                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JAY RUSSELL SHAFER,                      No. 15-56548
                Plaintiff-Appellee,
                                            D.C. No.
                 v.                      2:11-cv-08110-
                                           FMO-FFM
COUNTY OF SANTA BARBARA; BILL
BROWN, individually and as Sheriff
of Santa Barbara County; SANTA             OPINION
BARBARA SHERIFF’S DEPARTMENT,
                        Defendants,

                and

FREDDY PADILLA, No. 2465,
individually and as a peace officer,
                Defendant-Appellant.


      Appeal from the United States District Court
         for the Central District of California
     Fernando M. Olguin, District Judge, Presiding

          Argued and Submitted April 6, 2017
                 Pasadena, California

                 Filed August 29, 2017
2                        SHAFER V. PADILLA

    Before: Milan D. Smith, Jr. and N. Randy Smith, Circuit
                Judges, and Gary Feinerman.*

                  Opinion by Judge N.R. Smith


                            SUMMARY**


                             Civil Rights

    The panel reversed a jury verdict and vacated damage
awards in favor of the plaintiff in an action brought under 42
U.S.C. § 1983 alleging that a police officer used excessive
force when he used a leg sweep maneuver to take down the
plaintiff after he refused to comply with the officer’s orders
to drop the water balloons he was carrying.

    The panel held that viewing all of the facts in the light
most favorable to the jury’s verdict, there was sufficient
evidence to support the jury’s finding that the force used by
the officer was excessive. The panel nevertheless held that
the officer was entitled to qualified immunity because, at the
time the incident occurred, the law was not clearly established
that an officer cannot progressively increase his use of force
from verbal commands, to an arm grab, and then a leg sweep
maneuver when a misdemeanant refuses to comply with the
officer’s orders and resists, obstructs, or delays the officer in


      *
       The Honorable Gary Feinerman for the Northern District of Illinois,
sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     SHAFER V. PADILLA                        3

his lawful performance of duties such that the officer has
probable cause to arrest him in a challenging environment.


                         COUNSEL

Mary Pat Barry (argued), Senior Deputy; Michael C.
Ghizzoni, County Counsel; Office of County Counsel, Santa
Barbara, California; for Defendant-Appellant.

Steven B. Stevens (argued), Los Angeles, California; Thomas
E. Beck, The Beck Law Firm, Los Alamitos, California; for
Plaintiff-Appellee.


                          OPINION

N.R. SMITH, Circuit Judge:

    College student Jay Russell Shafer refused to drop water
balloons at the request of Santa Barbara Sheriff’s Deputy
Freddy Padilla. Deputy Padilla then used a leg sweep
maneuver to take down and arrest Shafer. Shafer sued Deputy
Padilla, asserting violations of his constitutional rights under
42 U.S.C. § 1983. Deputy Padilla asserted the defense of
qualified immunity.

    The jury found that Deputy Padilla violated Shafer’s
Fourth Amendment constitutional right to be free from
excessive force. The evidence adduced at trial was sufficient
to sustain the jury’s verdict. However, Deputy Padilla is
entitled to qualified immunity, because, at the time this
incident occurred, the law was not clearly established that an
officer cannot progressively increase his use of force from
4                    SHAFER V. PADILLA

verbal commands, to an arm grab, and then a leg sweep
maneuver when a misdemeanant refuses to comply with the
officer’s orders and resists, obstructs, or delays the officer in
his lawful performance of duties such that the officer has
probable cause to arrest him in a challenging environment.

                     I. BACKGROUND

    Students from the University of California, Santa Barbara
(“UCSB”) commonly congregate on Del Playa Drive, a street
near the university campus. On October 4, 2009, hundreds to
thousands of intoxicated students congregated on Del Playa
Drive. There was loud music playing, and students were
yelling, screaming, and running around.

    Deputy Padilla and Sheriff’s Deputy Todd LeFemine
were on patrol that night on Del Playa Drive. Shortly after
midnight, four students approached the deputies and said that
they had just been hit with water balloons. This complaint
caused Deputy Padilla concern, because water balloons had
been a serious problem on Del Playa Drive and could cause
injuries or start fights. Within one minute of hearing this
report, Deputy Padilla identified two males—Shafer and his
friend Domenico Gianola—walking with water balloons in
their hands. The deputies approached Shafer and Gianola, and
Deputy Padilla ordered them to drop the balloons. Gianola
dropped his balloons, but Shafer did not. Instead, Shafer
asked Deputy Padilla three or four times why he could not
hold the balloons. Deputy Padilla continued to order Shafer
to drop the balloons but did not answer Shafer’s questions.

