[Peace-discuss] Fw: [police oversight] US 9th Circuit Approves Tasering of Pregnant Woman

[Laurie Solomon]

What can happen when the rule of law goes wrong.  Three cheers for the lone 
dissenting judge and her blistering dissent  and criticism of her fellow 
judges in the majority.

--------------------------------------------------
From: "Charles Reynolds" <reynolds.charles at comcast.net>
Sent: Monday, March 29, 2010 12:40 PM
To: <policeoversight at yahoogroups.com>
Subject: [police oversight] US 9th Circuit Approves Tasering of Pregnant 
Woman

> 3/29/2010
> Federal Court Approves Traffic Stop Tasering Of Pregnant Woman
> Ninth Circuit Appeals Court rules minor traffic stop justifies use of 
> taser on pregnant woman.
>
> The US Court of Appeals for the Ninth Circuit ruled Friday that it was 
> acceptable for police to taser a pregnant mother over a minor traffic 
> ticket. On November 23, 2004, Seattle, Washington Police Officer Juan 
> Ornelas had been running a speed trap when Malaika Brooks passed by while 
> driving her eleven-year-old son to school. Ornelas pulled over Brooks and 
> accused her of speeding at 32 MPH. Brooks believed that the officer had 
> mistakenly clocked the car ahead of hers, so she refused to sign the 
> ticket thinking it would be an admission of guilt.
>
> "I'm not signing, I'm not signing," Brooks said.
>
> Eight years previously, Brooks had been stopped for another offense and 
> she refused to sign the ticket. The officer on the scene allowed her to go 
> without incident. This time, however, a second officer on the scene, 
> Donald M. Jones, became incensed. He brandished a taser saying it would 
> hurt her "extremely bad" if she did not get out of the car so that they 
> could take her to jail. Brooks said that she was seven months pregnant, 
> but Jones did not care. Ornelas put her in an armlock while Jones blasted 
> the pregnant woman three times with the taser in her thigh, shoulder and 
> neck. The officers then dragged her out of the car.
>
> A jury subsequently refused to convict Brooks of resisting arrest. Brooks 
> sued the officers over their use of excessive force. The appellate court, 
> however, believed the jury to be in error.
>
> "Based on Brooks's undisputed uncooperative behavior, a reasonably prudent 
> person would have believed Brooks was violating section 9A.76.020 by 
> obstructing the Officers' attempts to obtain her signature and complete 
> the traffic stop," Judge Cynthia Holcomb Hall wrote for the majority.
>
> The court went on to argue that the use of force on a non-threatening and 
> non-violent motorist was appropriate and reasonable. The appellate court 
> ruled that the pregnant woman could pose a threat to three armed male 
> police officers.
>
> "Although obstructing an officer is a more serious offense than the 
> traffic violations, it is nonetheless not a serious crime," Hall wrote. 
> "It would also be incorrect to say Brooks posed no threat to officers. 
> While she might have been less of a threat because her force so far had 
> been directed solely at immobilizing herself, a suspect who repeatedly 
> refuses to comply with instructions or leave her car escalates the risk 
> involved for officers unable to predict what type of noncompliance might 
> come next... Brooks may not have posed a great threat, she did pose some 
> threat by virtue of her continued non-compliance."
>
> The court then gave the officers involved full immunity for their actions, 
> ending the lawsuit filed by brooks. Judge Marsha S. Berzon filed a 
> blistering dissent pointing out that the legislature in 2006 removed the 
> requirement for motorists to sign a ticket as evidence of the lack of 
> proportion of the police response in this case.
>
> "Refusing to sign a speeding ticket was at the time a nonarrestable 
> misdemeanor; now, in Washington, it is not even that," Berzon wrote. "I 
> fail utterly to comprehend how my colleagues are able to conclude that it 
> was objectively reasonable to use any force against Brooks, let alone 
> three activations of a Taser, in response to such a trivial offense.... 
> Instead, a traffic offense -- assuming it occurred -- turned into an 
> encounter that inflicted physical and, in all likelihood, emotional pain 
> on a citizen who was not in any way dangerous to anyone."
>
> Berzon went on to blast the court's theory that Brooks was guilty of 
> obstructing a police officer.
>
> "The majority's attempt to elevate the misdemeanor of refusing to sign the 
> notice to the gross misdemeanor of obstructing an officer is simply beyond 
> the pale," Berzon wrote. "Nor does the majority point to any authority 
> supporting its off-the-wall theory... In short, there was just no cause to 
> arrest Brooks for obstructing an officer. None. That is probably why the 
> officers have never suggested that there was."
>
>
> Source: Brooks v. Seattle (US Court of Appeals for the Ninth Circuit, 
> 3/28/2010)
>
> ---------------------------------------------------------------------
>
> BROOKS v. CITY OF SEATTLE
>
> MALAIKA BROOKS, Plaintiff-Appellee,
> v.
> CITY OF SEATTLE, Defendant, and
> STEVEN L. DAMAN, in his capacity as an officer of the Seattle Police 
> Department; DONALD M. JONES, in his individual capacity as an officer of 
> the Seattle Police Department; JUAN M. ORNELAS, in his individual capacity 
> as an officer of the Seattle Police Department, Defendants-Appellants.
>
> No. 08-35526.
>
> United States Court of Appeals, Ninth Circuit.
>
> Argued and Submitted July 10, 2009—Seattle, Washington.
>
> Filed March 26, 2010.
>
> Karen L. Cobb and Theron A. (Ted) Buck, Stafford Frey Cooper, Seattle, 
> Washington, for the defendants-appellants.
>
> Eric Zubel, Eric Zubel, PC, Seattle, Washington, for the 
> plaintiff-appellee.
>
> Before: Cynthia Holcomb Hall, Diarmuid F. O'Scannlain, and Marsha S. 
> Berzon, Circuit Judges.
>
> Opinion by Judge Hall; Dissent by Judge Berzon.
> OPINION
>
> HALL, Circuit Judge.
>
> Sergeant Steven Daman, Officer Juan Ornelas, and Officer Donald Jones 
> (collectively "the Officers") appeal the district court's denial of the 
> Officers' motion for summary judgment on Malaika Brooks's § 1983 and 
> state law claims. Brooks had sued the City of Seattle, the Seattle Police 
> Department ("SPD") and its chief, as well as the Officers, based on the 
> Officers' alleged excessive force when they tased her three times to 
> effect her arrest. The district court denied the Officers' motion for 
> summary judgment,[ 1 ] finding that they were not entitled to qualified 
> immunity for their actions. The Officers challenge that denial. This court 
> has jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.
> I.
>
> On November 23, 2004, SPD Officer Juan Ornelas stopped Brooks for speeding 
> in a school zone.[ 2 ] The situation deteriorated rather quickly. Brooks 
> claimed she had not been speeding, took her driver's license out of 
> Officer Ornelas's ticket book and only reluctantly gave it back, and then 
> repeatedly refused to sign a Notice of Infraction ("Notice") regarding her 
> speeding violation.[ 3 ] When SPD Officer Jones arrived at the scene, 
> Officer Ornelas told him that Brooks had refused to sign the Notice and 
> was being uncooperative. Officer Jones tried to obtain her signature 
> himself, but Brooks also refused his entreaties, despite assurances that 
> signing was not tantamount to admitting the violation. She accused Officer 
> Jones of lying to her about the import of signing,[ 4 ] suggested he was 
> being racist, and became upset, repeating "I'm not signing, I'm not 
> signing" over and over. Throughout, she remained in the car with the 
> ignition running.
>
> Officer Ornelas then called his supervisor, SPD Sergeant Daman. When 
> Sergeant Daman arrived, Brooks continued to refuse to sign the Notice. 
> Sergeant Daman then asked her "if [she] was going to sign the ticket." 
> When she refused, he told Officers Ornelas and Jones to "[b]ook her." They 
> attempted to follow those orders.
>
> Brooks refused to leave her car, remaining in it with the ignition running 
> and her door shut. Officer Jones then showed Brooks his Taser, explaining 
> that it would hurt "extremely bad" if applied. Brooks told them she was 
> pregnant and that she needed to use the restroom. The officers discussed 
> where to tase her, deciding on her thigh. Officer Jones demonstrated the 
> Taser for her. Brooks still remained in the car, so Officer Ornelas opened 
> the door and reached over to take the key out of the ignition, dropping 
> the keys on the floorboard.[ 5 ]
>
> Officer Ornelas then employed a pain compliance technique, bringing 
> Brooks's left arm up behind her back, whereon Brooks stiffened her body 
> and clutched the steering wheel in order to frustrate her removal from the 
> car. Officer Jones discharged the Taser against Brooks's thigh, through 
> her sweat pants, which caused Brooks "tremendous pain." She began to yell 
> and honk the car's horn.
>
> Within the next minute, Officer Jones tased her two more times, against 
> her shoulder and neck, the latter being the only area of exposed skin. 
> Brooks was unable to get out of the car herself during this time because 
> her arm was still behind her back.[ 6 ] The third tasing moved Brooks to 
> the right, at which point Officers Ornelas and Jones were able to extract 
> her from the car through a combination of pushing and pulling. She was 
> immediately seen by medical professionals, and two months later delivered 
> a healthy baby.
>
> Brooks was charged with (1) violation of Seattle Municipal Code 11.59.090 
> for refusing to sign the Notice, and (2) resisting arrest. She was 
> convicted of the first charge, but the jury hung on the second, which was 
> later dismissed.
>
> Brooks then filed this action against the Officers, asserting a claim 
> under 42 U.S.C. § 1983 and assault and battery claims under state tort 
> law for the alleged excessive force. The district court denied the 
> Officers' motion for summary judgment on those claims, finding a clearly 
> established constitutional violation that deprived the Officers of 
> qualified immunity on both the federal and state claims.
> II.
>
> We review de novo a denial of summary judgment based on qualified 
> immunity. See Lee v. Gregory, 363 F.3d 931, 932 (9th Cir. 2004). Our 
> review is limited to the question of whether, assuming all conflicts in 
> the evidence are resolved in Brooks's favor, the Officers would be 
> entitled to qualified immunity as a matter of law. Id.
> III.
>
> Qualified immunity entitles the Officers "not to stand trial or face the 
> other burdens of litigation" on the § 1983 claim, provided their conduct 
> did not violate a clearly established federal right. Mitchell v. Forsyth, 
> 472 U.S. 511, 526 (1985). The qualified immunity inquiry asks two 
> questions: (1) was there a violation of a constitutional right, and, if 
> so, then (2) was the right at issue "clearly established" such that it 
> would have been clear to a reasonable officer that his conduct was 
> unlawful in that situation?[ 7 ] See Saucier v. Katz, 533 U.S. 194, 201-02 
> (2001), overruled on other grounds by Pearson v. Callahan, 129 S. Ct. 808 
> (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. See Blankenhorn v. City of Orange, 485 
> F.3d 463, 471 (9th Cir. 2007).
> A. Constitutional Violation
>
> In her complaint, Brooks alleged that the Officers violated her 
> constitutional rights by using excessive force during her arrest.
> 1. Probable Cause
>
> Beginning in her opposition to the Officers' motion for summary judgment, 
> Brooks has argued that the Officers did not have probable cause to arrest 
> her for refusing to sign the Citation to Appear because she did not so 
> refuse. Therefore, she contends, there was no need for force, and any 
> force used was constitutionally unreasonable. See Headwaters Forest Def. 
