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Jesse Ray Lucas v. City of Visalia

May 7, 2013

JESSE RAY LUCAS,
PLAINTIFFS ,
v.
CITY OF VISALIA, ET AL.,
DEFENDANTS.



ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. No. 97)

This is an excessive force case that arises out of a confrontation between Plaintiff Jesse Lucas ("Lucas") and members of the City of Visalia Police Department. Lucas brings claims for Fourth Amendment violations under 42 U.S.C. § 1983, state law statutory claims under California Civil Code § 52.1 and § 52.7, and state common law claims for assault and battery, intentional and negligent infliction of emotional distress, and negligence. Defendants City of Visalia ("City") and Visalia police officers Carmen Esparza ("Esparza") and Sean O'Rafferty ("O'Rafferty") now move for summary judgment on the claims against them. For the reasons that follow, the summary judgment motion will be granted in part and denied in part.

FACTUAL BACKGROUND *fn1

On May 1, 2008, Elise Monpere ("Monpere"), Lucas's then girlfriend and now wife, called 911 for medical assistance for Lucas. See DUMF 2; PUMF 1. Lucas, who had a history of seizures since childhood, appeared to be suffering from a seizure. See PUMF's 1, 2. From his past history, Lucas knew that he was not having a life threatening situation and did not need medical treatment. See PUMF 3.

Firefighters and ambulance personnel arrived at Lucas's apartment, and Monpere let the firefighters and paramedics inside where they conferred with Monpere and Lucas. See DUMF 4; PUMF 5; Monpere Depo. 52:21-53:23, 69:9-19. Lucas had drunk 4 to 7 beers earlier that evening and was intoxicated when the firefighters and paramedics arrived. See DUMF's 3, 5. Lucas repeatedly refused medical treatment and told the firefighters and paramedics that he did not want them there and that he did not call for their assistance. See Krauss Depo. 33:12-36:12. Although Lucas was not angry when the firefighters and paramedics arrived, the longer those personnel stayed, the angrier Lucas became. See Lucas Depo. 80:5-81:12. The firefighters and paramedics continued to stay in the residence because a medical call had been made and the personnel believed that they needed to assess whether Lucas was conscious and capable of making his own decisions. See Krauss Depo. 35:1-17. Lucas was using profanity and was adamant that the personnel needed to leave and that he did not want any help. See id. at 34:22-36:3. The emergency personnel requested police assistance at Lucas's residence. See PUMF 7.

Esparza and O'Rafferty were dispatched to the scene in response to the request for officer assistance from the firefighters and paramedics. DUMF 7. That is, the officers were dispatched to assist with a "medical call." O'Rafferty Dec. 2:13. The officers received information from dispatch that a 24 year old male was having seizures. See PUMF 8. The officers were also told by dispatch that Lucas was combative with the firefighters and paramedics. DUMF 8.

O'Rafferty arrived at the scene first. PUMF 9. As he approached the home, O'Rafferty could see medical personnel outside, huddled around the doorstep outside the home, and could see Lucas sitting on a staircase just inside the front door talking to medical personnel. PUMF 10. A majority of the emergency personnel were outside the residence, and O'Rafferty could not remember whether any were still inside the house. See PUMF 11. The paramedics told O'Rafferty that Lucas had not injured anyone on the scene and that Lucas refused medical treatment. See PUMF 12. O'Rafferty observed Lucas in angry conversation with other paramedics, and heard Lucas say that he did not want any help. See PUMF's 13, 14. Paramedics told O'Rafferty that Lucas had hit a wall in the home, but O'Rafferty does not recall seeing that incident. *fn2 See PUMF 15. O'Rafferty did not discuss any sort of plan with emergency personnel to address the situation, and he could not recall whether the emergency personnel explained that they were trying to assess whether Lucas needed care See PUMF 17; O'Rafferty Depo. 57:23-58:1. Also, when O'Rafferty approached the doorway, he observed that Monpere was at the rear of the house away from where Lucas was sitting. See PUMF 18. O'Rafferty did not have an opportunity to speak to Monpere. See id.

