                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 10 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GULSTAN E. SILVA, Jr., as Personal               No. 17-16406
Representative of the Estate of Sheldon
Paul Haleck; JESSICA Y. HALECK,                  D.C. No. 1:15-cv-00436-HG-KJM
Individually, and as Guardian Ad Litem of
Jeremiah M. V. Haleck; WILLIAM E.
HALECK; VERDELL B. HALECK,                       MEMORANDUM*

              Plaintiffs-Appellees,

 v.

CHRISTOPHER CHUNG; SAMANTHA
CRITCHLOW; STEPHEN KARDASH,

              Defendants-Appellants.


                    Appeal from the United States District Court
                             for the District of Hawaii
                    Helen W. Gillmor, District Judge, Presiding

                        Argued and Submitted June 11, 2018
                                Honolulu, Hawaii

Before: TASHIMA, W. FLETCHER, and HURWITZ, Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Honolulu police officers Christopher Chung, Samantha Critchlow, and

Stephen Kardash (collectively “Appellants”), appeal the district court’s order

denying their motion for summary judgment based on qualified immunity in this

42 U.S.C. § 1983 action arising out of the death of Sheldon Paul Haleck

(“Haleck”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      We may review a denial of summary judgment based on qualified immunity

where a defendant argues that the evidence, construed in the light most favorable to

the nonmoving party, shows no violation of the Fourth Amendment or clearly

established law. See A.K.H. v. City of Tustin, 837 F.3d 1005, 1010 (9th Cir. 2016).

We review such denials of summary judgment de novo. Blanford v. Sacramento

Cty., 406 F.3d 1110, 1114 (9th Cir. 2005). We view the material facts in the light

most favorable to the nonmoving party, K.R.L. v. Estate of Moore, 512 F.3d 1184,

1188-1189 (9th Cir. 2008) (citing Jeffers v. Gomez, 267 F.3d 895, 905 (9th Cir.

2001), and draw all reasonable factual inferences in their favor, John v. City of El

Monte, 515 F.3d 936, 941 (9th Cir. 2008).

      Appellees presented evidence that, on the evening of March 16, 2015,

Officer Chung responded to a call from dispatch regarding a man walking down

the middle of South King Street in Honolulu. When he arrived at the scene,

Officer Chung observed Haleck walking in the middle of the street. Officer


                                          2
Critchlow arrived about one minute later. Both Officers Chung and Critchlow

instructed Haleck to move to the sidewalk. Haleck did not comply with their

instructions and instead apologized and walked away from the officers. After

Haleck failed to move to the sidewalk, Officers Chung and Critchlow pepper

sprayed Haleck multiple times without warnings. Officer Critchlow pepper

sprayed Haleck four to five times, and Officer Chung pepper sprayed Haleck two

to three times.

      Haleck continued to move away from the officers, dodging from side to side

in the middle of the street. Officer Kardash then arrived at the scene, boxed Haleck

in, and ordered Haleck to move to the sidewalk. Haleck did not comply, and

Officer Kardash pepper sprayed Haleck two to three times. Officer Chung then

deployed his Taser in dart-mode. Officer Chung first shot the Taser at Haleck’s

chest. Haleck remained standing and turned away from Chung. Officer Chung

then deployed his Taser in dart-mode a second time into Haleck’s back. Without

warning, Officer Chung pulled the Taser trigger again, releasing a third electric

current. Following the third pull of the Taser trigger, Haleck fell face-forward to

the ground in the direction of Officer Kardash. Haleck was then arrested for

disorderly conduct. Additional officers arrived at the scene, cuffed Haleck’s

hands, shackled his legs, and carried Haleck to the side of the road where he lost


                                          3
consciousness and stopped breathing. Haleck was resuscitated and taken to the

hospital where he was pronounced dead the next morning.

      To determine whether an officer is entitled to summary judgment based on

qualified immunity, we consider, viewing the facts in the light most favorable to

Appellees: (1) whether the officer used excessive force in violation of the Fourth

Amendment; and (2) if so, whether the officer violated clearly established law.

Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010) (en banc). We address

each question, in turn, for each method of force used against Haleck.



                                        1. Taser

      Deployment of a Taser in dart-mode constitutes an “intermediate, significant

level of force” that must be justified by “‘a strong government interest [that]

compels the employment of such force.’” Bryan, 630 F.3d at 826 (quoting

Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir.

2003), and Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir. 2001) (first

alteration added and internal quotation marks omitted). This is because “[t]he

physiological effects, the high levels of pain, and foreseeable risk of physical

injury lead us to conclude that the [Taser] and similar devices are a greater




                                           4
intrusion than other non-lethal methods of force we have confronted.” Bryan, 630

F.3d at 826.