> v. County of Humboldt, 240 F.3d 1185, 1204 (9th Cir. 2000). As an initial 
> matter, we note that "establishing a lack of probable cause . . . does not 
> establish an excessive force claim," Beier v. City of Lewiston, 354 F.3d 
> 1058, 1064 (9th Cir. 2004). Thus, the result, even if we were to find no 
> probable cause, is not as obvious as Brooks would make it. Indeed, an 
> arrestee's resistance may support the use of force regardless of whether 
> probable cause existed. See Arpin v. Santa Clara Valley Transp. Agency, 
> 261 F.3d 912, 922 (9th Cir. 2001) (finding an arrestee's actions in 
> "stiffen[ing] her arm and attempt[ing] to pull it away" to be resistance 
> justifying the officer's use of force in handcuffing regardless of whether 
> there was probable cause to arrest her).
>
> [1] Nonetheless, the existence of probable cause may be considered as a 
> part of the totality of circumstances affecting the excessive force 
> analysis. See Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) 
> (permitting consideration of whether the officer's conduct "violated 
> applicable police standards" in assessing the reasonableness of the force 
> used). It also impacts the question of state law immunity on the assault 
> and battery claims. See Wash. Rev. Code § 9A.16.020(1) (finding force 
> used by a police officer not unlawful "[w]henever necessarily used . . . 
> in the performance of a legal duty"); Staats v. Brown, 991 P.2d 615, 
> 627-28 (Wash. 2000) (describing state qualified immunity on assault and 
> battery as dependent upon whether the force used to effect the arrest was 
> excessive). Thus, we consider whether the Officers had probable cause to 
> arrest Brooks.
>
> [2] "Probable cause exists when the facts and circumstances within the 
> officer's knowledge are sufficient to cause a reasonably prudent person to 
> believe that a crime has been committed." Lassiter v. City of Bremerton, 
> 556 F.3d 1049, 1053 (9th Cir. 2009). Though we agree with the district 
> court that the Officers did have probable cause to arrest Brooks, we 
> arrive at that conclusion by a different path.[ 8 ]
>
> [3] Brooks concedes that she refused to sign the Notice, which amounted to 
> a violation of Seattle Municipal Code § 11.59.090(c). For the purposes of 
> the Fourth Amendment, this is sufficient to find probable cause. See 
> Virginia v. Moore, 128 S. Ct. 1598, 1606-07 (2008) (holding that an arrest 
> based on probable cause does not violate the Fourth Amendment, even if the 
> relevant criminal offense is nonarrestable under state law).
>
> However, because Virginia v. Moore does not answer the question of whether 
> the Officers were following departmental standards or are entitled to 
> state law immunity, we march on. Brooks's arguments are all based on the 
> premise that (1) she could not be arrested for refusing to sign the Notice 
> and (2) although she could be arrested for refusing to sign the Citation, 
> she never received it. However, she does not argue that she was detained 
> longer than was reasonably necessary under Section 46.64.015 or that her 
> conduct during that period of detention could not provide grounds for 
> lawful arrest.
>
> [4] First, the Officers had clear authority for their initial arrest and 
> detention of Brooks. Brooks does not dispute that her initial traffic 
> violation permitted the Officers to arrest and to detain her until they 
> issued her a Notice. See Wash. Rev. Code § 46.64.015 (2004) ("The 
> arrested person, in order to secure release, and when permitted by the 
> arresting officer, must give his or her written promise to appear in court 
> as required by the citation and notice by singing in the appropriate place 
> . . .").[ 9 ] In addition, Brooks's refusal to sign the Notice gave the 
> Officers probable cause to continue to detain her. Under Washington law, a 
> police officer may arrest an individual for committing a misdemeanor in 
> his presence. Wash. Rev. Code § 10.31.100. Failure to sign the Notice is 
> a misdemeanor. See Wash. Rev. Code § 46.61.022 (making failure to comply 
> with Wash. Rev. Code § 46.61.021(3), which includes a requirement to sign 
> the Notice, a misdemeanor). As there is no dispute that Brooks's refusal 
> to sign the Notice took place in the presence of the Officers, there can 
> be no question that Washington law authorized her arrest.
>
> [5] The Officers' authority to arrest Brooks for these misdemeanors would 
> ordinarily last no longer than necessary to issue her a Citation. See 
> Wash. Rev. Code § 46.64.015 (2004). However, her conduct during this 
> initial detention gave the Officers probable cause to place her under 
> custodial arrest for other violations of state law—a point that Brooks 
> does not dispute. For instance, we find that probable cause existed to 
> arrest Brooks for obstructing an officer. See Wash. Rev. Code § 
> 9A.76.020. "A person is guilty of obstructing a law enforcement officer if 
> the person willfully hinders, delays, or obstructs any law enforcement 
> officer in the discharge of his or her official powers or duties." Id.; 
> see Lassiter, 556 F.3d at 1051, 1053 (listing the crime's elements as "1) 
> an action or inaction that hinders, delays, or obstructs the officers; 2) 
> while the officers are in the midst of their official duties; 3) the 
> defendant knows the officers are discharging a public duty; [and] 4) the 
> action or inaction is done knowingly"). That violation is a gross 
> misdemeanor for which custodial arrest is appropriate. See Wash. Rev. Code 
> §§ 9A.76.020(3), 10.31.100. While trying to obtain Brooks's signature on 
> the Notice, the officers were acting in the discharge of their official 
> duties. See Wash. Rev. Code §§ 46.61.021, 46.63.060(2)(j) (official 
> duties when completing and issuing Notice, which requires signature); 
> State v. Richards, 36 P.3d 1119, (Wash. 2001) (official duties when 
> seeking signature on Citation to Appear).
>
> [6] Based on Brooks's undisputed uncooperative behavior, a reasonably 
> prudent person would have believed Brooks was violating section 9A.76.020 
> by obstructing the Officers' attempts to obtain her signature and complete 
> the traffic stop. Wash. Rev. Code § 9A.76.020(1); see Lassiter, 556 F.3d 
> at 1053 (finding probable cause to arrest an individual for obstructing a 
> police officer when that individual declined to follow instructions and 
> grabbed the officer's arm when the officer placed a hand on him). The 
> record reflects that Brooks's detention was lengthened and the situation 
> escalated by her own resistance. The Officers were attempting—and Brooks 
> knew they were attempting—to complete and issue the Notice by securing 
> her signature on it as required by sections 46.61.021 and 46.63.060(2)(j). 
> Her behavior interfered with their lawful attempts to carry out that duty. 
> Therefore, the Officers had probable cause to arrest Brooks.
>
> Additionally, Washington state courts have recognized that although 
> officers generally should issue citations for minor traffic violations 
> instead of making custodial arrests, there might be "reasonable grounds" 
> for making an arrest, such as when "there was reasonable grounds to 
> believe that the accused will refuse to respond to a citation." State v. 
> Hehman, 578 P.2d 527, 528-29 (Wash. 1978); see State v. Covington, 144 
> Wash. App. 1012 (Wash. Ct. App. 2008) (finding it reasonable to believe 
> that person without identification, claiming not to own the vehicle he was 
> driving, would disregard a promise to appear on the citation if one were 
> given); State v. Jordan, 747 P.2d 1096, 1098 (Wash. Ct. App. 1987) (same); 
> State v. McIntosh, 712 P.2d 319 (Wash. Ct. App. 1986) (same and defendant 
> also gave suspicious account of his activity on evening of arrest).
>
> [7] Even if Brooks never in fact received the Citation, her conduct while 
> in detention for the speeding violation and failure to sign the Notice 
> made it reasonable to believe that she also would not sign a Citation were 
> one issued. Brooks has admitted being uncooperative during her detention: 
> she tried to take her driver's license away from Officer Ornelas; 
> repeatedly refused his requests to sign the Notice; repeatedly refused 
> Officer Jones's requests to do the same, even when told it was her legal 
> duty to sign; accused Officer Jones of lying to her about the law and of 
> racism; and became upset, all while sitting in her car with the ignition 
> running. Officer Ornelas called for backup because of her behavior. When 
> Sergeant Daman arrived at the scene, he asked her again to sign, and she 
> refused. Under these particular circumstances, it would be reasonable to 
> believe that serving Brooks the Citation would be futile. Therefore, even 
> if Brooks's account of the incident were true, the futility of issuing the 
> Citation would provide the Officers probable cause to arrest her for 
> failure to sign the Notice.
> 2. Excessive Force
>
> [8] An excessive force claim is analyzed under the Fourth Amendment's 
> "objective reasonableness" standard. Graham v. Connor, 490 U.S. 386, 388 
> (1989). This inquiry "requires 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." Id. at 396 
> (internal quotation marks omitted). Because reasonableness "is not capable 
> of precise definition or mechanical application," the inquiry requires 
> "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." Id. These factors should be considered in relation to the amount 
> of force used. See Smith, 394 F.3d at 701. Reasonableness is judged from 
> the perspective of a reasonable officer on the scene, making allowances 
> for the split-second judgments officers are required to make in "tense, 
> uncertain, and rapidly-evolving" situations. Graham, 490 U.S. at 396-97.
>
> The right to employ "some degree of physical coercion or threat thereof" 
> to effect an arrest accompanies the right to make the arrest or 
> investigatory stop, id. at 396, but the force must be necessary to be 
> reasonable, Blankenhorn, 485 F.3d at 480. Where police have control over a 
> suspect, the use of further force to bring the suspect under control may 
> be unreasonable. See Headwaters Forest Def., 276 F.3d at 1125 (use of 
> pepper spray on protesters already under police control held excessive). 
> Officers are not required to use the least intrusive means available; they 
> simply must act within the range of reasonable conduct. See Scott v. 
> Heinrich, 39 F.3d 912, 915 (9th Cir. 1994). Determination of that 
> reasonable range requires consideration of the totality of the 
> circumstances, Forrester v. City of San Diego, 25 F.3d 804, 806 n.2 (9th 
> Cir. 1994), including whether a warning was given, Deorle v. Rutherford, 
> 272 F.3d 1272, 1283-84 (9th Cir. 2001), and the availability of 
> alternative methods of capturing and subduing a suspect, Smith, 394 F.3d 
> at 701-02. The fact that a suspect does not threaten the officer does not 
> shield him from the use of force. See Forrester, 25 F.3d at 807-09 
> (finding no Fourth Amendment violation when officers used injury-causing 
> pain compliance techniques on passively resisting demonstrators).
>
> The Officers argue that the use of a Taser to gain Brooks's compliance—after 
> previous unsuccessful, lawful attempts to gain her cooperation and 
> warnings the Taser would be used— was not objectively unreasonable. The 
> Officers note that a Taser's use in "drive-stun" mode inflicts only 
> transitory, localized pain. Applying the Graham factors, the Officers 
> first claim that the alleged crime was the more serious crime of resisting 
> arrest, not the failure to sign the Notice. Second, they contend that, 
> although Brooks initially posed only a minimal risk, that risk escalated 
> when she became confrontational and refused to leave her running car. 
> Third, and finally, they point out that Brooks was actively resisting 
> arrest by using force to immobilize herself and remain in the car.
> a. The Amount of Force
>
> We first assess the quantum of force used by the Officers. See Davis v. 
> City of Las Vegas, 478 F.3d 1048, 1055 (9th Cir. 2007). The Officers claim 
> there has been a significant misunderstanding of the force involved in the 
> manner in which the Taser was used here. We are inclined to agree.