O'Rafferty entered Lucas's home. See O'Rafferty Depo. 77:5-12; see also PUMF 20. O'Rafferty explained to Lucas that medical personnel were there to try and help and there was concern that Lucas was mentally altered and intoxicated. See O'Rafferty Depo. 62:9-22. O'Rafferty observed signs of intoxication, including bloodshot watery eyes and thick speech. See id. at 62:23-25. Lucas did not appear to be in grave physical danger to O'Rafferty. See id. at 72:1-4. O'Rafferty understood clearly that Lucas did not want to be treated and that Lucas wanted everyone to leave. PUMF 19. Lucas became more agitated and continued to insist that all personnel leave. See PUMF 21. Lucas had calmed down a bit. See PUMF 23.

Esparza then arrived, and Lucas became more agitated. See PUMF 24. Esparza could hear Lucas object to O'Rafferty being in the home, and could see both that Lucas was not in medical danger, and that Monpere was not physically harmed. See PUMF 25. Esparza did not see any emergency personnel inside the home, and it was her impression that all emergency personnel were outside. See PUMF 26; Esparza Depo. at 57:7-10. Esparza entered Lucas's home. See PUMF 27.

Lucas clearly told both Esparza and O'Rafferty that he refused medical treatment and requested that all personnel leave his home. See PUMF 28. Lucas cursed at the officers and emergency personnel. See DUMF 9. Lucas then turned and began to walk up the stairs and said that he was going to bed and that they all needed to leave. See PUMF 29. Esparza clearly heard Lucas say this. See id. Lucas continued to curse as he went up the stairs. See DUMF 11.

Esparza and O'Rafferty were concerned for the safety of everyone in the residence, including Lucas and Monpere, and so followed Lucas up the stairs. See DUMF 12; PUMF 31. Esparza was the first officer behind Lucas as they went up the stairs, and O'Rafferty followed behind Esparza. See DUMF's 14, 15. Lucas is 6' 1" and weighs 210 lbs., Esparza is 5' 1" and 115 lbs., and O'Rafferty is 6' 6" and 230 lbs. See DUMF 1; Esparza Dec. at 1:28; O'Rafferty Depo. 9:18-20. Lucas said nothing about getting a weapon and made no threats to the officers, and there had been no mention of weapons by Lucas or anyone on site. See PUMF 30; O'Rafferty Depo. 119:5-22. Lucas did not make any verbal threats or physically assault anyone in the residence. See PUMF 34. At no point during the incident did Lucas yell at Monpere. See Monpere Depo. 56:5-8. Further, Esparza testified that she believed that all emergency personnel were outside the residence, and she did not know where Monpere was. See PUMF 62.

When Lucas reached the top of the stairs, he was turning around. See Lucas Depo. 123:18-124:7. Esparza believed that Lucas was adopting an aggressive stance when he turned around. DUMF 17. Esparza has declared that, at the top of the stairs, Lucas turned around, yelled at the officers to leave, made eye contact with O'Rafferty, clenched his fist, looked at O'Rafferty again, and then lunged forward. See Esparza Dec. at 3:17-23. Lucas testified that he was not aggressive towards the officers, and that he was tased as he was facing away from the officers and turning around. See Lucas Depo. 79:18-80:7, 234:3-10. Esparza did not give Lucas a warning before deploying the taser. See PUMF 36; Doc. No. 97-1 at 11:19-21. The taser darts struck Lucas in the stomach area (in the upper-stomach right of center area and the waist right of center area). See DUMF 18; Esparza Dec. 3:25-27. The report from Esparza's taser unit indicates that Esparza administered a cycle of 10 seconds, which means that Esparza held the trigger down for 10 seconds. *fn3 See PUMF's 37, 39. Lucas fell to the ground. See DUMF 19. Esparza told Lucas to roll onto his stomach and put his hands behind his back. DUMF 20. Lucas's body was somewhat tense and his upper body was flexed. See O'Rafferty Depo. 89:1-12. In order to gain compliance, Esparza cycled the taser a second time. See PUMF 41; DUMF 22. O'Rafferty has no recollection of Esparza giving Lucas a warning that she would use the taser a second time, but Esparza testified that a warning was given. See Esparza Depo. 81:8-19; O'Rafferty Depo. 90:7-24. Lucas complied with the directions to place his hands behind his back after Esparza cycled the taser a second time. See DUMF 23.

