Ramsey v. City of Lake Havasu City

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 10, 2025
• Docket: 23-3244
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JAN 10 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 23-3244 TRAVIS RAMSEY; SUSAN RAMSEY, Guardian on behalf of Ward,

Plaintiffs - Appellees, DC No. 3:20-cv-08189-DLR-ESW v. MEMORANDUM* CITY OF LAKE HAVASU CITY, a municipal corporation; LOUIS HUGH PLUNKETT III, Officer, in his official and individual capacities,

Defendants - Appellants.

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

John Zachary Boyle, Magistrate Judge, Presiding

Argued and Submitted November 7, 2024 Phoenix, Arizona

Before: HAWKINS, TASHIMA, and OWENS, Circuit Judges.

Defendant City of Lake Havasu Officer Hugh Plunkett, III, appeals from the

district court’s decision denying him qualified immunity at summary judgment.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Travis Ramsey, an autistic person, and his legal guardian, Susan Ramsey, brought

this action under 42 U.S.C. § 1983, the Americans with Disabilities Act, the

Rehabilitation Act, and state law against the City of Lake Havasu and Plunkett.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Construing the evidence in the light most favorable to Ramsey, we conclude

that the district court properly denied Plunkett’s motion for summary judgment

based on qualified immunity. See Sanderlin v. Dwyer, 116 F.4th 905, 910 (9th Cir.

2024) (“In reviewing the denial of summary judgment on qualified immunity

grounds, we ‘decide de novo whether the facts, “considered in the light most

favorable to the plaintiff,” show that qualified immunity is warranted.’” (quoting

Hopson v. Alexander, 71 F.4th 692, 697 (9th Cir. 2023))). The district court

properly concluded that (1) Ramsey raised a triable dispute as to whether Plunkett

violated his Fourth Amendment rights; and (2) the case law at the time of the event

clearly established that the use of a taser in dart mode under the circumstances

presented here constituted excessive force. See Peck v. Montoya, 51 F.4th 877,

887 (9th Cir. 2022) (explaining that in determining whether defendants are entitled

to qualified immunity, “we engage in a two-step inquiry,” asking first, “whether

the facts, viewed in the light most favorable to the plaintiff, demonstrate that the

[officers] violated a constitutional right,” and second, “whether that right was

2 ‘clearly established’ at the time of the alleged constitutional violation” (quoting

Tolan v. Cotton, 572 U.S. 650, 656 (2014) (per curiam))).

1. The district court properly concluded that Ramsey raised a triable

issue as to whether Plunkett’s use of a taser in dart mode violated his Fourth

Amendment rights against excessive force. First, the use of the taser in dart mode

“constitute[d] an intermediate, significant level of force that must be justified by

the governmental interest involved.” Bryan v. MacPherson, 630 F.3d 805, 826

(9th Cir. 2010); see also Thompson v. Rahr, 885 F.3d 582, 586 (9th Cir. 2018)

(stating that “[w]e approach an excessive force claim in three stages,” and that the

first step is to “assess the severity of the intrusion on the individual’s Fourth

Amendment rights by evaluating the type and amount of force inflicted” (quoting

Espinosa v. City & County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010)));

Newmaker v. City of Fortuna, 842 F.3d 1108, 1116 (9th Cir. 2016) (explaining that

“[e]xcessive force claims are analyzed under a Fourth Amendment reasonableness

inquiry,” and that, “[i]n conducting this analysis, a court must balance the severity

of the intrusion on the individual’s Fourth Amendment rights against the

government’s need to use force”); Mattos v. Agarano, 661 F.3d 433, 449 (9th Cir.

2011) (en banc) (holding that where an officer used a taser in dart mode, it

constituted a “significant level of force”); Bryan, 630 F.3d at 825–26 (holding that

3 the use of a taser deployed in dart mode was “an intermediate, significant level of

force,” citing the “physiological effects, the high levels of pain, and foreseeable

risk of physical injury”).

The district court also properly concluded that the relevant factors in

considering the governmental interest at stake weigh in favor of Ramsey. See Scott

v. Smith, 109 F.4th 1215, 1224 (9th Cir. 2024) (“We next evaluate the

government’s interests by considering the severity of the crime at issue, whether

the suspect poses an immediate threat to the safety of the officers or others, and

whether a suspect is actively resisting arrest or attempting to escape.”). First, the

severity of the crime or offense weighs against Plunkett’s use of significant force.

See Bryan, 630 F.3d at 829 (finding “no substantial government interest in using

significant force to effect [an] arrest for . . . misdemeanor violations”); Gravelet-

Blondin v. Shelton, 728 F.3d 1086, 1091 (9th Cir. 2013) (explaining that “failing to

immediately comply with an officer order” was “far from severe” for purposes of

this factor); Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001) (explaining

that the severity of the offense did not support the use of significant force where

the plaintiff had not initially committed any crime and, after the encounter, “was

charged with nothing more than obstructing the police in the performance of their

duties”).

4 Second, the record does not indicate that Ramsey posed an immediate threat

to Plunkett or others. The video evidence does not show an emergency situation or

immediate threat. Rather, it indicates that, although Ramsey resisted being

restrained, he did not make violent moves toward the officers, and at the time that

Plunkett fired the taser, two officers held Ramsey’s arms, another officer held his

neck, and Ramsey was almost sitting on the floor. Moreover, there is no indication

that Ramsey was armed; to the contrary, as the district court noted, he would have

gone through a security screening when he entered the courtroom. See Singh v.

City of Phoenix, __ F.4th __, No. 23-15356, 2024 WL 5218388, at *4–5 (9th Cir.