>
> [9] The Taser's use in "touch" or "drive-stun" mode—as the Officers used 
> it here—involves touching the Taser to the body and causes temporary, 
> localized pain only. According to the SPD's Use of Force Training 
> Guideline,[ 10 ] this usage was considered a Level 1 tactic, akin to "pain 
> compliance applied through the use of distraction, counter-joint holds, 
> hair control holds, [and pepper spray]" and used to control passively or 
> actively resisting suspects. By contrast, applying a Taser in dart mode 
> (wherein darts are shot at the suspect from some distance) achieves 
> greater distance between the contact nodes which can cause neuro-muscular 
> incapacitation. In dart mode, the Taser's use is a Level 2 tactic to be 
> employed only against aggressive resistance. The district court did not 
> differentiate between the possible modes of use, noting only that the 
> Taser was discharged on Brooks's thigh, shoulder, and neck, causing "a 
> level of force (whether once or three times) that hurt `extremely bad,' " 
> and constituted a "quantum leap" from the previous force employed. These 
> comments suggest the district court thought the force used was severe. We 
> find this to be an overestimation that led the court to err in finding 
> excessive force.
>
> In two recent decisions, we addressed excessive force claims involving the 
> use of Tasers. See Mattos v. Agarano, 590 F.3d 1082 (9th Cir. 2010) (per 
> curiam) (holding that the use of a Taser stun on a suspected domestic 
> violence victim while attempting to arrest her husband did not amount to 
> excessive force); Bryan v. McPherson, 590 F.3d 767 (9th Cir. 2009) 
> (holding that shooting a Taser gun at a disoriented, half-naked man while 
> stopping him for a seatbelt violation constituted excessive force).
>
> The Mattos court did not engage in an in-depth analysis of the quantum of 
> force involved in the use of a Taser. See 590 F.3d at 1087 ("[I]t is 
> difficult for us to opine with confidence regarding either the quantum of 
> force involved in a deployment of a Taser gun or the type of force 
> inflicted."). In Mattos, a police officer applied a Taser directly to 
> plaintiff's back, causing her to feel "an incredible burning and painful 
> feeling locking all of [her] joints." Id. at 1085 (internal quotation 
> marks omitted; alteration in original). The panel, however, cited 
> conflicting testimony regarding the amount of force used and the severity 
> of plaintiff's injuries. Id. at 1087. It observed that "the Taser, in 
> general, is more than a non-serious or trivial use of force but less than 
> deadly force," and noted that "[u]nfortunately, there is a lot of room 
> between these end points." Id. The panel noted that "the record on this 
> point is not as developed as we could hope for," but concluded that "the 
> Taser stun was a serious intrusion into the core of the interests 
> protected by the Fourth Amendment."[ 11 ] Id. The Mattos panel did not 
> differentiate drive-stun and dart modes, nor did it differentiate the 
> quantum of force used on Mattos from the quantum of force used in Bryan.
>
> The Bryan panel undertook a more detailed analysis of the quantum of 
> force. The panel concluded that the use of a Taser, in a manner equivalent 
> to dart mode, "constitute[s] an intermediate, significant level of force 
> that must be justified by a strong government interest that compels the 
> employment of such force." Bryan, 590 F.3d at 774 (internal quotation 
> marks omitted).[ 12 ] In Bryan, a police officer discharged his X26 Taser 
> from a distance of approximately 20-25 feet, embedding a barbed electrical 
> probe into Bryan's arm. Id. at 771. The X26's powerful electrical pulse 
> delivered an excruciating pain throughout Bryan's body and caused Bryan to 
> lose all muscular control, fall face first onto the pavement, shatter four 
> front teeth, and suffer facial abrasions and swelling. Id. He also needed 
> to have the electrical barb surgically removed from his flesh. Id. at 773. 
> Because the pain inflicted by the X26 Taser was "intense, [was] felt 
> throughout the body, and [was] administered by effectively commandeering 
> the victim's muscles and nerves," we held the X26 Taser to be "an 
> intermediate or medium, though not insignificant, quantum of force." Id. 
> at 774-75.[ 13 ]
>
> [10] The force at issue here is markedly different than the force in 
> Bryan, and, unlike in Mattos, we have the benefit of a fully-developed 
> record on the use of a Taser in drive-stun mode. 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. 
> Brooks said she sustained burn marks and now has scars on her upper arm 
> and thigh, which is certainly not insignificant, but these injuries are 
> far less serious than those inflicted on Bryan by the X26 Taser—excruciating 
> pain throughout his entire body, temporary paralysis, facial abrasions, 
> shattered teeth, and a sharp barb lodged into his flesh. Thus, the use of 
> the Taser in drive-stun mode—as opposed to dart mode—seems unlike the 
> force used in Bryan or uses of force which this court has previously 
> considered severe. See, e.g., Davis, 478 F.3d at 1055 (holding that the 
> force used was "extremely severe" when officer slammed suspect head-first 
> into the wall, breaking his neck, then pressed to the ground by the 
> officer's knee and punched); Smith, 394 F.3d at 701-02 (severe when 
> officers pepper sprayed suspect four times and sicced a police dog on him 
> three times while he was pinned down, then failed to rinse the spray from 
> his eyes and bite wounds). Indeed, the amount of force here was more on 
> par with pain compliance techniques,[ 14 ] which this court has found 
> involve a "less significant" intrusion upon an individual's personal 
> security than most claims of force, even when they cause pain and injury. 
> Forrester, 25 F.3d at 807 (considering pain compliance techniques that 
> caused bruises, pinched nerves, and a broken wrist). Although certainly a 
> "serious intrusion," Mattos, 590 F.3d at 1087, when compared to the far 
> more serious intrusion in Bryan, we find the quantum of force here to be 
> less than the intermediate.[ 15 ]
> b. The Graham Factors
> i. Severity of the Crime
>
> [11] Brooks was detained for refusing to sign her name on the Notice. The 
> Officers were attempting to take her into custody for refusing to sign the 
> Citation to Appear (albeit erroneously, under the facts as Brooks states 
> them). Neither of these crimes were serious. As discussed above, see supra 
> Part III.A.1, Brooks's behavior also gave the Officers probable cause to 
> arrest her under Washington Revised Code § 9A.76.020(1) for obstructing a 
> police officer in the exercise of his official duties. This court has held 
> that in certain circumstances, obstruction of an officer can justify the 
> use of a Taser. See Mattos, 590 F.3d at 1087-88 (concluding that 
> plaintiff's obstruction of her husband's arrest made it more likely that 
> her husband would assault the officers). Although obstructing an officer 
> is a more serious offense than the traffic violations,[ 16 ] it is 
> nonetheless not a serious crime. See id.; Davis, 478 F.3d at 1055. This 
> factor weighs in favor of finding the force excessive.
> ii. Threat Posed to Officers or Bystanders
>
> [12] The threat posed is the most significant Graham factor. See Chew v. 
> Gates, 27 F.3d 1432, 1441 (9th Cir. 1994). The district court found that 
> Brooks posed no danger to the public or officers because she never used or 
> threatened force against the Officers (using it only to immobilize 
> herself) and could not have hurt anyone with her car. The last point stems 
> from the court's misunderstanding of the record; even Brooks admits that 
> the keys remained on the floorboard of her car and were not in the 
> Officers' possession. Whether the keys were on the floorboard or in the 
> Officers' possession, it seems clear that Brooks was not going to be able 
> to harm anyone with her car at a moment's notice. Nonetheless, some threat 
> she might retrieve the keys and drive off erratically remained, 
> particularly given her refusal to leave the car and her state of 
> agitation.
>
> [13] It would also be incorrect to say Brooks posed no threat to officers. 
> While she might have been less of a threat because her force so far had 
> been directed solely at immobilizing herself, a suspect who repeatedly 
> refuses to comply with instructions or leave her car escalates the risk 
> involved for officers unable to predict what type of noncompliance might 
> come next. A contemporaneous statement by Officer Jones confirms this 
> fear. That Brooks remained in her car, resisting even the pain compliance 
> hold the Officers first attempted, also reveals that she was not under 
> their control. Finally, the Washington legislature's action in making 
> obstructing an officer a gross misdemeanor for which custodial arrest is 
> appropriate suggests that Brooks posed the sort of threat that it was 
> appropriate to remove from the streets. See Wash. Rev. Code §§ 
> 9A.76.020(3), 10.31.100. Therefore, Brooks may not have posed a great 
> threat, she did pose some threat by virtue of her continued 
> non-compliance, which weighs against finding the less-than-intermediate 
> force excessive.
> iii. Resistance to Arrest and Risk of Flight
>
> [14] Though the risk of flight, as described above, was present but small, 
> there is little question that Brooks resisted arrest: the district court 
> noted she "does not deny that she used force to resist the [O]fficers' 
> efforts," she grasped the steering wheel and wedged herself between the 
> seat and steering wheel, and she refused to get out of the car when asked. 
> Brooks's conduct was defined by the SPD Use of Force Training Guideline as 
> "actively resistant" because she employed force to defeat the Officers' 
> attempts to control her. Our precedent also classifies Brooks's conduct as 
> active resistance. See Chew, 27 F.3d at 1442 (hiding and fleeing is 
> resisting arrest and offering physical resistance to an officer's efforts 
> constitutes a greater level of active resistance). While Brooks's 
> resistance may not have been violent or aggressive, those aspects are more 
> relevant to the second Graham factor, leaving the fact of her resistance 
> here to weigh against finding the force used excessive.
> c. Totality of the Circumstances
>
> In addition to the Graham factors described above, a consideration of the 
> totality of the circumstances may look to other factors as well. See 
> Forrester, 25 F.3d at 806 n.2. The district court posited that the 
> Officers could have controlled Brooks with "less violence." The 
> availability of alternative methods is a proper factor to consider, Smith, 
> 394 F.3d at 701, but it is unclear just how much it should be considered, 
> given that "the appropriate inquiry is whether the officers acted 
> reasonably, not whether they had less intrusive alternatives available to 
> them," Scott, 39 F.3d at 915. Some cases speculate as to available 
> alternatives, see Davis, 478 F.3d at 1056, while others look to expert 
> testimony and departmental determinations as to whether less intrusive 
> methods were available, see id.; Smith, 394 F.3d at 703, and still others 
> eschew hypothetical arguments about whether officers could have used 
> methods less painful or injurious as being part of an impermissible 
> after-the-fact analysis, see Forrester, 25 F.3d at 807-08 & n.4; cf. 
> Billington v. Smith, 292 F.3d 1177, 1188-89 (9th Cir. 2002) (recognizing 
> that expert evidence about less intrusive alternatives does not determine 
> reasonableness).
>
> [15] We agree with the Forrester panel here: the district court's general 
> and vague statement that there were "numerous other means of removing" 
> Brooks reflects after-the-fact speculation and fails to address what else 
> these officers could have done in the situation that confronted them at 
> that moment, when they needed to get the resistant Brooks out of the car 
> to arrest her. Furthermore, this case is unlike Smith and Davis, where 
> there was evidence suggesting it would have been reasonable to use less 
> force. Here, there has been no departmental determination that the 
> Officers could have used alternative methods. Indeed, the Officers 
> followed the SPD's Use of Force Training Guideline, applying pain 
> compliance techniques (of which drive-stun Taser use was one) to control 
> an actively resisting suspect.[ 17 ] It is true that two other pain 
> compliance methods would have also been appropriate under the policy in 
> light of Brooks's conduct—hair control holds and pepper spray—but 
> there is no indication those would have been less intrusive or worked 
> better, particularly given that Brooks had already resisted one pain 
> compliance hold and, as a large woman, had proved difficult to dislodge. 
> Also the pepper spray's effects would have lasted longer. See LaLonde v. 
> County of Riverside, 204 F.3d 947, 960-61 (9th Cir. 2000) (describing 
> pepper spray effects as lasting up to forty-five minutes). We thus find 
> the "availability of alternatives" factor does not weigh in favor of 
> finding the Officers' actions unreasonable.