Lucas was then placed on a gurney and began to struggle again. See DUMF 24. Lucas was then strapped to the gurney, and taken to Kaweah Delta Hospital for treatment. See DUMF's 25, 26. After treatment, Lucas was taken to jail. See PUMF 45.

Esparza charged Lucas with violations of Penal Code sections 148 (hindering a police officer/resisting arrest), 415(2) (disturbing the peace), 647(f) (public intoxication), and Health and Safety Code § 11550 (being under the influence of a controlled substance). PUMF 47. Esparza based the § 11550 charged on Lucas's actions in failing to cooperate, but that charge was dropped after the toxicology report returned negative findings. See PUMF's 48, 49.

The City's taser use policy requires initial certification before use, recertification if the officer has not carried a taser in the previous six months, and further training if deemed appropriate by training manager. DUMF 35. Esparza was certified for taser use on March 24, 2007, O'Rafferty was certified for taser use on April 19, 2007, and both attended recertification training on October 19, 2007. See DUMF's 31, 32. The City's taser training includes training officers to watch for loss of consciousness and to consider having emergency medical services attend to any person who has been tased. DUMF 34. The City has a written policy that states that verbal warnings of an officer's intention to use a taser shall precede actual use of the taser, "unless it would otherwise endanger officer safety or is impractical under the circumstances . . . ." See DUMF 28. The City's taser training includes distribution of any product warnings published by the manufacturer. DUMF 33. One such warning was issued on April 12, 2006, and April 28, 2008, and read: "Seizure Risks. Repetitive stimuli such as flashing lights or electrical stimuli can induce seizures in some individuals. This risk is heightened if electrical stimuli or current passes through the head region." DUMF 29. This warning was distributed and discussed at the certification training for both Esparza and O'Rafferty. See DUMF 30.

The City requires that every use of a taser be followed by a Taser Use Report, even if the officer only uses the laser pointing feature. See DUMF 36. The City's practice at the time of the incident was to have each Taser Usage Form reviewed by the Lieutenant in charge of Police Standards for a determination as to whether the use of the taser warranted clearance, discipline, correction, or review of the policy. DUMF 39. Esparza's use of her taser in this case and O'Rafferty's presence were reported on a Taser Use Report. DUMF 37. Esparza's Taser Use Report was reviewed by the officer in charge of Police Standards and determined to be within departmental policy. DUMF 38. No investigation was conducted with respect to Esparza and O'Rafferty's conduct. See Lynn Depo. 90:6-25.

The City's police officers receive training on issues regarding the Fourth Amendment as part of the field training program and would also receive periodic updates to coincide with recent court decisions. See Lynn Depo. 40:10-43:19. The City's Person Most Knowledgeable testified that there does not appear to be any training materials regarding the use of a taser on someone involved in a medical aid call, on someone who is refusing medical treatment, or on someone who might have had a seizure or was complaining of seizures. See Epp Depo. 114:21-115:14. There does not appear to be formal training by the City on how to recognize certain medical conditions, such as diabetic shock, heart attack, or seizure. See Lynn Depo. 85:20-86:11.

SUMMARY JUDGMENT FRAMEWORK

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir. 2009). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Freecycle Sunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See Soremekun, 509 F.3d at 984; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire, 210 F.3d at 1102-03. If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. Pro. 56(e)).

The opposing party's evidence is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010); Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1058 (9th Cir. 2009); Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. Nissan Fire, 210 F.3d at 1103.

DEFENDANTS' MOTION

I. Fourth Amendment Claims Against Officers

Defendants' Argument

Defendants argue that the officers' conduct was reasonable. The facts show that Lucas wanted to be left alone, but they also show that he was angry at the officers and at the emergency personnel. Lucas was so angry that he punched a hole in the wall and began retreating upstairs to rooms that could have contained anything. When Lucas reached the top of the stairs, Esparza was behind him and in a vulnerable position. Lucas then turned again to yell. Lucas was over six foot tall and weighed over 200 pounds, while Esparza was just over five foot tall and 115 pounds. Lucas had disobeyed Esparza's commands not to retreat, and she viewed Lucas as a threat to the safety of everyone in the house, including himself and Monpere. When Lucas turned, Esparza deployed her taser to subdue a large, irate, drunken individual who appeared to pose a risk to herself and those behind her. Although she did not give a warning before deploying the taser, she had no time to do so. After the initial taser deployment, Esparza used a second taser cycle because Lucas refused to comply with her commands that he show his hands. Lucas's unstable and violent behavior created a tenuous situation that created a safety risk to all present, including Monpere, and Esparza's use of force was reasonable.

