                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

HARRY J. COLES,                           No. 11-16471
                  Plaintiff-Appellant,
                                             D.C. No.
                  v.                      1:09-cv-0167-
                                           LEK-BMK
JOSHUA EAGLE, sued in his
individual capacity; ELTON
ROBERTSON , sued in his individual         OPINION
capacity; MICHAEL HISATAKE ; DOE
DEFENDANTS, Unknown Emergency
Room Personnel at Queen’s Medical
Center, sued in his/her individual
capacity; QUEEN ’S MEDICAL
CENTER ; MATTHEW ING , M.D.,
               Defendants-Appellees.

      Appeal from the United States District Court
               for the District of Hawaii
 David A. Ezra and Leslie E. Kobayashi, District Judges,
                       Presiding

                Argued and Submitted
        October 11, 2012—Seattle, Washington

                Filed December 5, 2012

Before: Alex Kozinski, Chief Judge, A. Wallace Tashima,
         and Milan D. Smith, Jr., Circuit Judges.

               Opinion by Judge Tashima
2                         COLES V . EAGLE

                           SUMMARY*


                            Civil Rights

    The panel reversed the district court’s jury verdict and the
district court’s partial grant of summary judgment in a 42
U.S.C. § 1983 action in which plaintiff alleged excessive
force during an arrest.

    The panel held that the evidence gave rise to genuine
issues of fact that were material to determining whether
defendants used excessive force in breaking a car window
and pulling plaintiff through it. The district court therefore
erred in granting summary judgment to defendants. The
panel further held that the district court’s jury instruction,
which instructed that defendants did not, as a matter of law,
use excessive force when they broke the window and dragged
plaintiff through it, enforced an erroneous partial grant of
summary judgment in favor of defendants and, as such,
constituted reversible error.


                            COUNSEL

David A. Perez, Perkins Coie LLP, Seattle, Washington, for
Plaintiff-Appellant.

Curtis E. Sherwood, D. Scott Dodd, Deputies Corporation
Counsel, Honolulu, Hawaii, for Defendants-Appellees Joshua
Eagle and Elton Robertson.

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      COLES V . EAGLE                        3

D. Scott Dodd, Deputy Corporation Counsel, Honolulu,
Hawaii, for Defendant-Appellee Michael Hisatake.

Kunio Kawabe, Hisaka, Yoshida & Cosgrove, Honolulu,
Hawaii, for Defendants-Appellees Unknown Emergency
Room Personnel at the Queen’s Medical Center and Queen’s
Medical Center.

Patricia T. Fujii, Ayabe, Chong, Nishimoto, Sia & Nakamura,
Honolulu, Hawaii, for Defendant-Appellee Matthew Ing,
M.D.


                         OPINION

TASHIMA, Circuit Judge:

    Plaintiff Harry J. Coles claims that defendants Joshua
Eagle and Elton Robertson, officers of the Honolulu Police
Department, used excessive force in arresting him. The
officers moved for summary judgment, arguing that their
conduct was reasonable and, in any event, that they were
entitled to qualified immunity. Although Coles brought a
single claim of excessive force under 42 U.S.C. § 1983, the
district court held on summary judgment that some of the
officers’ actions were reasonable as a matter of law, but other
parts of the encounter raised genuine issues of material fact.
See Coles v. Eagle, 753 F. Supp. 2d 1092 (D. Hawaii 2010).
A jury was then asked to assess the reasonableness of only
some aspects of the officers’ conduct; it found in their favor.
Coles argues that the district court improperly resolved
factual disputes and made inferences in favor of the officers,
and that the subsequent jury verdict must be vacated because
4                      COLES V . EAGLE

the jury was erroneously instructed that some of the officers’
force was reasonable as a matter of law. We agree.

                               I.