>
> [16] Other factors we have considered also weigh against finding a 
> constitutional violation. The Officers gave multiple warnings that a Taser 
> would be used and explained its effects. See Deorle, 272 F.3d at 1284 
> (finding that warnings should be given, when feasible, before force more 
> serious than that employed here is used); see also Bryan, 590 F.3d at 780 
> (considering the failure to give a warning as a factor militating against 
> the reasonableness of X26 Taser usage). While the court may consider what 
> the officers knew about a suspect's health, see Franklin v. Foxworth, 31 
> F.3d 873, 876 (9th Cir. 1994), the record indicates that, when the 
> Officers discovered Brooks's pregnancy, they took steps to employ a 
> localized type of force away from her stomach. Brooks's arrest was 
> supported by probable cause under Washington law and the Officers' use of 
> force was in accordance with the SPD's Use of Force Training Guideline. 
> See Smith, 394 F.3d at 703 (considering whether the officer's conduct 
> "violated applicable police standards" in assessing the reasonableness of 
> the force used). These factors thus mitigate against a finding of 
> excessive force.
>
> [17] The Taser was used three times in this case, which constitutes a 
> greater application of force than a single tasing. Nonetheless, in light 
> of the totality of the circumstances, this does not push the use of force 
> into the realm of excessive. After the first use, Brooks did not 
> communicate that she was willing to comply with the Officers' commands, 
> but instead started yelling and honking her horn, which would likely have 
> been perceived by the Officers as an escalation of her resistance. The 
> same behavior followed the second tasing. The third tasing moved Brooks to 
> the right, at which point Officers Ornelas and Jones were able to extract 
> her from the car. Therefore, while using the Taser three times makes this 
> a closer case, we find that it does not show excessive force in light of 
> the corresponding escalation of Brooks's resistance and the fact that it 
> was the third tasing that appeared to dislodge her such that the Officers 
> could finally extract her from her car and gain control over her.
>
> [18] In conclusion, then, this case presents a less-than-intermediate use 
> of force, prefaced by warnings and other attempts to obtain compliance, 
> against a suspect accused of a minor crime, but actively resisting arrest, 
> out of police control, and posing some slight threat to officers. In this 
> situation, we find, assuming all the facts in Brooks's favor, that the 
> Officers' behavior did not amount to a constitutional violation. See 
> Arpin, 261 F.3d at 921-22 (finding no excessive force when physical force 
> was used to handcuff suspect who had refused to cooperate with an 
> officer's requests for identification and stiffened her arm and attempted 
> to pull free from the officer); Forrester, 25 F.3d at 807-08 (9th Cir. 
> 1994) (finding no excessive force when injury-causing pain compliance 
> holds were used against passively resisting demonstrators); see also 
> Draper, 369 F.3d at 1278 (finding no excessive force when officer used 
> Taser gun to effect the arrest of an uncooperative suspect for a traffic 
> violation). Therefore, the Officers are entitled to qualified immunity.[ 
> 18 ]
> IV.
>
> [19] Because the district court found that the Officers' conduct amounted 
> to excessive force, it declined to find qualified immunity for the 
> Officers on Brooks's state law claims. See Staats, 991 P.2d at 627-28 
> (holding that immunity is not available for assault and battery claims 
> "arising out of the use of excessive force to effectuate an arrest"). 
> However, because we find the Officers' use of force reasonable and not 
> excessive under the Fourth Amendment, we reach the issue. Under Washington 
> law, force used by a police officer is not unlawful "[w]henever 
> necessarily used . . . in the performance of a legal duty." Wash. Rev. 
> Code § 9A.16.020(1). Where the use of force is reasonable, an officer is 
> entitled to state law qualified immunity for assault and battery claims. 
> See McKinney v. City of Tukwila, 13 P.3d 631, 641 (Wash. App. 2000). As 
> discussed above, the Officers had probable cause under Washington law to 
> arrest Brooks for obstructing an officer in the exercise of his official 
> duties, did so at the behest of the superior officer on the scene, and 
> acted reasonably and in accordance with the SPD's Use of Force Training 
> Guideline. Thus, the Officers are entitled to immunity for these state law 
> claims.
> V.
>
> For the reasons discussed above, we REVERSE the district court and REMAND 
> for proceedings consistent with this opinion.
>
> BERZON, Circuit Judge, dissenting:
>
> I dissent.
>
> Here is what happened to Malaika Brooks, a pregnant mother, as she was 
> driving her son to school one day: Two, soon three, police officers 
> surrounded her. The officers thought she was speeding in a school zone; 
> she says she was not. Brooks provided her identification when asked, so 
> there was no doubt who she was or where to find her. The officers wrote 
> her a ticket but she refused to sign it. Refusing to sign a speeding 
> ticket was at the time a nonarrestable misdemeanor; now, in Washington, it 
> is not even that.[ 19 ] Brooks had no weapons and had not harmed or 
> threatened to harm a soul. Although she had told the officers she was 
> seven months pregnant, they proceeded to use a Taser on her, not once but 
> three times, causing her to scream with pain and leaving burn marks and 
> permanent scars.
>
> I fail utterly to comprehend how my colleagues are able to conclude that 
> it was objectively reasonable to use any force against Brooks, let alone 
> three activations of a Taser, in response to such a trivial offense. 
> Obviously, the sensible reaction to her refusal to acknowledge the ticket 
> in writing would have been to so note on the ticket and send her on her 
> way. Instead, a traffic offense — assuming it occurred — turned into 
> an encounter that inflicted physical and, in all likelihood, emotional 
> pain on a citizen who was not in any way dangerous to anyone. As "the 
> situation here was far from that of a lone police officer suddenly 
> confronted by a dangerous armed felon threatening immediate violence," 
> Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001), we should be 
> holding the force used constitutionally excessive. But the majority does 
> the opposite: it sanctions the use of painful force causing permanent 
> scars against a citizen who threatened no harm. I have no choice but 
> respectfully to dissent.
> I. Background
>
> As the majority's fact recital glosses over some critical facts, I begin 
> by supplementing it briefly.
>
> Malaika Brooks was driving her eleven-year-old son to school at the 
> African American Academy when she was stopped for speeding in a school 
> zone.[ 20 ] She gave the officer her license and told her son to get out 
> of the car and go to school. The officer, Officer Ornelas, prepared a 
> notice of infraction and asked Brooks to sign it. Convinced it was not she 
> but the driver in front of her who had been speeding, Brooks told Officer 
> Ornelas she would not sign the ticket because she did not want to admit 
> fault. She also grabbed her driver's license from Officer Ornelas but gave 
> it back after he told her he still needed it.
>
> The other officer on the scene, Officer Jones, then also asked Brooks to 
> sign the ticket. She told him she would accept the ticket but would not 
> sign it, because she had not been speeding. They began to argue: Officer 
> Jones told Brooks that signing the ticket was not an admission of guilt 
> and asked whether she could read. Brooks told Officer Jones that she 
> believed, based on past experience, that he was lying about what it meant 
> to sign the ticket, and that he was racist for suggesting she could not 
> read.[ 21 ]
>
> The Officers allege that they also issued Brooks a criminal citation and 
> notice to appear because she would not sign the notice of infraction and 
> that she refused to sign that as well. Brooks maintains she was only asked 
> to sign the notice of infraction. For purposes of this appeal, we are 
> required to view the facts in the light most favorable to Brooks, the 
> nonmoving party, and so, as the majority recognizes, must assume she was 
> never asked to sign a criminal citation.
>
> Officer Jones told Brooks she would have to go to jail if she did not sign 
> the ticket. He called his sergeant, Sergeant Daman, who soon arrived on 
> the scene.[ 22 ] Sergeant Daman asked Brooks whether she would sign the 
> ticket. When she would not, he instructed Officers Ornelas and Jones to 
> "book her." In response, Officer Ornelas told Brooks to get out of the 
> car. She refused. Officer Jones then produced his Taser. He yelled at 
> Brooks, asking her if she knew what the Taser was, how many volts it had, 
> and what it could do to her. She told him she did not. She also told him 
> that she was seven months pregnant and needed to use the restroom.
>
> Officers Ornelas and Jones began discussing where on Brooks's body they 
> should use the Taser. Up to this point, Brooks's car was still running, 
> but now Officer Ornelas reached inside, turned off the ignition, and 
> dropped the keys on the floorboard. Brooks continued to refuse to get out 
> of the car: she gripped the steering wheel, braced her legs against the 
> floor, and yelled for help. Officer Ornelas pulled Brooks's left arm up 
> behind her back and held it there while Officer Jones activated his Taser 
> against her body three times: once on her thigh, once on her left arm, and 
> once on her bare neck. While the voltage was inflicted Brooks was unable 
> to get out of the car, as Officer Ornelas was still holding her arm behind 
> her back. She experienced "tremendous pain," screamed for help, and, 
> instinctively, honked her horn.
>
> After using the Taser for the third time, the Officers dragged Brooks from 
> her car and laid her on her stomach in the street. She continued yelling 
> for help and told the Officers they were hurting her stomach. They held 
> her down until they had handcuffed her; then they walked her to the patrol 
> car and drove her to the police station.
>
> The Taser left burn marks on Brooks's thigh, arm, and neck. She has scars 
> on her thigh and upper arm. Her doctor has told her that the scar on her 
> arm is likely permanent.
> II. Probable Cause
>
> At the outset, I disagree with the majority's conclusion that the Officers 
> had probable cause to place Brooks under custodial arrest. Whether 
> Brooks's arrest was lawful has implications for both the federal Fourth 
> Amendment excessive force inquiry and the question whether the Officers 
> are entitled to qualified immunity from Brooks's state law claims.
>
> First, the majority's assertion that the Officers had "clear authority for 
> their initial arrest and detention of Brooks" is incorrect. Maj. op. at 
> 4924 (emphasis added). The Officers initially stopped Brooks for speeding 
> in a school zone; that offense is a civil infraction. See Seattle Mun. 
> Code § 11.52.100; Wash. Rev. Code §§ 46.61.440, 46.63.020. All the 
> Officers had authority to do at that point was to "detain" Brooks "for a 
> reasonable period of time necessary to identify [her], check for 
> outstanding warrants, check the status of [her] license, insurance 
> identification card, and the vehicle's registration, and complete and 
> issue a notice of traffic infraction." Wash. Rev. Code § 46.61.021 
> (2004); see also id. § 46.63.060 (2004).
>
> The majority's citation to Wash. Rev. Code § 46.64.015 in its discussion 
> of Brooks's initial detention is thus misplaced. That section refers not 
> to a "notice of traffic infraction" but to a "traffic citation and notice 
> to appear in court," which a police officer may serve on a person who has 
> committed a traffic violation "punishable as a misdemeanor or by 
> imposition of a fine." Id.
>
> In other words, the Officers did not have authority to arrest Brooks and 
> serve her with a citation and notice to appear until she refused to sign 
> the notice of infraction. Only then had she committed a misdemeanor. See 
> Wash. Rev. Code §§ 46.61.022, 46.61.021 (2004). And even then, as the 
> majority properly acknowledges, the Officers had no authority to take 
> Brooks into custodial arrest. Rather, they were entitled to detain her 
> only as long as "reasonably necessary to issue and serve a citation and 
> notice," Wash. Rev. Code § 46.64.015 (2004) — which, according to 
> Brooks, they never did.
>
> Because the record, viewed in the light most favorable to Brooks, is 
> bereft of facts to support a finding that the Officers had probable cause 
> to place Brooks under custodial arrest, the majority, casting about for a 
> theory, creates one from thin air: The majority maintains that there was 
> probable cause to arrest Brooks for obstructing an officer. Brooks was 
> never charged with obstructing an officer,[ 23 ] nor have the Officers 
> ever suggested that they had probable cause to arrest Brooks on that 
> ground. Because the Officers never raised this theory in their briefs, 
> Brooks has had no opportunity to dispute it. I would consider the question 
> waived and not address it. See Outdoor Media Group, Inc. v. City of 
> Beaumont, 506 F.3d 895, 900 (9th Cir. 2007); United States v. Williamson, 
> 439 F.3d 1125, 1138 (9th Cir. 2006).