Alternatively, Defendants argue that qualified immunity is appropriate. There are no Ninth Circuit cases that predate the events of this case and indicate a violation of a clearly established right. In 2011, however, the Ninth Circuit found that the law regarding taser use at the time of this case was not so clear that officers would know that tasing a pregnant woman who refused to sign a traffic ticket and who pushed a police officer away from her breasts was unconstitutional. If the law was unsettled with respect to the pregnant woman, it would be unsettled as to the large, drunk, and irate Lucas.

Plaintiff's Opposition

Lucas argues that the officers entry into his residence was unreasonable. The officers did not have consent to be in his home. Further, Lucas repeatedly and clearly told the officers to leave, but when he attempted to go upstairs to his bed, the officers unlawfully followed him. Neither consent nor any other theory justified the unlawful entry into the residence. Because the officers' entry into the residence was unlawful, so too was the subsequent tasing and arrest.

Lucas also argues that none of the relevant criteria support Esparza's use of force. The officers were called to the residence regarding a medical situation and there were no crimes at issue when Esparza deployed the taser. There is no evidence that objectively shows that Lucas posed an immediate threat to the safety of the officers or anyone, a position which is buttressed by the officers' failure to charge Lucas with assault. The officers also knew that Lucas had seizures and was impaired, but did not respect Lucas's personal space or slow down the situation. Esparza gave no warning before using her taser the first time, and did not give Lucas sufficient time to comply before she cycled the taser a second time. Instead of a taser, the officers could have used a "firm grip" on Lucas. In light of these considerations, use of the taser was improper.

With respect to qualified immunity, Lucas argues that there was no exigent circumstance that would justify entry into Lucas's residence, and the Supreme Court has made clear that the consent to enter by one occupant cannot trump the express objection of another occupant. Further, there was no probable cause to enter Lucas's home, and courts recognized that, in 2006, a reasonable officer would have known that multiple taser applications on a person who had just suffered a seizure constitutes excessive force.

Legal Standard

1. Excessive Force

All claims that law enforcement officers used excessive force, either deadly or non-deadly, in the course of an arrest, investigatory stop, or other seizure of a citizen are to be analyzed under the Fourth Amendment and its standard of objective reasonableness. See Scott v. Harris, 550 U.S. 372, 381-83 (2007); Graham v. Connor, 490 U.S. 386, 395 (1989). The pertinent question in excessive force cases is whether the use of force was "objectively reasonable in light of the facts and circumstances confronting [the officers], without regard to their underlying intent or motivation." Graham, 490 U.S. at 397; Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007). The objective inquiry into reasonableness is highly fact specific, see Scott, 550 U.S. at 383; Wilkinson v. Torres, 610 F.3d 546, 551 (9th Cir. 2010). "We first assess the quantum of force used to arrest [the plaintiff]" and then "measure the governmental interests at stake by evaluating a range of factors." Liberal v. Estrada, 632 F.3d 1064, 1079 (9th Cir. 2011). Factors that are considered in assessing the government interests at stake include, but are not limited to, "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396; Blankenhorn, 485 F.3d at 477. Further, where it is or should be apparent that an individual is emotionally or mentally unstable, that is a factor that must be considered in determining the reasonableness of the force employed. See Drummund v. City of Anaheim, 343 F.3d 1052, 1058 (9th Cir. 2003). In some cases, "the availability of alternative methods of capturing or subduing a suspect may be a factor to consider." Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005). However, police officers "are not required to use the least intrusive degree of force possible" as long as the force actually used was reasonable. Forrester v. City of San Diego, 25 F.3d 804, 807 (9th Cir. 1994); see Gregory v. County of Maui, 523 F.3d 1103, 1107 (9th Cir. 2008). That is, a reasonable use of force "encompasses a range of conduct, and the availability of a less-intrusive alternative will not render conduct unreasonable." Wilkinson, 610 F.3d at 551. It may also be appropriate to consider the parties "'relative culpability,' i.e. which party created the dangerous situation and which party is more innocent . . . ." Espinosa v. City & County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010); see Scott, 550 U.S. at 384. Reasonableness "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396; Wilkinson, 610 F.3d at 550. "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97; Wilkinson, 610 F.3d at 550. "Force is excessive when it is greater than is reasonable under the circumstances." Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002). Where the circumstances show that there is no need for force, any force used is constitutionally unreasonable. Fontana v. Haskin, 262 F.3d 871, 880 (9th Cir. 2001).