    What happened next is disputed. According to Shafer,
Deputy Padilla aggressively grabbed him by the arm and
pulled him toward the curb. Shafer attempted to maintain his
                         SHAFER V. PADILLA                                5

footing, but Deputy Padilla swung him toward the sidewalk.
Shafer never tried to break free of Deputy Padilla’s hold and
never resisted Deputy Padilla. Once Deputy Padilla and
Shafer reached the sidewalk, Deputy LeFemine grabbed
Shafer’s other arm. Deputy Padilla kicked Shafer’s feet out
from under him, and Shafer fell face first onto the pavement.
The officers piled on top of him.1 Shafer felt a knee go into
his back and a boot push his head into the pavement. One of
the officers handcuffed Shafer. The deputies pulled Shafer to
his feet and informed him that he was going to jail. Shafer
received a minor abrasion on his face and a bruise on his back
as a result of the takedown.

    Deputy Padilla’s version of the events is much different.
He testified that after Shafer refused to drop the water
balloons, Shafer attempted to walk past him. Deputy Padilla
grabbed Shafer’s arm and escorted him approximately ten
feet to the curb. Shafer resisted Deputy Padilla’s grasp by
pulling his arm away from Deputy Padilla. When they got to
the curb, Deputy Padilla guided Shafer to sit on the curb by
applying pressure to Shafer’s arms. Once Shafer sat on the
curb, Deputy Padilla let go of Shafer. Instantly, Shafer
attempted to stand up and run away from Deputy Padilla.
Deputy Padilla quickly reached out and grabbed Shafer.
Deputy LeFemine, who was on Shafer’s other side, also
reached out and grabbed Shafer. The momentum took Shafer,
Deputy Padilla, and Deputy LeFemine to the ground. Shafer
put his hands underneath his body and continued to try to get
up. In an attempt to control Shafer, Deputy Padilla applied
body weight pressure between Shafer’s torso and legs. Two
UCSB campus officers, Jeff Lupo and Christina Rauchhaus,

    1
      Shafer testified that four officers were involved in the takedown, but
could not identify any of the officers except Deputy Padilla.
6                    SHAFER V. PADILLA

witnessed this struggle and ran from the other side of the
street to provide assistance. To control Shafer, Officer
Raucchaus put her knee into Shafer’s back and handcuffed
him, and Officer Lupo applied pressure to Shafer’s legs. After
one of the officers handcuffed Shafer, they quickly pulled
him off the ground. Deputy Padilla told Shafer that he was
going to jail.

   Trial testimony from the other witnesses varied slightly.
However, the testimony was generally consistent that Deputy
Padilla used a leg sweep maneuver to take down Shafer and
Shafer resisted Deputy Padilla.

             II. PROCEDURAL HISTORY

    Shafer filed suit against Defendants pursuant to 42 U.S.C.
§ 1983. The district court dismissed all of the Defendants
from the suit except for Deputy Padilla. Before trial, Deputy
Padilla filed, and the district court denied, a motion for
qualified immunity. Shafer proceeded to trial on his claims
against Deputy Padilla for (1) false arrest; (2) malicious
prosecution; (3) violation of his First Amendment rights; and
(4) violation of his Fourth Amendment rights. Before the
jury’s deliberation, Deputy Padilla filed a motion for
judgment as a matter of law pursuant to Rule 50 of the
Federal Rules of Civil Procedure. The district court denied
the motion.

    The jury exonerated Deputy Padilla on every claim except
the Fourth Amendment claim for using excessive force.
Specifically, the jury found that Deputy Padilla had probable
cause to arrest Shafer for violations of California Penal Code
section 148. The jury also found that Shafer’s speech was not
a substantial or motivating factor for Deputy Padilla’s actions
                       SHAFER V. PADILLA                             7

against Shafer and that Deputy Padilla did not maliciously
prosecute Shafer. As to Shafer’s Fourth Amendment claim,
the jury found that Deputy Padilla used excessive force
against Shafer and that Deputy Padilla “acted with malice,
oppression, or in reckless disregard” of Shafer’s rights. The
jury awarded Shafer $45,000 in economic damages and
$75,000 in non-economic damages, but did not award
punitive damages.