Dec. 26, 2024) (explaining that, similar to Glenn v. Washington County, 673 F.3d

864 (9th Cir. 2011), a case sufficient to put the officer on notice, although the

plaintiff failed to comply with the officers’ commands to drop a knife, “a number

of other circumstances weigh against deeming him ‘an immediate threat to the

safety of the officers or others,’” including that he “was ‘not in possession of any

guns,’ that he was ‘not in a physical altercation with anyone,’” and he “did not

attack the officers . . . [nor] did he even threaten to attack any of them” (quoting

Glenn, 673 F.3d at 873)); Mattos, 661 F.3d at 445–46 (concluding that the suspect

“did not pose an immediate threat to the safety of the officers or others” where

“[s]he actively resisted arrest insofar as she refused to get out of her car when

5 instructed to do so and stiffened her body and clutched her steering wheel to

frustrate the officers’ efforts to remove her from her car”); Smith v. City of Hemet,

394 F.3d 689, 702 (9th Cir. 2005) (en banc) (concluding that a rational jury could

find that a suspect did not pose a danger to the officers or others because, although

he was uncooperative and shouted expletives at the officers, he made no threats,

and the officers had no reason to think he was armed), disapproved of on other

grounds by Lemos v. County of Sonoma, 40 F.4th 1002 (9th Cir. 2022) (en banc).

Third, although Ramsey was resisting arrest, he was convicted of resisting

arrest by “engaging in passive resistance,” Ariz. Rev. Stat. § 13-2508(A)(3), and,

consistent with his conviction, a reasonable jury could interpret the video evidence

to find that he was not “actively resisting arrest.” Mattos, 661 F.3d at 449; see also

Rice v. Morehouse, 989 F.3d 1112, 1123 (9th Cir. 2021) (“We have long

distinguished between passive and active resistance[.]”); Gravelet-Blondin, 728

F.3d at 1091–92 (explaining that resistance that is not “purely passive” and

includes ignoring officers’ commands and briefly engaging in physical resistance,

but is not “particularly bellicose,” offers little support for the use of significant

force). Two additional factors — Plunkett’s failure to give a warning that force

was imminent, as well as his apparent failure to consider alternative means of

effecting an arrest, despite knowing that Ramsey was autistic, had requested

6 accommodations in the courtroom, and had not committed any serious crime —

weigh against finding the use of force reasonable. See Bryan, 630 F.3d at 829, 831

(explaining that the failure to give a warning “is a factor to consider” and that

police not only “are ‘required to consider [w]hat other tactics if any were available’

to effect the arrest,” but they must also make “greater effort to take control of the

situation through less intrusive means” when they know that an individual is

mentally ill or emotionally disturbed) (quoting Headwaters Forest Def. v. County

of Humboldt, 240 F.3d 1185, 1204 (9th Cir. 2000)). Balancing the competing

interests, a reasonable jury could find that the government had a minimal interest in

the use of force against Ramsey, which is insufficient to justify the use of

significant force. See Bryan, 630 F.3d at 831 (concluding that the level of force

was excessive where “the government had, at best, a minimal interest in the use of

force”). Moreover, where, as here, “the reasonableness of the force used by [the

officer] . . . turns on ‘how the jury interprets the video footage, and whether the

jury credits [the officer’s] testimony’” and his version of the facts, there is a triable

dispute as to whether the officer’s use of force was excessive. Sanderlin, 116 F.4th

at 915.

We therefore affirm the district court’s conclusion that a triable issue of fact

existed as to whether Plunkett violated Ramsey’s Fourth Amendment rights.

7 2. The district court properly concluded that the right to be free from the

application of significant force under these circumstances was clearly established

at the relevant time, on August 5, 2019. At the time of the conduct at issue in this

case, there was a clearly established right to be free from the application of

significant force for engaging in passive or minimal resistance or for failing to

comply immediately with an officer’s orders. See Gravelet-Blondin, 728 F.3d at

1093 (“The right to be free from the application of non-trivial force for engaging in

mere passive resistance was clearly established prior to 2008.”); Nelson v. City of

Davis, 685 F.3d 867, 881 (9th Cir. 2012) (explaining that cases dating back to

2011 established that “a failure to fully or immediately comply with an officer’s

orders neither rises to the level of active resistance nor justifies the application of a

non-trivial amount of force”); Deorle, 272 F.3d at 1285 (stating in 2001 that

“[e]very police officer should know that it is objectively unreasonable to shoot —

even with lead shot wrapped in a cloth case — an unarmed man who: has

committed no serious offense, is mentally or emotionally disturbed, has been given

no warning of the imminent use of such a significant degree of force, poses no risk

of flight, and presents no objectively reasonable threat to the safety of the officer or

other individuals”). It also was clearly established that the use of a taser in dart

mode under these circumstances constituted significant force. See Rice, 989 F.3d

8 at 1125–26 (explaining that, in Gravelet-Blondin, a 2013 case, “we held that an

officer’s tasing of a bystander to an arrest who did not retreat despite the officer’s

orders violated clearly established law”); Bryan, 630 F.3d at 826-31 (holding in

2010 that an officer’s use of a taser in dart mode was excessive where, similar to

Ramsey, the plaintiff did not pose an immediate threat to the officer or others, was

unarmed, had committed only misdemeanor offenses and traffic violations, and

was mentally disturbed; his resistance was relatively passive and not “particularly

bellicose” and officers failed to provide a warning or to consider alternatives).

For the foregoing reasons, we affirm the district court’s denial of Plunkett’s

motion for summary judgment based on qualified immunity.

AFFIRMED.