonald Hoague & Bayless, Seattle, WA, for Plaintiffs–Appellants.

Richard B. Jolley (argued) and Adam Rosenberg, Keating, Bucklin & McCormack, Inc., Seattle, WA, for Defendants–Appellees.

Appeal from the United States District Court for the Western District of

Washington, Robert S. Lasnik, District Judge, Presiding. D.C. No. 2:09–cv–01487–RSL.

Before: MICHAEL DALY HAWKINS and JACQUELINE H. NGUYEN, Circuit Judges, and JAMES V. SELNA, District Judge.^*

OPINION

HAWKINS, Senior Circuit Judge:

We must decide whether it was clearly established as of 2008 that the use of a taser in dart mode against a passive bystander amounts to unconstitutionally excessive force within the meaning of the Fourth Amendment. ¹ Because we determine that it was, we reverse the contrary conclusion of the district court and remand.²

I. BACKGROUND

In the early evening of May 4, 2008, Sergeant Jeff Shelton and four other officers from the Snohomish, Washington Police Department were dispatched to respond to a 911 call of a suicide in progress made by family members of an elderly suspect, Jack. When the officers arrived at Jack's home he was sitting in his car, which was parked in the side yard of his house, with a hose running from the exhaust pipe into one of the car's windows. The officers had been warned that Jack owned a gun and would have it with him. Sgt. Shelton took precautions to ensure officer safety and then asked Jack to get out of the car.

After several requests Jack finally complied, turning his car off and stepping out with his hands at his sides. When Jack refused multiple commands to show his hands, Sgt. Shelton—concerned that Jack might gain access to a gun—instructed another officer to tase Jack in dart mode.³ Jack fell to the ground and, as officers attempted to restrain and handcuff him, he pulled his arms underneath him. He was then tased a second time.

Donald and Kristi Gravelet–Blondin (“the Blondins”), Jack's neighbors, were watching TV at home when the police arrived at the scene. They heard noise coming from the direction of Jack's house and went outside—Donald Blondin (“Blondin”) in shorts, a t-shirt, and slippers—to investigate and make sure their neighbor was all right. When they stepped into the yard between Jack's house and their own, the Blondins heard Jack moaning in pain, and Blondin saw officers holding Jack on the ground.

Blondin called out, “what are you doing to Jack?” He was standing some thirty-seven feet from Jack and the officers at the time, with Jack's car positioned in between.⁴ At least two of the officers holding Jack yelled commands at Blondin: one instructed him to “get back,” while another told him to “stop.” According to a bystander watching the scene unfold, Blondin took one or two steps back and then stopped. Blondin recalls that he simply stopped. Sgt. Shelton then ran towards Blondin, pointing a taser at him and yelling at him to “get back.” Blondin froze. The bystander testified that Blondin “appeared frozen with fear,” and Defendants have conceded that he made no threatening gestures.

Sgt. Shelton began to warn Blondin that he would be tased if he did not leave, but fired his taser before he had finished giving that warning. Sgt. Shelton tased Blondin in dart mode, knocking him down and causing excruciating pain, paralysis, and loss of muscle control. Blondin, disoriented and weak, began to hyperventilate. Sgt. Shelton asked Blondin if he “want[ed] it again” before turning to Ms. Blondin and warning, “You're next.” Sgt. Shelton then ordered another officer to handcuff Blondin. Paramedics called to the scene removed the taser's barbs from Blondin's body and tried to keep him from hyperventilating. Blondin was arrested and charged with obstructing a police officer, a charge that was ultimately dropped.

The Blondins then initiated this action, suing the City of Snohomish (“the City”) and Sgt. Shelton for excessive force and unlawful arrest in violation of 42 U.S.C. § 1983, and malicious prosecution in violation of Washington law, for the tasing and arrest of Blondin. Ms. Blondin also sued for outrage under state law for the harm she suffered watching her husband's tasing and being threatened with tasing herself. After considering cross-motions for summary judgment, the district court granted summary judgment to Defendants on all claims.

II. STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo. Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir.2011). In determining whether genuine issues of material fact remain, we are required to view all evidence and draw all inferences “in the light most favorable to the nonmoving party,” here, the Blondins. Id.

III. DISCUSSION

A. Excessive Force

We begin with the district court's grant of summary judgment to Defendants on the Blondins' excessive force claim. We agree that the Blondins have shown a constitutional violation but disagree that neither Sgt. Shelton nor the City may be held liable for it.

1. Constitutional Violation

The Fourth Amendment, which protects against excessive force in the course of an arrest, requires that we examine the objective reasonableness of a particular use of force to determine whether it was indeed excessive. Graham v. Connor, 490 U.S. 386, 394–95, 398, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); see also Maxwell v. Cnty. of San Diego, 697 F.3d 941, 951 (9th Cir.2012). To assess objective reasonableness, we weigh “the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailinggovernmental interests at stake.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (citation and internal quotation marks omitted).

Here, the intrusion on Blondin's Fourth Amendment interests—the discharge of a taser in dart mode upon him—involved an intermediate level of force with “physiological effects, [ ] high levels of pain, and foreseeable risk of physical injury.” Bryan, 630 F.3d at 825.

Graham provides a non-exhaustive list of factors to consider in determining the governmental interests at stake, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. Each factor reveals the unreasonableness of the use of intermediate force against Blondin.

First, as we explain below, a fact question remains as to whether there was sufficient probable cause to arrest Blondin for obstruction. Even if he committed a crime, though, that crime—failing to immediately comply with an officer order to get back from the scene of an arrest, when he was already standing thirty-seven feet away—was far from severe. See Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir.2007) (trespassing and obstructing a police officer were not “serious offenses”); see also Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir.2005) (en banc) (domestic violence suspect was not “particularly dangerous,” and his offense was not “especially egregious”).

Second, there was no reason to believe, based on Blondin's behavior, demeanor, and distance from the officers, that he posed an immediate threat to anyone's safety. In urging that officers reasonably could have thought Blondin posed such a threat, Defendants rely primarily on the officers' perception that Blondin was standing too close to them, between six and twenty feet away, and that he “never manifested a benign motive.” The argument that Blondin was less than twenty-one feet from officers—which Defendants identify as “the threshold for danger”—improperly resolves a fact question in their own favor. Construing the facts in Blondin's favor, as we must, he was standing thirty-seven feet away. Blondin's failure to affirmatively exhibit a “benign motive” is likewise insufficient to demonstrate that he reasonably could have been perceived as posing an immediate threat, especially in light of witness testimony that he was perceptibly frozen with fear.

Defendants also urge us to consider Jack's then-unlocated gun as a basis for the officers' belief that Blondin posed a threat. As the district court observed, the officers' purported fear that Blondin might have a gun was “based on nothing more than the reality that any civilian could be armed, speculation that fails to distinguish [Blondin] from any bystander at a crime scene.” See Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir.2001) (“[A] simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.”), cert. denied,536 U.S. 958, 122 S.Ct. 2660, 153 L.Ed.2d 835 (2002).

Finally, Blondin did not resist arrest or attempt to escape. While “purely passive resistance can support the use of some force, [ ] the level of force an individual's resistance will support is dependent on the factual circumstances underlying that resistance.” Bryan, 630 F.3d at 830. In City of Hemet, for example, we addressed the nature of resistance exhibited by “an individual who continually ignored officer commands to remove his hands from his pockets and to not re-enter his home,” and who “physically resisted” for a brief time. Id. (quoting City of Hemet, 394 F.3d at 703) (internal quotation marks omitted). Though the individual “was not perfectly passive,” id., we emphasized that his resistance was not “particularly bellicose” and as a result concluded that the third Graham factor offered little support for the use of significant force against him. City of Hemet, 394 F.3d at 703.

Here, Blondin stood still for approximately fifteen seconds after receiving...