    Deputy Padilla renewed his motion for judgment as a
matter of law based on qualified immunity or, in the
alternative, insufficient evidence of excessive force. He
moved in the alternative for a new trial. Deputy Padilla also
argued the district court erred by admitting prejudicial
evidence.2 The district court denied the motions, and Deputy
Padilla now appeals those decisions.

                       III. DISCUSSION

    We review de novo a district court’s qualified immunity
determination denying judgment as a matter of law. C.B. v.
City of Sonora, 769 F.3d 1005, 1022 (9th Cir. 2014). “In
doing so, we ‘view all evidence in the light most favorable to
the nonmoving party, draw all reasonable inferences in favor
of the non-mover, and disregard all evidence favorable to the
moving party that the jury is not required to believe.’” Id.
(quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1021
(9th Cir. 2008)). A motion for judgment as matter of law may
be granted if “the court finds that a reasonable jury would not
have a legally sufficient evidentiary basis to find for the party


    2
      Because we hold Deputy Padilla is entitled to qualified immunity,
we need not determine whether the district court erred by admitting
prejudicial evidence.
8                    SHAFER V. PADILLA

on that issue,” Fed. R. Civ. P. 50(a)(1), that is, “if, under the
governing law, there can be but one reasonable conclusion as
to the verdict,” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). Conversely, “[i]f reasonable minds could
differ as to the import of the evidence,” the motion should be
denied. Id. at 250–51. Because this appeal comes after the
jury’s verdict, we must “construe the facts in the light most
favorable to the jury’s verdict.” Castro v. Cty. of Los Angeles,
833 F.3d 1060, 1064 n.1 (9th Cir. 2016); Escriba v. Foster
Poultry Farms, Inc., 743 F.3d 1236, 1245 (9th Cir. 2014). In
this case, the jury’s verdict was split. Thus, we draw all
factual inferences and resolve all issues of credibility in favor
of the jury’s findings that Deputy Padilla had probable cause
to arrest Shafer for resisting, delaying, or obstructing Deputy
Padilla; that Shafer’s protected speech was not a substantial
or motivating factor for Deputy Padilla’s actions; that Deputy
Padilla did not maliciously prosecute Shafer; and that Deputy
Padilla used excessive force against Shafer.

    Qualified immunity affords limited protection to public
officials faced with liability under 42 U.S.C. § 1983, “‘insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.’” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). To determine whether qualified immunity applies in
a given case, we must determine: (1) whether a public official
has violated a plaintiff’s constitutionally protected right; and
(2) whether the particular right that the official has violated
was clearly established at the time of the violation.
Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 788 (9th Cir.
2016) (en banc). These two prongs of the analysis need not be
considered in any particular order, and both prongs must be
satisfied for a plaintiff to overcome a qualified immunity
                     SHAFER V. PADILLA                        9

defense. See Pearson, 555 U.S. at 236. We now examine both
prongs of the analysis to determine whether Deputy Padilla
is entitled to qualified immunity.

   A. Prong One: Constitutional Violation

    The first prong under the qualified immunity test
determines whether Deputy Padilla violated Shafer’s
constitutional right. The jury found that Deputy Padilla
violated Shafer’s Fourth Amendment right to be free from
excessive force. Deputy Padilla challenges the sufficiency of
the jury’s verdict as to this claim.

    Excessive force claims are founded on the Fourth
Amendment right to be free from unreasonable seizures of the
person. See U.S. Const. amend. IV; Graham v. Connor,
490 U.S. 386, 394–95 (1989). The Fourth Amendment is
implicated where an officer exceeds the bounds of reasonable
force in effecting “an arrest, investigatory stop, or other
seizure.” Graham, 490 U.S. at 395–96. We analyze excessive
force claims according to the constitutional touchstone of
objective reasonableness, so we do not consider an officer’s
subjective “intent or motivation.” Id. at 397. Instead, “the
question is whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation.” Id. This determination requires us to balance the
“nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental
interests at stake.” Id. at 396 (quotation marks and citations
omitted). To do this, we weigh three non-exclusive factors:
(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 [the suspect] is actively resisting
10                   SHAFER V. PADILLA

arrest or attempting to evade arrest by flight.” Id. We judge
the reasonableness of the force “from the perspective of a
reasonable officer on the scene, rather than with the 20/20
vision of hindsight,” id. at 396, because “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,” id.
at 397.