A. The Arrest

    The following events happened over the course of
approximately four minutes, in the middle of the night. Coles
was driving a Nissan sports car along Kapiolani Boulevard in
Honolulu. According to Officer Eagle, Coles was weaving
between lanes and then slowed to a speed of around two
miles per hour. Coles disputes that he was weaving and says
that he moved to the right lane when he saw Eagle’s patrol
car approaching from the rear. Eagle ran the Nissan’s license
plate and learned that it was reported stolen. He then signaled
for Coles to pull over.

     Coles did not pull over immediately; instead, he made the
first available right turn into a parking lot. Defendants assert
that he made a “quick” turn into the lot and then “accelerated
rapidly” to the far end where he stopped abruptly at an exit
that was blocked by three-foot-high concrete barriers. Coles
disputes this account and says he pulled into the lot so that the
traffic stop could take place “out of harm[’]s way.” Eagle
claims that the exit appeared to be unobstructed when viewed
from the lot entrance. Coles disagrees and states that the
barriers, which were bright yellow, were visible even from a
distance.

    Eagle positioned his vehicle directly behind the Nissan,
sandwiching it between the concrete barriers and his patrol
car. He then approached the Nissan and ordered Coles to
exit. Coles maintains that he tried to open the door but that
                      COLES V . EAGLE                       5

it was locked and, being unfamiliar with that particular car,
did not know how to unlock the door.

    Officer Robertson then arrived on the scene. He saw that
Eagle was ordering Coles to exit the vehicle, and claims the
Nissan’s engine was still running. Coles maintains that he
turned the engine off at some point during the encounter.
Coles told the officers that he was unable to open the locked
door. Robertson drew his weapon and positioned himself
near the Nissan, with a clear view of Coles. The officers then
ordered Coles to do the impossible: they simultaneously
instructed him to exit the vehicle and keep his hands on the
wheel. Defendants claim that Coles was making “furtive”
hand movements, gesturing downward and removing his
hands from their view. Coles disagrees and maintains that he
was simply trying to unlock the door, in attempted
compliance with defendants’ contradictory orders. Coles
concedes, however, that he moved his hands in an effort to
open the door.

    What happened next is the most critical of many disputed
facts: Coles says he put both hands on the wheel and looked
straight ahead, frozen with fear. The officers deny that Coles
placed his hands on the wheel and maintain that he continued
to make furtive gestures. Then, without warning, Eagle
smashed the driver’s side window with his baton, and the
officers began pulling the 5’9”, 200-pound Coles through the
window.

    The officers claim that Coles resisted the extraction by
locking his legs around the steering column. Coles disputes
that he resisted and explains that his body size simply made
the task difficult. Eagle concedes that he kicked Coles twice
6                     COLES V . EAGLE

in the upper torso during the extraction and explains that it
was a “diversionary tactic” to induce Coles’s compliance.

    Coles claims that after the officers removed him from the
car, they threw him on the ground and kicked him repeatedly.
He says that Eagle beat him with a baton while Robertson
“fell on [him] with his knee, in the middle of his back, and
remained there while [Eagle] struck [him] in the head with his
baton and then handcuffed him.” Finally, he claims that
“[p]rior to being handcuffed, the officers tore off his blood
spattered shirt and pants and left him in his underw[ear].”
The officers deny that they beat Coles after removing him
from the vehicle.

B. Summary Judgment

    The officers moved for summary judgment on qualified
immunity grounds. As to the question of whether defendants
violated Coles’s Fourth Amendment right to freedom from
unreasonable seizure, the district court held that the force
used to break the car window and pull Coles from the car was
reasonable but that genuine issues of material fact existed
concerning the officers’ use of force “once Coles was
removed from the car.” Coles, 753 F. Supp. 2d at 1101
(emphasis omitted). The district court granted partial
                           COLES V . EAGLE                               7

summary judgment in favor of the officers,1 after which the
case was reassigned to a new judge for trial.