>
> In any event, the majority fails satisfactorily to explain how Brooks 
> "obstructed" the Officers in the discharge of their powers or duties by 
> refusing to sign the notice of infraction. See Wash. Rev. Code § 
> 9A.76.020 (providing that "[a] person is guilty of obstructing a law 
> enforcement officer if the person willfully hinders, delays, or obstructs 
> any law enforcement officer in the discharge of his or her official powers 
> or duties"). When they stopped Brooks for speeding in a school zone, the 
> Officers were entitled "to identify [her], check for outstanding warrants, 
> check the status of [her] license, insurance identification card, and the 
> vehicle's registration, and complete and issue a notice of traffic 
> infraction." Wash. Rev. Code § 46.61.021 (2004). Brooks's refusal to sign 
> the notice of infraction — though a misdemeanor — did not prevent the 
> Officers from accomplishing any of those tasks. The Officers were fully 
> able to "complete and issue a notice of traffic infraction" without 
> obtaining Brooks's signature. In fact, they did so, writing "File Direct" 
> in the space provided for Brooks's signature. A refusal to provide a name 
> or current address might have frustrated the Officers' attempt to issue a 
> notice of infraction; the refusal to sign did not. The majority's attempt 
> to elevate the misdemeanor of refusing to sign the notice to the gross 
> misdemeanor of obstructing an officer is simply beyond the pale.
>
> Nor does the majority point to any authority supporting its off-the-wall 
> theory. The one case on the Washington obstructing-an-officer offense the 
> majority cites is certainly no help. In Lassiter v. City of Bremerton, 556 
> F.3d 1049 (9th Cir. 2009), the police responded to a 911 call from a 
> neighbor of Kenneth and Alpha Lassiter. The neighbor reported hearing 
> Kenneth threaten to cut Alpha's throat, and other threats were audible on 
> the 911 recording. When the officers arrived at the Lassiters' home, Alpha 
> reluctantly answered the door, then lied and said no one else was home. 
> The officers encountered Kenneth standing between the living room and 
> kitchen, and they insisted he sit down so that they could investigate a 
> possible assault. Kenneth repeatedly refused, and when an officer put his 
> hand on Kenneth, "ostensibly to guide him to a chair," Kenneth reacted by 
> grabbing the officer's arm. Id. at 1051. We held that the police had 
> probable cause to arrest Kenneth for obstructing an officer because "[his] 
> conduct made it impossible for the police to carry out their duty. More 
> than just a momentary noncompliance with police orders, his conduct had 
> the practical effect of precluding the officers from securing the scene 
> and investigating a possible assault." Id. at 1053.
>
> Brooks's behavior was in no way similar to Kenneth Lassiter's. Kenneth 
> Lassiter repeatedly failed to obey the officers and physically interfered 
> with the officers' attempt to require him to do so, "ma[king] it 
> impossible" for them to carry out their duty. Id. Brooks initially 
> cooperated with the Officers: she pulled over promptly and produced her 
> driver's license when asked to do so. As a result, the Officers were able 
> to carry out their duty of identifying her and issuing a notice of traffic 
> infraction. Then she refused to sign the notice. That's it. There was 
> noncompliance with a police request, but where is the "obstruction"?
>
> Far more similar to Brooks's behavior, although considerably more 
> colorable as an obstruction offense, is the behavior of the plaintiff in 
> Palmer v. Sanderson, 9 F.3d 1433 (9th Cir. 1993). Palmer, stopped on 
> suspicion of driving while intoxicated, submitted to two field sobriety 
> tests, but then told the officer he was tired of taking tests and returned 
> to his car. Palmer offered to answer questions in his car or to accompany 
> the officer to the police station to take a breath test. We held that 
> these facts, if credited, established that "no reasonable officer could 
> believe there was probable cause to arrest Palmer for `obstructing a 
> public servant,' " because Palmer, though uncooperative, did not actually 
> flee the scene. Id. at 1437.
>
> The majority should have reached the same result here as in Palmer. Brooks 
> stopped her car, she provided identification, and the Officers issued a 
> notice of infraction. The failure to sign the notice no more prevented the 
> Officers from carrying out their duty than did Palmer's refusal to 
> cooperate further after taking two field sobriety tests.
>
> In short, there was just no cause to arrest Brooks for obstructing an 
> officer. None. That is probably why the Officers have never suggested that 
> there was.
>
> The majority also comes up with an alternative theory to justify the 
> custodial arrest, also never argued by the Officers and so also waived, 
> relying on State v. Hehman, 578 P.2d 527 (Wash. 1978). This approach is 
> not a whit better on the merits than the majority's other creation.
>
> Hehman held that custodial arrest is generally not proper for a minor 
> traffic violation, id. at 529, but suggested that such an arrest might be 
> permissible "when there are reasonable grounds to believe that the accused 
> will refuse to respond to a citation." Id. at 528 (quoting ABA Standards 
> Relating to Pretrial Release § 2.1 (Tent. Draft Mar. 1968)). In all three 
> cases adopting that suggestion cited by the majority, including one 
> unpublished decision by the Washington Court of Appeals, the person 
> arrested failed to produce any identification and either did not own or 
> did not claim to own the vehicle he was driving. See State v. Covington, 
> 144 Wash. App. 1012 (Wash. Ct. App. 2008) (unpublished); State v. Jordan, 
> 747 P.2d 1096 (Wash. Ct. App. 1987); State v. McIntosh, 712 P.2d 319 
> (Wash. Ct. App. 1986). The Washington courts have never approved a 
> custodial arrest for a non-arrestable offense where the driver, like 
> Brooks, produced identification and owned the car she was driving. No case 
> supports the majority's assertion that limited uncooperative behavior is 
> enough to provide "reasonable grounds to believe that the accused will 
> refuse to respond to a citation." Hehman, 578 P.2d at 528.
>
> Here, Brooks's explanation for her refusal to sign was that she did not 
> want to indicate she was guilty, not that she intended to ignore the 
> ticket. And, given that the Officers had and recorded Brooks's name and 
> address, there were no reasonable grounds for believing that the City 
> would be unable to hold Brooks accountable for the infraction or 
> misdemeanor. Thus, Washington's narrow exception to the usual preclusion 
> of custodial arrest for a minor traffic violation does not apply, and the 
> majority's conclusion that the Officers had probable cause to place Brooks 
> under custodial arrest for the traffic violation itself is wrong.
>
> The absence of probable cause to support a custodial arrest affects both 
> the excessive force inquiry and the question whether the Officers are 
> entitled to state qualified immunity.
> III. Excessive Force
>
> Because I find the majority's excessive force analysis entirely 
> unpersuasive at each turn, I revisit each step of the objective 
> reasonableness inquiry under Graham v. Connor, beginning with "the nature 
> and quality of the intrusion on [Brooks's] Fourth Amendment interests." 
> Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Tennessee v. Garner, 
> 471 U.S. 1, 8 (1985)).
> A. Nature and Quality of Intrusion
>
> I begin from the proposition that "[t]he three factors articulated in 
> Graham, and other factors bearing on the reasonableness of a particular 
> application of force, are not to be considered in a vacuum but only in 
> relation to the amount of force used to effect a particular seizure." 
> Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (quoting Chew v. 
> Gates, 27 F.3d 1432, 1441 (9th Cir. 1994)). The majority acknowledges this 
> court's determination in Mattos v. Agarano, 590 F.3d 1082 (9th Cir. 2010) 
> (per curiam), that a single application of a Taser in drive-stun mode to 
> the back of a suspect's hand amounted to "a serious intrusion into the 
> core of the interests protected by the Fourth Amendment: the right to be 
> `secure in [our] persons.' " Id. at 1087 (quoting U.S. CONST. amend IV). 
> Nonetheless, the majority minimizes the amount of force the Officers used 
> against Brooks in two different ways: (1) it distinguishes between the 
> Taser's two operating modes, the more commonly employed dart mode and the 
> drive-stun mode used in this case, and (2) it compares the drive-stun mode 
> to "pain-compliance techniques." Neither consideration has anything to do 
> with the factors that really matter here: The force used was quite 
> painful, and it left permanent scars.
>
> As to the majority's first factor, we have held that Tasers used in dart 
> mode "constitute an intermediate, significant level of force that must be 
> justified by a strong government interest that compels the employment of 
> such force." Bryan v. McPherson, 590 F.3d 767, 774-75 (9th Cir. 2009) 
> (quoting Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057 
> (9th Cir. 2003)) (internal quotations and brackets omitted). The majority 
> observes that using a Taser in drive-stun mode does not cause the same 
> neuromuscular incapacitation that the dart mode produces. Noting that the 
> Taser deployment in Bryan caused the suspect to fall to the pavement and 
> shatter his teeth, the majority concludes that, "when compared to the far 
> more serious intrusion in Bryan, we find the quantum of force here to be 
> less than the intermediate." Maj. op. at 4932. But in Mattos, we 
> characterized the single activation of a Taser in drive-stun mode as a 
> "serious intrusion." And the Eighth Circuit in Brown v. City of Golden 
> Valley, 574 F.3d 491 (8th Cir. 2009), held that a reasonable jury could 
> find that a single application of a Taser in drive-stun mode to the arm of 
> an individual suspected of committing a "minor, nonviolent crime[ ]" and 
> who posed no "realistic threat to [the officer's] safety" constituted 
> excessive force. Id. at 497-98. Although the court explained the 
> difference between the dart and drive-stun modes, id. at 495 n.3, the 
> distinction played no role in the court's excessive force analysis.
>
> As to the majority's second factor, the majority minimizes the amount of 
> force used in this case by equating it to "paincompliance techniques," 
> which it asserts "this court has found involve a `less significant' 
> intrusion upon an individual's personal security than most claims of 
> force." Maj. op. at 4932 (quoting Forrester v. City of San Diego, 25 F.3d 
> 804, 807 (9th Cir. 1994)). The majority states, somewhat misleadingly, 
> that "[t]he use of a Taser in drive-stun mode is considered a pain 
> compliance technique . . . by . . . our jurisprudence." Maj. op. at 4932 
> n.14 (citing San Jose Charter of Hells Angels Motorcycle Club v. City of 
> San Jose, 402 F.3d 962, 969 n.8 (9th Cir. 2005)). But San Jose Charter did 
> not distinguish between Taser modes or even mention the drive-stun mode; 
> it simply noted that the officers in that case "did not bring with them 
> any of the variety of non-lethal `pain compliance' weapons used by police 
> forces, such as tasers or stunbag shotguns." 402 F.3d at 969 n.8.
>
> In fact, that footnote defeats the majority's suggestion that 
> pain-compliance techniques are necessarily a "less significant" intrusion 
> than most claims of force. The other paincompliance weapon identified in 
> the footnote, a stunbag shotgun, has been recognized by this court as 
> capable of causing "grave physical injury." Deorle, 272 F.3d at 1279 
> (holding that "the degree of force used by [the officer] is permissible 
> only when a strong governmental interest compels the employment of such 
> force," id. at 1280). Moreover, we have held that Forrester cannot be read 
> so broadly as to apply to all so-called pain-compliance techniques:
>
>    Forrester did not hold that pain compliance techniques are 
> constitutionally permissible as a matter of law. Nor did it establish a 
> rule of qualified immunity for the use of pain compliance techniques to 
> arrest passively resisting misdemeanants. Forrester simply held that 
> whether the use of [Orcutt Police Nonchakus, two sticks of wood connected 
> at one end by a cord] as a pain compliance technique constituted excessive 
> force was a question of fact that was properly submitted to the jury for 
> its decision.