    We consider each of the Graham factors in turn to assess
whether a reasonable jury could have found Deputy Padilla’s
conduct to be excessive under the circumstances that he
faced. As to the severity of the crime involved, Deputy
Padilla initiated contact with Shafer based on a report that
someone had thrown water balloons at four individuals.
Approximately one minute later, Deputy Padilla saw Shafer
walking with water balloons in his hands. Deputy Padilla
argues that, based on this information, Shafer was suspected
of committing a battery, which is a crime of violence. Deputy
Padilla eventually arrested Shafer for resisting, obstructing,
or delaying a peace officer. See Cal. Penal Code § 148.
Although Deputy Padilla was entitled to use some degree of
force in executing Shafer’s arrest, Graham, 490 U.S. at 396,
the jury could conclude, based on the fact that Shafer was
suspected of committing only a misdemeanor, that Deputy
Padilla’s leg sweep maneuver was excessive under the
circumstances.

    As to the threat Shafer posed, he never made any verbal
threats toward Deputy Padilla. Shafer was noncompliant in
following Deputy Padilla’s orders and he did resist, obstruct,
or delay Deputy Padilla when Deputy Padilla lawfully
arrested Shafer. In light of the surrounding circumstances,
Shafer’s actions presented some threat to Deputy Padilla.
                     SHAFER V. PADILLA                      11

However, the jury could conclude (based on Shafer’s
testimony) that Shafer did not say anything threatening to
Deputy Padilla, and that any threat perceived by Deputy
Padilla was not “immediate” or significant enough to justify
a leg sweep maneuver.

    As to whether Shafer was actively resisting arrest or
attempting to evade arrest by flight, the jury’s verdict on
probable cause to arrest under California Penal Code section
148 makes clear that Shafer willfully resisted, obstructed, or
delayed Deputy Padilla during his execution of Shafer’s
arrest.

    Viewing all of the facts in the light most favorable to the
jury’s verdict, there is sufficient evidence to support the
jury’s verdict that the force used by Deputy Padilla was
excessive. The evidence presented was far from “one-sided,”
Anderson, 477 U.S. at 252, and did not give rise to “but one
reasonable conclusion as to the verdict,” id. at 250.

   B. Prong Two: Clearly Established Law

    Deputy Padilla may nonetheless be entitled to a qualified
immunity defense if Shafer’s Fourth Amendment rights were
not clearly established at the time Deputy Padilla committed
the violation. White v. Pauly, 137 S. Ct. 548, 551 (2017) (per
curiam); Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). For
a right to be clearly established, case law must ordinarily
have been earlier developed in such a concrete and factually
defined context to make it obvious to all reasonable
government actors, in the defendant’s place, that what he is
doing violates federal law. See White, 137 S. Ct. at 551
(explaining that “existing precedent must have placed the
statutory or constitutional question beyond debate . . .
12                    SHAFER V. PADILLA

[because] immunity protects all but the plainly incompetent
or those who knowingly violate the law” (internal quotation
marks and citation omitted)); Dunn v. Castro, 621 F.3d 1196,
1199–1200 (9th Cir. 2010).

    We begin our inquiry into whether this constitutional
violation was clearly established by defining the law at issue
in a concrete, particularized manner. See White, 137 S. Ct. at
552; al-Kidd, 563 U.S. at 743 (noting the Supreme Court has
repeatedly warned lower courts “not to define clearly
established law at a high level of generality”). We consider
this question in light of the jury’s findings that Deputy Padilla
had probable cause to arrest Shafer for resisting, obstructing,
or delaying arrest; that Shafer’s protected speech was not a
substantial or motivating factor for Deputy Padilla’s actions;
that Deputy Padilla did not maliciously prosecute Shafer; and
that Deputy Padilla used excessive force against Shafer.
Defined at an appropriate level of specificity, the question at
hand is whether an officer violates clearly established law
when he progressively increases his use of force from verbal
commands, to an arm grab, and then a leg sweep maneuver,
when a misdemeanant refuses to comply with the officer’s
orders and resists, obstructs, or delays the officer in his lawful
performance of duties such that the officer has probable cause
to arrest him in a challenging environment. The answer is no.