C. Jury Trial

    A jury considered the narrow question of whether
defendants used unreasonable force after removing Coles
from the car. The jury was instructed:

      This Court has already found as a matter of law, that
      the arrest was lawful, and that defendants’ acts of
      breaking the vehicle window and pulling plaintiff
      from the vehicle was reasonable under the
      circumstances.       Thus, in order to prove an
      unreasonable seizure in this case, the plaintiff must
      prove by a preponderance of the evidence that the
      officers used excessive force when they used physical
      force to arrest plaintiff after he was removed from the
      vehicle.



  1
   Although the district court’s order is formally titled: “Order Denying
Defendants’ Motion for Summary Judgment,” Coles, 753 F. Supp. 2d at
1093 (emphasis omitted), it was in substance a partial grant of defendants’
motion. See also id. at 1101 (“Defendants are not entitled to qualified
immunity on Coles’ claim that they used excessive force against him once
he was out of the car and summary judgment is DENIED.” (emphasis
added)).

     The district court did not reach the question of whether defendants’
actions violated clearly established law of which a reasonable officer
would have been aware – the second prong of Saucier v. Katz, 533 U.S.
194 (2001). Although defendants argued this point in their motion for
summary judgment, they failed to do so on appeal, and we denied their
post-argument motion for supplemental briefing on this issue. The issue
remains open for consideration on remand.
8                     COLES V . EAGLE

(Emphasis added.) Under this instruction, the jury found in
favor of defendants. Coles appealed both from the jury’s
verdict and the district court’s grant of partial summary
judgment.

                             II.

    We review de novo the district court’s underlying order
granting in part and denying in part defendants’ motion for
summary judgment on qualified immunity grounds. See
Blanford v. Sacramento Cnty., 406 F.3d 1110, 1114 (9th Cir.
2005). Where disputed issues of material fact exist, we
assume the version asserted by Coles, the non-movant. See
KRL v. Estate of Moore, 512 F.3d 1184, 1188–89 (9th Cir.
2008). All reasonable inferences must be drawn in favor of
the non-movant. John v. City of El Monte, 515 F.3d 936, 941
(9th Cir. 2008). We have jurisdiction to review the decisions
below pursuant to 28 U.S.C. § 1291.

    Whether the jury instructions correctly stated the law is
also subject to de novo review. See Hunter v. Cnty. of
Sacramento, 652 F.3d 1225, 1232 (9th Cir. 2011).

                             III.

    We analyze all claims of excessive force that arise during
or before arrest under the Fourth Amendment’s
reasonableness standard, as guided by the Supreme Court’s
decision in Graham v. Connor, 490 U.S. 386, 394 (1989).
Determining whether defendants’ use of force was reasonable
“requires a careful balancing of the nature and quality of the
intrusion on the individual’s Fourth Amendment interests
against the countervailing governmental interests at stake.”
Id. at 396 (internal quotation marks omitted). We have often
                       COLES V . EAGLE                         9

observed that “[b]ecause such balancing nearly always
requires a jury to sift through disputed factual contentions,
and to draw inferences therefrom . . . summary judgment or
judgment as a matter of law in excessive force cases should
be granted sparingly.” Santos v. Gates, 287 F.3d 846, 853
(9th Cir. 2002).

    Here, the evidence gives rise to genuine issues of fact that
are material to determining whether defendants used
excessive force in breaking the car window and pulling Coles
through it. The district court therefore erred in granting
partial summary judgment to defendants. See Fed. R. Civ. P.
56(c). Because “the materiality determination rests on the
substantive law,” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986), we turn our attention to the reasonableness
of defendants’ conduct under the substantive law of Graham:

   We apply Graham by first considering the nature and
   quality of the alleged intrusion; we then consider the
   governmental interests at stake by looking at (1) how
   severe the crime at issue is, (2) whether the suspect
   posed 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.
   Deorle v. Rutherford, 272 F.3d 1272, 1279–80 (9th
   Cir. 2001). As we have previously explained, [t]hese
   factors, however, are not exclusive. Rather, we
   examine the totality of the circumstances and consider
   whatever specific factors may be appropriate in a
   particular case, whether or not listed in Graham.
   Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir.
   2010) (quoting Franklin v. Foxworth, 31 F.3d 873,
   876 (9th Cir. 1994)).
10                    COLES V . EAGLE

Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en
banc) (alteration in original) (internal quotation marks
omitted). Although it is well-settled that “officers need not
employ the least intrusive degree of force possible . . .
officers must consider less intrusive methods of effecting the
arrest. . . .” Bryan, 630 F.3d at 831 n.15 (internal quotation
marks, citation and emphasis omitted).