>
> Headwaters Forest Defense v. County of Humboldt (Headwaters I), 240 F.3d 
> 1185, 1201 (9th Cir. 2000), vacated on other grounds, 534 U.S. 801 (2001) 
> (internal quotation omitted).
>
> The majority's emphasis on placing a specific Taser mode in a 
> predetermined category of degree of force for purposes of a Graham 
> analysis is thus entirely wrongheaded. In short, "[r]ather than relying on 
> broad characterizations, we must evaluate the nature of the specific force 
> employed" on Brooks in this case. Bryan, 590 F.3d at 774; see Deorle, 272 
> F.3d at 1279 (considering the specific effects of the force used on the 
> suspect as part of the quantum of force inquiry).
>
> Doing so, I would conclude that the degree of force used on Brooks was 
> significant. Before Officer Jones used his Taser on Brooks, Officer 
> Ornelas pulled her left arm up behind her back and held it there. That 
> "pain-compliance" hold prevented Brooks from complying with the Officers' 
> subsequent demands that she get out of her car. While Brooks was thus 
> immobilized, Officer Jones used his Taser on her three times: first he 
> applied it to her thigh, then he "dug it into" her left arm, and finally 
> he deployed it against her bare neck. At least on the second and third 
> uses, Officer Jones cycled the Taser through its full five-second cycle 
> while Brooks screamed for help. Brooks experienced "tremendous pain," 
> fear, and "shock." She began crying and instinctively honked her horn. The 
> Officers then dragged Brooks from the car, laid her on her stomach in the 
> street, and held her down while they handcuffed her, despite her 
> protestations that she was pregnant and they were hurting her stomach. The 
> Taser left burn marks on Brooks's thigh, shoulder, and neck. It also left 
> scars, including a scar on her arm that is probably permanent.
>
> In sum, the Officers inflicted a significant and frightening amount of 
> force at a time when Brooks was already immobilized by a pain-compliance 
> hold. The three Graham factors, and other factors bearing on 
> reasonableness, must be considered in light of that force.
> B. Governmental Interests at Stake
> 1. Severity of the Crime
>
> "The character of the offense is often an important consideration in 
> determining whether the use of force was justified." Deorle, 272 F.3d at 
> 1280. As the majority recognizes, for purposes of this appeal the only 
> crime Brooks committed was the misdemeanor of refusing to sign the notice 
> of infraction. Maj. op. at 4919 n.3. The majority acknowledges that that 
> crime was not "serious." Id. at 4932. In fact, it was trivial. At the 
> time, it was not an arrestable offense, and today, the signature 
> requirement no longer exists. See 2006 Wash. Legis. Serv. Ch. 270 (H.B. 
> 1650). This factor favors Brooks overwhelmingly.
>
> Even if the majority is correct that there was probable cause to arrest 
> Brooks for obstructing an officer, that crime, as committed by Brooks (if 
> it was), was also minor. See Davis v. City of Las Vegas, 478 F.3d 1048, 
> 1055 (9th Cir. 2007) ("Trespassing and obstructing a police officer, as 
> those offenses were committed by [the suspect], are by no means such 
> serious offenses as to provide an officer with a reasonable basis for 
> subduing a person by the means employed by Officer Miller."); Deorle, 272 
> F.3d at 1281-82 (holding that "the crime being committed, if any, was 
> minor" where the suspect "was charged with nothing more than obstructing 
> the police in the performance of their duties").
>
> This court has held that crimes significantly more severe than obstructing 
> an officer do not justify the use of force against a suspect. In Smith, 
> the suspect's wife called the police to report that he had physically 
> abused her. Acknowledging "the seriousness and reprehensibility of 
> domestic abuse," the court nonetheless held that "the circumstances are 
> not such in this case as to warrant the conclusion that Smith was a 
> particularly dangerous criminal or that his offense was especially 
> egregious." Smith, 394 F.3d at 702-03. The court concluded that "the 
> nature of the crime at issue provides little, if any, basis for the 
> officers' use of physical force." Id. at 703. In comparison, Brooks was 
> many fathoms from being a "dangerous criminal." She was not suspected of 
> harming anyone at all, just of refusing to sign a piece of paper. The 
> crimes she is alleged to have committed were trivial and provided no 
> justification for the use of any force, let alone the significant force 
> the Officers employed.
>
> The majority points to Mattos, in which this court held that using a Taser 
> against a woman charged with obstructing government operations did not 
> constitute excessive force. See 590 F.3d at 1089. In Mattos, however, the 
> police had responded to a domestic violence call, and the woman's actions 
> prevented them from arresting her husband, who was "belligerent and 
> appeared to be intoxicated." Id. at 1088. The court considered the 
> situation particularly dangerous and noted that "more officers are killed 
> or injured on domestic violence calls than on any other type of call." Id. 
> (quoting United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005)). 
> We acknowledged that obstructing the officers was "not a serious crime," 
> but also took into consideration the judgment that the woman's actions 
> "carried the potential for a far more serious crime — assault on an 
> officer." Id. Preventing officers from arresting another person who 
> appears to pose some danger to them is a far cry from refusing to sign a 
> traffic ticket. Mattos does nothing to suggest that Brooks's crime was 
> anything but minor.
> 2. Immediate Threat to the Safety of Others
>
> The "most important single element of the three [Graham] factors [is] 
> whether the suspect poses an immediate threat to the safety of the 
> officers or others." Smith, 394 F.3d at 702 (quoting Chew, 27 F.3d at 
> 1441) (emphasis added). Had the majority applied this factor correctly, it 
> is inconceivable that it would have determined that Brooks presented an 
> "immediate threat." Instead, the majority excises the word "immediate" 
> from the inquiry, departs from the record to speculate about actions 
> Brooks might have taken, and concludes, rather inexplicably, that a mother 
> driving her son to school did pose "some threat." Maj. op. at 4934. That 
> is not true on this record and, in any event, under Graham, not enough.
>
> The majority offers three reasons for its conclusion that Brooks posed 
> "some threat." None is remotely convincing.
>
> First, the majority suggests Brooks might have retrieved her car keys from 
> the floorboard, where Officer Ornelas had dropped them, and "drive[n] off 
> erratically." Id. at 4933. To begin with, it is very unlikely that Brooks, 
> who was seven months pregnant and weighed over 240 pounds, was even 
> capable of getting to her keys, restarting the ignition, and driving off 
> before the Officers could stop her. Nor is there any indication whatever 
> in the record that Brooks was inclined to flee. Had she been, she had 
> ample opportunity to do so; instead, she provided identifying information 
> when asked and waited while Officer Ornelas wrote a ticket.
>
> Even if Brooks were somehow able to retrieve her keys and drive off, it is 
> purely speculative to suggest that her driving might have been "erratic" 
> and posed some threat to the Officers or others. This case is nothing like 
> Miller v. Clark County, 340 F.3d 959 (9th Cir. 2003), in which the officer 
> "was entitled to assume that [the suspect] posed an immediate threat," in 
> part because the officer knew he "was a felony suspect wanted for the 
> crime of attempting to flee from police by driving a car with a wanton or 
> willful disregard for the lives. . . of others, . . . a crime that evinces 
> a willingness to threaten others' safety in an attempt to escape 
> responsibility for past crimes." Id. at 965 (internal citation omitted). 
> Brooks was not a felony suspect, and she had never shown any propensity to 
> flee from the police, whether "with a wanton or willful disregard for the 
> lives of others" or otherwise. Moreover, the majority's imagined scenario 
> certainly does not qualify as an "immediate threat," and the majority 
> admits as much, stating that "it seems clear that Brooks was not going to 
> be able to harm anyone with her car at a moment's notice." Maj. op. at 
> 4933.
>
> The stacked-up, unsubstantiated speculations that Brooks might have been 
> able to retrieve the keys and might have decided to drive off (although 
> she did not when she had the keys) and might have driven erratically if 
> she did drive off and might have endangered people had she done so simply 
> won't do as a basis for believing Brooks posed a danger to someone. 
> Indeed, if Officer Ornelas really believed she was going to take off and 
> endanger people, all he had to do was hold on to the keys rather than drop 
> them in the car.
>
> Second, the majority contends that Brooks posed a threat to the Officers' 
> safety because she had refused to comply with their demands that she leave 
> her car, and they were "unable to predict what type of noncompliance might 
> come next." Id. at 4933-34. Like the earlier suggestion that Brooks might 
> retrieve her keys and drive off erratically, the suggestion that she might 
> engage in some unpredictable and dangerous act of noncompliance is based 
> on nothing. "The record does not reveal an articulable basis for believing 
> that [Brooks] was armed or that [she] posed an immediate threat to 
> anyone's safety." Chew, 27 F.3d at 1441. On the contrary, she had just 
> dropped her son off at school, she was not suspected of any but the most 
> trivial of crimes, she was unarmed, and she sat wedged in a car that was 
> not running and in which she could not easily reach her keys. She had not 
> harmed or threatened to harm anyone. Officer Ornelas had performed a 
> warrant check and found that she was "all clear." Given all of that, there 
> is just no evidence that Brooks posed any threat to anyone's safety, let 
> alone an immediate threat — much less so, in fact, than in other cases 
> in which we have held that there was no realistic danger to officers or 
> others. See Smith, 394 F.3d at 702 (holding that, despite the suspect's 
> agitation and his initial refusal to remove his hands from his pockets, "a 
> rational jury could very well find that he did not, at any time, pose a 
> danger to the officers or others" because there was "no indication in the 
> record that . . . there was any reason to believe that he possessed any 
> weapon," and he "made no threats, verbal or physical, toward [the officer] 
> or anyone else"); Deorle, 272 F.3d at 1281-82 (concluding that "the danger 
> to [the officer] and others appears to have been minimal" where the 
> suspect was emotionally disturbed but "had discarded his crossbow . . . 
> and carried only a bottle or a can" and "had not harmed or attempted to 
> harm anyone"); Chew, 27 F.3d at 1442 (holding that a rational jury could 
> "easily" find that a suspect who fled a traffic stop and hid in a scrap 
> yard for ninety minutes but did not "engage[ ] in any threatening behavior 
> during this time" "posed no immediate safety threat to anyone").
>
> The majority cites Officer Jones's incident report, which recounts his 
> assessment of the situation as "very dangerous." But "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." 
> Deorle, 272 F.3d at 1281. Officer Jones says he was concerned because the 
> car was still running. But by the time Officer Jones used his Taser on 
> Brooks, it was not running. Officer Ornelas had already taken the keys 
> from the ignition and dropped them on the floorboard. The majority is 
> unable to point to any objective factors to justify Officer Jones's 
> perception that the situation was so dangerous that he needed to use his 
> Taser — not once, but three times — on a pregnant woman ensconced in a 
> car.
>
> Finally, the majority relies, entirely inappropriately, on the Washington 
> legislature's determination that obstructing an officer is an arrestable 
> offense to conclude that "Brooks posed the sort of threat that it was 
> appropriate to remove from the streets." Maj. op. at 4934. First, as I 
> have already explained, Brooks was not even arguably guilty of obstructing 
> an officer. Second, it cannot be the case that every person who obstructs 
> an officer also "poses an immediate threat to the safety of the officers 
> or others." Smith, 394 F.3d at 702. "[A]n officer's use of force must be 
> objectively reasonable based on his contemporaneous knowledge of the 
> facts." Deorle, 272 F.3d at 1281. This court cannot judge whether a 
> suspect posed an immediate threat to the safety of others simply by 
> looking to whether she is suspected of an arrestable offense. Instead, 
> there must be an "articulable basis" in the record for believing the 
> suspect is not only a suspect but a dangerous one. Chew, 27 F.3d at 1441. 