   We are mindful of the Supreme Court’s pronouncement
in White v. Pauly that, to satisfy this step in the qualified
immunity analysis, we generally must “identify a case where
an officer acting under similar circumstances as [Deputy
                         SHAFER V. PADILLA                               13

Padilla] was held to have violated the Fourth Amendment.”3
137 S. Ct. at 552. We are aware of no such case. Shafer cites
four cases with comparable degrees of force used by officers,
but none of which involved a challenging environment or an
act of physical resistance or obstruction by the arrestee. See
Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003); Wall
v. Cty. of Orange, 364 F.3d 1107, 1111–12 (9th Cir. 2004);
Hansen v. Black, 885 F.2d 642, 645 (9th Cir. 1989);
Blankenhorn v. City of Orange, 485 F.3d 463, 478–79 (9th
Cir. 2007). Shafer also cites two cases where officers used
more force than Deputy Padilla used. See Bryan v.
MacPherson, 630 F.3d 805, 832–33 (9th Cir. 2010); Lolli v.
Cty. of Orange, 351 F.3d 410, 416 (9th Cir. 2003). Although
we do not require a case to be “on all fours,” Deorle v.
Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001), “[w]e
cannot conclude . . . in light of these existing precedents, that
‘every reasonable official would have understood . . . beyond
debate,’” Mattos, 661 F.3d at 448 (quoting al-Kidd, 563 U.S.
at 741), that Deputy Padilla’s conduct in these circumstances
constituted excessive force based on the cases cited by
Shafer. In these cases, where there is a “hazy border between
excessive and acceptable force,” Brosseau v. Haugen,

    3
      There is prior precedent establishing that, in a sufficiently “obvious”
case of constitutional misconduct, we do not require a precise factual
analogue in our judicial precedents. Brosseau v. Haugen, 543 U.S. 194,
199 (2004) (per curiam) (“[I]n an obvious case, [highly generalized]
standards can ‘clearly establish’ the answer, even without a body of
relevant case law.”); United States v. Lanier, 520 U.S. 259, 271 (1997)
(“[I]n [some] instances a general constitutional rule already identified in
the decisional law may apply with obvious clarity to the specific conduct
in question, even though the very action in question has not previously
been held unlawful.” (internal quotation marks, alteration, and citation
omitted)). However, “the bar for finding such obviousness is quite high,”
Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011), and, because Shafer
does not argue that this exception applies, we do not address it.
14                   SHAFER V. PADILLA

543 U.S. 194, 201 (2004) (per curiam) (quoting Saucier v.
Katz, 533 U.S. 194, 206 (2001)), such that the officer
“reasonably misapprehends the law governing the
circumstances []he confronted,” qualified immunity protects
officers. Id. at 198.

    Shafer’s primary argument on appeal is that Deputy
Padilla violated clearly established law, because he had no
basis for using any force whatsoever. We disagree. The jury
found that Deputy Padilla had probable cause to arrest Shafer
for violations of California Penal Code section 148 for
resisting, delaying, or obstructing an officer. This entitled
Deputy Padilla to use some degree of force. See Graham,
490 U.S. at 396 (“[T]he right to make an arrest . . .
necessarily carries with it the right to use some degree of
physical coercion . . . .”).

    Finally, Shafer argues that it is Deputy Padilla’s burden
to demonstrate that he did not violate Shafer’s clearly
established constitutional right. Again, we disagree. It is the
plaintiff who “bears the burden of showing that the rights
allegedly violated were ‘clearly established.’” See, e.g., LSO,
Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000).

    Because Shafer fails to identify sufficiently specific
constitutional precedents to alert Deputy Padilla that his
particular conduct was unlawful, Deputy Padilla is entitled to
qualified immunity.
                    SHAFER V. PADILLA                      15

    Since we reverse and vacate the jury verdict and damages
awards, the parties shall bear their own costs associated with
this appeal.

  REVERSED, JURY VERDICT AND DAMAGES
AWARDS VACATED.