      Whether the governmental interests permitted Officer Chung’s use of Taser

force is evaluated by examining three primary factors: (1) “the severity of the

crime at issue,” (2) “whether the suspect pose[d] an immediate threat to the safety

of the officers or others,” and (3) “whether [the suspect] [was] actively resisting

arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386,

396 (1989) (citing Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)). The “‘most

important’ factor under Graham is whether the suspect posed an ‘immediate threat

to the safety of officers or third parties.’” George v. Morris, 736 F.3d 829, 838

(9th Cir. 2013) (quoting Bryan, 630 F.3d at 826).

      Here, there was no serious crime at issue. Appellants were responding to a

dispatch call about a man walking in the middle of the road. Nor was Haleck an

immediate threat to himself or others. Haleck made neither physical nor verbal

threats. There also was no threat to traffic during the encounter. Appellees offered

evidence that traffic was stopped. Finally, Haleck was never told he was under

arrest, and he never actively attempted to evade arrest by flight.

      Officer Chung’s use of his Taser violated clearly established law. In Bryan

v. MacPherson, this court, sitting en banc, held that one deployment of the Taser


                                           5
X26 in dart-mode against a belligerent individual who was unarmed, non-

threatening, and apprehended for a minor traffic violation, was excessive. 630

F.3d 805. Here, Haleck was met with even greater Taser force, and was not

belligerent. In Brooks v. City of Seattle, one of the two underlying cases in Mattos

v. Agarano, 661 F.3d 433 (9th Cir. 2011) (en banc), this court, sitting en banc, held

that multiple Taser deployments on an individual who no longer poses even a

potential threat to the officers’ or others’ safety, much less an “immediate threat,”

was unconstitutional. Mattos, 661 F.3d at 444 (citing Deorle, 272 F.3d at 1280).

Here, Haleck was unarmed and never posed even a potential threat to Officer

Chung or Officer Critchlow, because Haleck, unlike Brooks, never had access to

even a potential weapon, such as a car.



                                 2. Pepper Spray

       Officers Chung, Critchlow, and Kardash used pepper spray numerous times

on Haleck. Appellants concede that a warning did not precede each deployment of

pepper spray. Officer Kardash testified he pepper sprayed Haleck two to three

times, Officer Critchlow testified he pepper sprayed Haleck four to five times, and

Officer Chung testified he pepper sprayed Haleck two to three times.




                                           6
      Pepper spray is regarded as an “intermediate force” that presents a

significant intrusion upon an individual’s liberty interests. Nelson v. City of Davis,

685 F.3d 867, 878 (9th Cir. 2012). Pepper spray “is designed to cause intense

pain,” and inflicts “a burning sensation that causes mucus to come out of the nose,

an involuntary closing of the eyes, a gagging reflex, and temporary paralysis of the

larynx,” as well as “disorientation, anxiety, and panic.” Young v. Cty. Of L.A., 655

F.3d 1156, 1162 (9th Cir. 2011) (quoting Headwaters Forest Def. v. Cty. of

Humboldt, 240 F.3d 1185, 1199-1200 (9th Cir. 2000), vacated and remanded on

other grounds, 534 U.S. 801 (2001)). Under our case law, a reasonable officer

would be on notice in 2015 “that police officers employ excessive force in

violation of the Fourth Amendment when they use pepper spray upon an individual

who is engaged in the commission of a non-violent misdemeanor and who is

disobeying a police officer’s order but otherwise poses no threat to the officer or

others.” Young, 655 F.3d at 1168. See also Nelson, 685 F.3d at 885 (stating that

the use of pepper spray was “an unreasonable application of force against

individuals who were suspected of only minor criminal activity, offered only

passive resistance, and posed little to no threat of harms to others”).

        Viewing the facts in the light most favorable to Appellees, considering the

number of times Haleck was pepper-sprayed, the three Graham factors, the


                                           7
availability of alternative means for executing arrest, and Haleck’s vulnerable

mental state, there is a factual issue for the jury whether Appellants’ use of force

violated both the Fourth Amendment and clearly established law. See Smith v. City

of Hemet, 394 F.3d 698, 704 n.7.


                           3. Community Caretaking Doctrine

      Officers’ “community caretaking” actions must meet the overarching

standard of “reasonableness.” See Miranda v. City of Cornelius, 429 F.3d 858, 864

(9th Cir. 2005) (citing Cooper v. California, 386 U.S. 58, 59 (1967)) (holding that

in considering whether a seizure is appropriate under the community caretaking

doctrine, “we must examine whether this seizure is reasonable based on all of the

facts presented”); see also Ames v. King Cty., Wash., 846 F.3d 340, 348 (9th Cir.

2017) (“we must determine … whether the actions she took in subduing Ames

were objectively reasonable”) (citing Scott v. Harris, 550 U.S. 372 (2007)).

Although Appellants were serving in a caretaking function, there was no

emergency to increase the “severity” of the circumstances.



             We affirm the district court’s denial of qualified immunity and

remand for further proceedings consistent with this disposition.



                                           8
AFFIRMED.




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