2. Qualified Immunity

Qualified immunity protects "government officials . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Phillips v. Hust, 477 F.3d 1070, 1079 (9th Cir. 2007); Brittain v. Hansen, 451 F.3d 982, 987 (9th Cir. 2006). The "concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made," and that it is "often difficult for an officer to determine how the relevant legal doctrine will apply to the factual situation that he faces." Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049 (9th Cir. 2002).

A court employs a tiered analysis for determining qualified immunity. See Saucier v. Katz, 533 U.S. 194, 200-02 (2001); Skoog v. County of Clackamas, 469 F.3d 1221, 1229 (9th Cir. 2006); Brittain, 451 F.3d at 987. However, lower courts need not strictly follow the tiered sequence in analyzing qualified immunity, but instead may dispose of the issue at step two without addressing step one. Pearson v. Callahan, 555 U.S. 223 (2009); Moss v. United States Secret Service, 572 F.3d 962, 968 n.5 (9th Cir. 2009). Under the first step, the court determines whether, "taken in the light most favorable to the party asserting the injury, do the facts show the officer's conduct violated a constitutional right?" Saucier, 533 U.S. at 201; Phillips, 477 F.3d at 1079; Skoog, 469 F.3d at 1229. If the answer is "no," then the inquiry ends and the plaintiff cannot prevail; if the answer is "yes," the court continues the analysis. See Saucier, 533 U.S. at 201; Blankenhorn v. City of Orange, 485 F.3d 463, 471 (9th Cir. 2007); Johnson v. County of L.A., 340 F.3d 787, 793-94 (9th Cir. 2003).

Under the second step, the court determines "whether the right was clearly established," and applies an "objective but fact-specific inquiry." Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007); see Saucier, 533 U.S. at 202; Brittain, 451 F.3d at 988. The critical question is whether "the contours of the right were sufficiently clear that a reasonable official would understand that what he is doing violates the right." Saucier, 533 U.S. at 202; Phillips, 477 F.3d at 1079. Whether a right is clearly established must be "undertaken in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201; Skoog, 469 F.3d at 1229-30. In making this determination, the court considers the state of the law at the time of the alleged violation, but it is unnecessary for the precise conduct in question to have been previously held unlawful. See Inouye, 504 F.3d at 712; Devereaux v. Perez, 218 F.3d 1045, 1052 (9th Cir. 2000). Further, the court considers the "information possessed" by the officer at the time of his conduct. See Hunter v. Bryant, 502 U.S. 224, 227 (1991); Anderson v. Creighton, 483 U.S. 635, 641 (1987); Edgerly v. City & County of San Francisco, 495 F.3d 645, 654 (9th Cir. 2007). If the officer could have reasonably, but mistakenly, believed that his conduct did not violate a clearly established constitutional right, then the officer will receive qualified immunity. See Saucier, 533 U.S. at 205-06; Skoog, 469 F.3d at 1229; Johnson, 340 F.3d at 794; Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001). As a wholly objective inquiry, see Brittain, 451 F.3d at 988, the "'subjective beliefs' of the actual officer are . . .irrelevant." Inouye, 504 F.3d at 712; see Anderson, 483 U.S. at 641. Thus, qualified immunity applies if "a reasonable officer could have believed [the action] to be lawful, in light of clearly established law and the information the . . . officer[] possessed." Lawrence v. United States, 340 F.3d 952, 956-957 (9th Cir. 2003); see also Hunter, 502 U.S. at 227.

Discussion

1. Fourth Amendment -- Taser ...


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