> In this case, it is clear there was no such basis, "articulable" or 
> otherwise. Thus, this "most important" Graham factor weighs heavily in 
> Brooks's favor. Smith, 394 F.3d at 702.
> 3. Resistance to Arrest or Evading Arrest by Flight
>
> The third Graham factor is whether the suspect was "actively resisting 
> arrest or attempting to evade arrest by flight." Smith, 394 F.3d at 701 
> (quoting Graham, 490 U.S. at 396). The majority begins by asserting that 
> "the risk of flight . . . was present." Again, that is the wrong inquiry. 
> The question is not whether Brooks might have been able to flee had she 
> decided to try, but whether she was "attempting to evade arrest by 
> flight." See Smith, 394 F.3d at 703 ("Smith did not attempt to run from 
> the officers."). It is clear from the record that she was not.
>
> As to the question of resisting arrest, the majority is likely correct 
> that Brooks's conduct would have been classified as "actively resistant" 
> under the Seattle Police Department's Use of Force Training Guideline. The 
> guideline defines an "actively resistant" suspect as one who "physically 
> tenses his or her muscles and/or locks their arms and legs using resistive 
> tension to avoid being controlled by the officer." Brooks does not dispute 
> the Officers' report that she held on to the steering wheel and braced her 
> legs against the floor to avoid being pulled from her car.
>
> All told, however, Brooks's resistance was minimal. The majority misleads 
> when it says she "employed force to defeat the Officers' attempts to 
> control her." Maj. op. at 4934. Although she tensed her muscles to prevent 
> her own body from being moved, she did not use force against the Officers. 
> This level and type of resistance, if it weighs against a finding of 
> excessive force at all, does so only slightly. See Smith, 394 F.3d at 
> 702-03 (concluding that the suspect's resistance was not "particularly 
> bellicose" because "he did not attack the officers," even though he 
> "continually ignored the officers' requests to remove his hands from his 
> pajamas and to place them on his head" and "shout[ed] expletives at the 
> officers"); see also Davis, 478 F.3d at 1056 (holding that a suspect who 
> was "somewhat uncooperative and resisted [the officer's] attempts to 
> search his pockets" was not "actively resisting arrest").
> C. Totality of the Circumstances
>
> An additional factor this court may consider in its Graham analysis is 
> whether the Officers' conduct "violated applicable police standards." 
> Smith, 394 F.3d at 703. This factor is particularly important in a case, 
> like this one, in which there was no probable cause to support a custodial 
> arrest. According to the Seattle Police Department's Policy and Procedure 
> Manual, an officer may "use only the minimal amount of force necessary to 
> overcome physical aggression or resistance to compliance with a lawful 
> process." (Emphasis added.) Also, nondeadly force is justified only when 
> "necessarily used . . . [i]n the performance of a legal duty."
>
> Officer Ornelas, testifying in Brooks's criminal trial, confirmed that 
> departmental regulations prohibited taking Brooks into custody for 
> refusing to sign the notice of infraction:
>
>    PROSECUTOR: So, then just so I make sure I am clear then and to make 
> sure I'm not misunderstanding, although she refused to sign the speeding 
> ticket, which itself is a crime, you did not book her for that.
>
>    ORNELAS: Correct, sir.
>
>    PROSECUTOR: Could you within your discretion if you had wanted to at 
> that point?
>
>    ORNELAS: Do what, sir?
>
>    PROSECUTOR: Arrest her for refusing to sign the speeding ticket —
>
>    ORNELAS: No, sir.
>
> Because the Officers knew they had no authority to effect a custodial 
> arrest, they were not performing a legal duty and Brooks was not refusing 
> to comply "with a lawful process." Under the Seattle Police Department's 
> own policies, then, the Officers were not justified in using any force. 
> The Officers' failure to comply with departmental standards is evidence a 
> jury could rely on in deciding that the repeated use of a Taser — any 
> Taser — on Brooks was unreasonable. See Smith, 394 F.3d at 703.
>
> The court may also consider the availability of alternative methods of 
> dealing with a suspect that adequately ensure that the suspect will be 
> subject to conviction and punishment. Cf. Smith, 394 F.3d at 703. The 
> majority rejects the district court's finding that there were "numerous 
> other means of removing" Brooks from her car, characterizing that finding 
> as "reflect[ing] after-the-fact speculation and fail[ing] to address what 
> else these officers could have done in the situation that confronted them 
> at that moment, when they needed to get the resistant Brooks out of the 
> car to arrest her." Maj. op. at 4935. The flaw in the majority's reasoning 
> is its underlying assumption: that the Officers "needed" to remove Brooks 
> from her car.
>
> Again, the Officers had no authority to effect a custodial arrest. They 
> had already obtained Brooks's name and address on the notice of 
> infraction, and there was no need to compel her to sign the notice. The 
> Officers could simply make a notation indicating that Brooks had not 
> signed — in fact, they did exactly that. The clear alternative open to 
> the Officers in this case — and one infinitely more sensible than the 
> route they chose — was to allow Brooks to go on her way.
>
> Finally, the majority maintains that the Officers' decision, upon being 
> informed of Brooks's pregnancy, "to employ a localized type of force away 
> from her stomach . . . . mitigate[s] against a finding of excessive 
> force." Id. at 4936. I fail to see how the majority could so conclude. The 
> Officers could not have known how this woman who was seven months pregnant 
> would respond, physically or psychologically, to the repeated application 
> of thousands of volts of electricity to any part of her body. They could 
> not be sure, for instance, that the pain and shock would not cause 
> premature labor. See March of Dimes, Preterm Labor and Birth: A Serious 
> Pregnancy Complication (April 2008), http://www.marchofdimes.com/ 
> pnhec/188_1080.asp (citing physical abuse and stress as risk factors for 
> premature labor). Brooks's physical condition militates in favor of 
> finding excessive force.
>
> In sum, Brooks committed a trivial, nonviolent, and nonarrestable crime. 
> There is no evidence that she posed any threat at all to the safety of the 
> Officers or others. Her resistance was minimal and nonviolent and she was 
> not attempting to flee. The Officers violated departmental standards by 
> using force when they had no authority to effect a custodial arrest.
>
> In these circumstances, no amount of force was justified. For "the essence 
> of the Graham . . . analysis is that the force which was applied must be 
> balanced against the need for that force: it is the need for force which 
> is at the heart of the Graham factors. . . . [W]here there is no need for 
> force, any force used is constitutionally unreasonable." Headwaters I, 240 
> F.3d at 1199 (internal quotations omitted). And, just as the Eighth 
> Circuit held in Brown that a reasonable jury could find that a single 
> application of a Taser in drive-stun mode to the arm of an individual 
> suspected of committing a "minor, nonviolent crime[ ]" and who posed no 
> "realistic threat to [the officer's] safety" constituted excessive force, 
> 574 F.3d at 498, so there is no question whatever that a reasonable jury 
> could find that the repeated use of a Taser on a woman driving her son to 
> school whose only crime was refusing to sign a notice of infraction was 
> objectively unreasonable.
> D. Qualified Immunity
>
> Because I think it obvious that the Officers violated Brooks's 
> constitutional right to be free from unreasonable seizure by using 
> (grossly) excessive force on her, I reach the second step of the qualified 
> immunity inquiry: whether the right violated was clearly established in a 
> "particularized . . . sense." Saucier v. Katz, 533 U.S. 194, 202 (2001), 
> overruled on other grounds by Pearson v. Callahan, 129 S. Ct. 808 (2009). 
> The question is whether the Officers' "use of force was premised on a 
> reasonable belief that such force was lawful, or . . . `whether it would 
> be clear to a reasonable officer that his conduct was unlawful in the 
> situation he confronted.'" Deorle, 272 F.3d at 1285 (quoting Saucier, 533 
> U.S. at 202).
>
> Contrary to the majority's suggestion, the relative scarcity of federal 
> cases resolving excessive force claims arising from the use of Tasers does 
> not preclude a denial of qualified immunity. "[N]otwithstanding the 
> absence of direct precedent, the law may be, as it was here, clearly 
> established. Otherwise, officers would escape responsibility for the most 
> egregious forms of conduct simply because there was no case on all fours 
> prohibiting that particular manifestation of unconstitutional conduct." 
> Deorle, 272 F.3d at 1285-86 (internal citation omitted). When there is no 
> case law directly on point, the question we must ask is "whether the state 
> of the law at the time of the alleged wrong gave the defendants fair 
> warning that their alleged treatment of the plaintiff was 
> unconstitutional." Davis, 478 F.3d at 1056 (quoting Hope v. Pelzer, 536 
> U.S. 730, 741 (2002)) (internal quotations and brackets omitted).
>
> Here, there is "no question that any reasonable officer would have known 
> that the force used was excessive, from an elementary understanding of the 
> obligations of law enforcement officers toward all individuals in the 
> community they serve as well as from a review of the well-established 
> law." Davis, 478 F.3d at 1056-57. This is not a close case. Any reasonable 
> officer should have known that using a Taser repeatedly on a pregnant 
> woman who had committed a trivial, nonviolent crime and who posed no 
> realistic threat to the safety of others was unlawful. Even if the 
> Officers did irrationally perceive some threat at the time (rather than 
> developing a post-hoc explanation for their behavior), that would not 
> suffice; a reasonable officer would not have seen any danger in the 
> objective circumstances. And "a number of our cases . . . inform law 
> enforcement officers of their obligation under the Constitution to refrain 
> from the use of excessive force." Id. Just as Brown, 574 F.3d at 499, held 
> that "[a]t the time [the officer] deployed his Taser and arrested [the 
> plaintiff], the law was sufficiently clear to inform a reasonable officer 
> that it was unlawful to Taser a nonviolent, suspected misdemeanant who was 
> not fleeing or resisting arrest, who posed little to no threat to anyone's 
> safety," so I would hold the law here sufficiently clear to inform the 
> Officers that using a Taser, in any mode, to subdue Brooks was 
> unconstitutional. See Bryan, 590 F.3d at 782 ("No reasonable officer 
> confronting a situation where the need for force is at its lowest — 
> where the target is a nonviolent, stationary misdemeanant twenty feet away 
> — would have concluded that deploying intermediate force without warning 
> was justified.").[ 24 ]
>
> For these reasons, the Officers are not entitled to summary judgment on 
> Brooks's § 1983 claim.
> IV. State Qualified Immunity
>
> Nor are the Officers entitled to qualified immunity from Brooks's state 
> law claims. Under Washington law, qualified immunity is not available "for 
> claims of assault and battery arising out of the use of excessive force to 
> effectuate an arrest." Staats v. Brown, 991 P.2d 615, 627-28 (Wash. 2000). 
> Even if there were no excessive force, however, I would still disagree 
> with the majority's grant of state qualified immunity, because the 
> Officers effected a custodial arrest in contravention of Washington law.
>
> The standard for Washington state qualified immunity is different from the 
> standard for qualified immunity under federal law. See Staats, 991 P.2d at 
> 627. Under Washington law, an officer is entitled to qualified immunity 
> from state law assault and battery claims only if the officer "(1) carries 
> out a statutory duty, (2) according to procedures dictated to him by 
> statute and superiors, and (3) acts reasonably." Id. (internal quotation 
> omitted). An officer does not fulfill his statutory duty when he 
> "consummate[s] the arrest contrary to existing court rule and statute." 
> Id. Also, "an arrest amounting to a statutory violation [cannot] be 
> `reasonable.' " Id.
