                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 30 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JAMES DANIEL EMMETT, an                          No.   15-35222
individual,
                                                 D.C. No. 3:14-cv-05010-BHS
              Plaintiff-Appellant,

 v.                                              MEMORANDUM*

CITY OF TACOMA, a municipal
corporation; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                        Argued and Submitted May 15, 2017
                               Seattle, Washington

Before: HAWKINS, GOULD, and PAEZ, Circuit Judges.

      Plaintiff James Emmett (“Emmett”) appeals the district court’s grant of

summary judgment to Defendants Christopher Bain and Daniel Nettleton

(“Defendants,” or “officers”), two Tacoma police officers who arrested Emmett



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
following a traffic stop. Emmett filed a 42 U.S.C. § 1983 action against

Defendants, alleging they violated his Fourth Amendment right to be free from

“excessive force” when the officers tased him after he resisted arrest. The district

court held the officers were protected by qualified immunity. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

       We review de novo a district court’s grant of summary judgment.

Millennium Labs., Inc. v. Ameritox, Ltd., 817 F.3d 1123, 1129 (9th Cir. 2016). We

consider qualified immunity under a two-part test, asking (1) “whether the officer

violated a plaintiff’s constitutional right,” and, if so, (2) “whether the constitutional

right was ‘clearly established in light of the specific context of the case’ at the time

of the events in question.” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011)

(en banc) (hereinafter “Mattos II”) (quoting Robinson v. York, 566 F.3d 817, 821

(9th Cir. 2009)). At the first step, an officer violates a plaintiff’s rights if his use of

force is not “objectively reasonable.” Graham v. Connor, 490 U.S. 386, 397

(1989). We determine reasonableness by balancing “the nature and quality of the

intrusion on the individual’s Fourth Amendment interests against the

countervailing government interests at stake.” Id. at 396 (internal quotation marks

omitted).




                                             2
       At the second step, a constitutional right is only “clearly established” if it is

“beyond debate.” Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (quoting Ashcroft v.

al-Kidd, 563 U.S. 731, 743 (2011)). While we “have never required a prior case

‘on all fours prohibiting that particular manifestation of unconstitutional conduct’

to find a right ‘clearly established,’” Torres v. City of Madera, 648 F.3d 1119,

1128 (9th Cir. 2011) (quoting Deorle v. Rutherford, 272 F.3d 1272, 1286 (9th Cir.

2001), the case law must demonstrate that an officer could not reasonably believe

his use of force was constitutional, see Deorle, 272 F.3d at 1285.

       1. Taking the evidence in the light most favorable to Emmett and resolving

all factual disputes in his favor, we conclude that a reasonable jury could find that

Defendants violated Emmett’s constitutional rights. Smith v. City of Hemet, 394

F.3d 689, 701, 707 (9th Cir. 2005) (en banc). Deploying a taser in dart mode

against Emmett was a significant intrusion on his Fourth Amendment interests.

Graham, 490 U.S. at 396; Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir.

2010). And although Emmett resisted arrest, he was not armed, did not engage in

any serious criminal activity, and did not attempt to flee. Graham, 490 U.S. at

396.

       2. At the time Emmett was arrested, however, our law relating to the use of

tasers was not “clearly established.” Although we had held the use of a taser in


                                            3
somewhat similar circumstances in Bryan, 630 F.3d 805 could warrant finding a

Fourth Amendment violation, contrary holdings in Brooks v. City of Seattle, 599

F.3d 1018 (9th Cir. 2010) and Mattos v. Agarano, 590 F.3d 1082 (9th Cir. 2010)

were still good law. We did not reverse our holdings in Brooks and Mattos until

our en banc decision in Mattos II in October 2011, three months after the events in

this case.

       Although Emmett argues Brooks and Mattos are distinguishable and, as a

result, Bryan controls, his argument is unpersuasive. The plaintiff in Bryan did not

resist arrest, while the plaintiff in Brooks did. Compare Bryan, 630 F.3d at 822,

with Brooks, 599 F.3d at 1021. Accordingly, whether Defendants could

constitutionally deploy a taser against Emmett was not “beyond debate” at the time

of his arrest. See Stanton, 134 S. Ct. at 5.

       AFFIRMED.




                                           4