>
> Applying these rules in Staats, the Washington Supreme Court denied state 
> qualified immunity to a state fish and wildlife officer whose actions were 
> similar to those of the Officers in this case. Id. at 626-28. The 
> plaintiff in Staats refused to provide the defendant wildlife patrol 
> officer with identification. After the "quite heated discussion" that 
> followed Staats's refusal, the officer arrested him for "refusing to 
> cooperate to receive a citation, contrary to former RCW 75.10.040 (1992)." 
> Id. at 618. At that point, Staats "sidestepped and attempted to walk away" 
> from the officer. Id. The officer then grabbed him and allegedly "slammed" 
> him to the ground. The officer also purportedly "pulled Staats' ears 
> straight out from his head causing extreme pain and suffering." Id. Staats 
> was later charged with both "refus[ing] to give information to an officer 
> performing his duties, contrary to former RCW 75.10.040," and "resisting 
> arrest, contrary to RCW 9A.76.040." Id.
>
> After reviewing the text of Wash. Rev. Code § 75.10.040 and the case law 
> interpreting the statute, the court concluded that Staats's "arrest for 
> refusal to provide identification" was unlawful because "(1) simply 
> withholding information is not criminal resistance under [the] statute as 
> a matter of law, and (2) [the officer] was not acting in discharge of a 
> duty when he demanded information to support issuance of a citation he had 
> no lawful authority to issue." Id. at 623. The court further held that, 
> because the officer had "consummated the arrest contrary to existing court 
> rule and statute," he was not entitled to state qualified immunity. Id. at 
> 627.
>
> In this case, as I have explained, the relevant statutes did not permit 
> the Officers to take Brooks into custody for refusing to sign the notice 
> of infraction. Thus, the Officers "consummated the arrest contrary to 
> existing . . . statute." Id. That statutory violation also made the 
> Officers' conduct unreasonable. See id. Under Washington law, the Officers 
> are not entitled to summary judgment on Brooks's state law claims.
> V. Conclusion
>
> For these reasons, I would affirm the district court's order denying 
> summary judgment to the Officers. I respectfully dissent.
> 1. The district court granted summary judgment to the City of Seattle, 
> SPD, and the police chief on Brooks's § 1983 or state law claims.
> 2. Because this appeal arises from a denial of summary judgment, we assume 
> that the version of material facts asserted by Brooks, the nonmoving 
> party, is correct. See Robinson v. Prunty, 249 F.3d 862, 866 (9th Cir. 
> 2001).
> 3. The Notice of Infraction gives notice that a traffic law has been 
> violated and requires a signature indicating, without admitting to the 
> crime, that the recipient will respond as directed by the Notice. See 
> Wash. Rev. Code § 46.63.060. The Notice should be distinguished from a 
> Citation to Appear, which is a separate document that includes the 
> violation allegedly committed, but requires a signature promising to 
> appear in court. See Wash. Rev. Code § 46.64.015.
>
> There is considerable dispute as to whether the Officers gave Brooks both 
> a Notice based upon her speeding and violation and a Citation to Appear 
> based upon her refusal to sign the Notice. Officer Jones maintains that he 
> asked Brooks about both the Notice and the Citation to Appear. Sergeant 
> Daman claims he was also asking about both when he asked Brooks if she 
> would sign "the ticket." Confusing matters, the Notice and the Citation to 
> Appear are frequently referred to by all parties interchangeably as 
> "tickets" or "citations" even though the penalty for refusing to sign them 
> is quite different. Nonetheless, Brooks maintains that she thought the 
> "ticket" she was being asked to sign here was still the Notice. This panel 
> must view the facts in the light most favorable to her and assume she did 
> not refuse to sign the Citation to Appear.
> 4. Brooks has had a previous encounter with Notices and Citations to 
> Appear. During a 1996 traffic incident, she refused to sign both the 
> Notice and the Citation to Appear because she did not think she was guilty 
> of the traffic offense underlying the Notice. In that case, the ticketing 
> officer's supervisor instructed the officer to give Brooks both tickets 
> and allow her to leave, even though the law would have permitted custodial 
> arrest.
> 5. The district court mistakenly found that the keys remained with Officer 
> Ornelas. Brooks herself says otherwise.
> 6. The district court suggests the Taser stun may have made her unable to 
> leave, but that is not consistent with Brooks's declaration, which links 
> her inability to move with her arm being held behind her back rather than 
> any muscle lock-up.
> 7. After Pearson v. Callahan, 129 S. Ct. 808, 818 (2009), we have 
> discretion to decide which step to address first.
> 8. The district court found probable cause based on statutory authority to 
> arrest for the refusal to sign a Citation to Appear, see Wash. Rev. Code 
> § 46.64.015, but then referenced Brooks's "undisputed refusal to sign the 
> Notice." Recognizing Brooks's contentions that she did not refuse to sign 
> the Citation to Appear, our analysis is different.
> 9. In 2006, the Washington legislature amended this statute to omit the 
> authorization to effect a custodial arrest for failure to sign the 
> Citation to Appear. See Wash. Rev. Code § 46.64.015. However, the earlier 
> version was applicable to the events of this case.
> 10. SPD's policies, found constitutional by the district court, state that 
> officers must only use "the minimal amount of force necessary to overcome 
> physical aggression or resistance to compliance with a lawful process." 
> The Use of Force Training Guideline provides context for that general 
> statement, presenting a continuum describing the suspect's level of 
> resistance and the corresponding reasonable force which may be used to 
> react to that resistance.
> 11. Although the Mattos panel appears to accept that the Taser was 
> deployed in drive-stun mode, see 590 F.3d at 1087 ("[D]efendant's expert 
> conceded that a Taser in the drive stun mode induces subject control 
> through pain compliance . . ." (internal quotation marks omitted)), 
> Mattos's description of a generalized loss of muscle control is more 
> indicative of a Taser in dart mode. She also claims to have "removed the 
> Taser's prongs herself," id., another characteristic of dart mode.
> 12. The holding in Bryan applied to the X26 Taser model and "all 
> controlled electric devices that cause similar physiological effects." See 
> Bryan, 590 F.3d at 772 n.2. Although this would clearly implicate the use 
> of a Taser in dart mode—which has similar physiological effects as the 
> X26—the localized, non-incapacitating effect of the drive-stun mode has 
> markedly different physiological effects.
> 13. Other circuit and district court decisions have also found the Taser 
> dart application to be an intermediate amount of force. See, e.g., Draper 
> v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004); Sanders v. City of 
> Fresno, 551 F. Supp. 2d 1149, 1168 (E.D. Cal. 2008) (citing cases). But 
> see Parker v. Gerrish, 547 F.3d 1, 10 (1st Cir. 2008) (finding a jury 
> could have found a Taser dart application unreasonable in light of 
> testimony about its "strong incapacitating effect" and the fact that the 
> police department considered it just below deadly force on the force 
> continuum).
> 14. The use of a Taser in drive-stun mode is considered a pain compliance 
> technique both by the SPD's Use of Force Training Guideline and our 
> jurisprudence. See San Jose Charter of Hells Angels Motorcycle Club v. 
> City of San Jose, 402 F.3d 962, 969 n.8 (9th Cir. 2005).
> 15. Three recent, out-of-circuit cases involved the use of a Taser in 
> drive-stun mode, but none specifically address the quantum of force 
> represented by that usage. See Brown v. City of Golden Valley, 574 F.3d 
> 491 (8th Cir. 2009); Orem v. Rephann, 523 F.3d 442 (4th Cir. 2008); 
> Davenport v. Causey, 521 F.3d 544 (6th Cir. 2008). We do not hold that the 
> use of a Taser in drive-stun mode can never amount to excessive force, but 
> solely that such use was not excessive based upon Brooks's conduct. Cf. 
> Brown, 574 F.3d at 498 (concluding that a material issue of fact existed 
> as to excessive force where officer applied Taser to frightened motor 
> vehicle passenger speaking to a 911 operator on her cell phone).
> 16. Obstruction of an officer is a gross misdemeanor, Wash. Rev. Code § 
> 9A.76.020, while refusing to sign either the Notice or Citation to Appear 
> is a misdemeanor, Wash. Rev. Code §§ 46.61.021(1) (2004); id. § 
> 46.61.022 (2009).
> 17. The district court concluded the Officers did not follow SPD policy. 
> The court did not elaborate, but may have been referring to a violation of 
> the general statement that officers "shall only use the minimal amount of 
> force necessary to overcome . . . resistance to compliance." Nonetheless, 
> that statement should be read in context with the Use of Force Training 
> Guideline, which spells out what force would be appropriate in response to 
> certain levels of non-compliance. The Officers' Taser use was consistent 
> with that Guideline. The district court found the SPD's use-of-force 
> policy constitutional.
> 18. In light of our holding, we need not reach the second step of 
> Saucier's qualified immunity inquiry. However, were we to conclude that 
> the force used was excessive, Brooks has not shown that the use of a Taser 
> in drive-stun mode in overcoming her resistance to arrest violated a 
> clearly established constitutional right. The shortage of cases regarding 
> this sort of Taser usage, the Officers' adherence to the SPD's Use of 
> Force Training Guidelines, and the likely factual misunderstanding between 
> the parties as to what document Brooks had refused to sign all suggest 
> that a reasonable officer would not have known he was violating the law. 
> See Mattos, 590 F.3d at 1089-90 (noting the lack of relevant case law 
> involving Tasers at the time of the incident, and concluding that "the 
> officers' conduct was not so patently violative" of plaintiff's 
> constitutional rights that a reasonable officer would know the action was 
> unconstitutional) (citations omitted); see also Saucier, 533 U.S. at 
> 205-06 (holding that officers should not be held to have violated the 
> Constitution if they had a reasonable, but mistaken, belief as to whether 
> the force used was legal in those circumstances), overruled on other 
> grounds by Pearson v. Callahan, 129 S. Ct. 808 (2009).
> 1. In 2006, the Washington legislature amended the relevant statutes to 
> remove the requirement that the recipient of a notice of infraction sign 
> the notice. See 2006 Wash. Legis. Serv. Ch. 270 (H.B. 1650).
> 2. The ticket reports that she was driving 32 miles per hour, while the 
> posted speed limit was 20 miles per hour.
> 3. Several years earlier, Brooks had been cited for disregarding a stop 
> sign displayed by a school bus. Believing she was not guilty, Brooks 
> refused to sign the notice of infraction. She was then issued a criminal 
> citation for refusing to sign the notice; she also refused to sign the 
> criminal citation. The arresting officer called her supervisor, who 
> instructed the officer simply to give Brooks both tickets and allow her to 
> leave.
> 4. I refer to all three officers collectively as "the Officers."
> 5. Brooks was charged with, but not convicted of, resisting arrest. The 
> Officers did not have probable cause to arrest Brooks for that offense 
> either: under Washington law, the crime of resisting arrest requires that 
> the underlying arrest be lawful. See Wash. Rev. Code § 9A.76.040. If the 
> Officers had no authority to take Brooks into custodial arrest to begin 
> with, then they had no probable cause to arrest her for resisting arrest.
> 6. Although the majority does not reach the second step of the qualified 
> immunity inquiry, it notes that this court held in Mattos that "it would 
> not have been clear to any reasonable officer on August 23, 2006, that use 
> of a Taser in the situation they confronted was constitutionally 
> impermissible." 590 F.3d at 1089. Again, however, the Mattos court focused 
> on the domestic violence context in distinguishing Bryan and reaching its 
> conclusion: "The officers used the Taser only once in a domestic violence 
> situation that could have quickly become much more dangerous to everyone 
> involved." Id. at 1090. Here, the Officers used the Taser multiple times 
> in a situation utterly devoid of the indicators of dangerousness present 
> in Mattos.
>
>
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