A. Nature and Quality of the Intrusion

    We first consider “the nature and quality of the alleged
intrusion” on Coles’s rights. Mattos, 661 F.3d at 441. It is
undisputed that defendants shattered the driver’s side
window, pulled Coles through that window, and kicked him
in the upper torso during the extraction. We must resolve in
Coles’s favor the disputed allegation that defendants
continued to beat him until they handcuffed him.

    Both the force used to extract Coles through the broken
glass window and the baton blows were “capable of inflicting
significant pain and causing serious injury,” and as such “are
regarded as ‘intermediate force’ that, while less severe than
deadly force, nonetheless present a significant intrusion upon
an individual’s liberty interests.” Young v. Cnty. of L.A.,
655 F.3d 1156, 1161–62 (9th Cir. 2011). We therefore agree
with the district court that Coles has established prima facie
a significant Fourth Amendment intrusion. See Coles, 753 F.
Supp. 2d at 1097–98.
                           COLES V . EAGLE                             11

B. Governmental Interests

     1. Severity of the Crime

    The facts relevant to the “severity of the crime” prong are
not genuinely at issue. The officers had reason to believe that
Coles had stolen a car,2 a felony-grade offense. We agree
with the district court that this factor weighs in favor of
defendants. See Miller v. Clark Cnty., 340 F.3d 959, 964 (9th
Cir. 2003).

     2. Immediacy of the Threat

    The “most important Graham factor is whether the
suspect posed an immediate threat to the safety of the officers
or others.” Mattos, 661 F.3d at 441 (internal quotation marks
omitted). There is a material factual dispute as to whether
Coles’s hands were on the steering wheel when defendants
shattered the car window: Coles says yes; the officers say no.
The dispute is material because it goes to the heart of the
threat that defendants faced at the moment they broke the
window, and its resolution rests entirely on whose version of
the story a fact-finder deems more credible.

    We must, in the context of summary judgment, resolve
this disputed factual issue in favor of Coles, draw all
reasonable inferences in his favor, and view “from the
perspective of a reasonable officer on the scene” the
circumstances that existed immediately before the officers
broke the window. Graham, 490 U.S. at 396. Those


 2
   Coles had in fact stolen the Nissan he was driving that night. See State
v. Coles, 209 P.3d 194 (unpublished table decision), 2009 W L 1280604
(Haw. App. May 11, 2009) (affirming Coles’ conviction).
12                     COLES V . EAGLE

circumstances were as follows: a suspected car thief, whose
car was boxed in between a concrete barrier and a patrol car,
claimed he was unable to unlock his car door; the officers
repeatedly gave the suspect conflicting orders to exit the
vehicle and to keep his hands visible; the suspect made hand
movements in attempted compliance with the order to exit,
but eventually, according to him, placed both hands on the
wheel and looked straight ahead; and one officer had a gun
trained on the suspect. On these facts, a reasonable jury
could conclude that the officers did not face such an
immediate threat to their safety as to justify the extreme
measure of smashing a car window and dragging Coles
through it.

     3. Resisting or Evading Arrest

     The third Graham factor asks whether Coles was
“actively resisting arrest or attempting to evade arrest by
flight” and whether “any other exigent circumstances
. . . existed at the time of the arrest.” Deorle, 272 F.3d at
1280 (internal quotation marks omitted). Once again,
material issues of fact reserve these questions for the jury.

    Although it is undisputed that Coles did not pull over
immediately in response to Eagle’s signal, two facts material
to the question of evasion are at issue: (1) whether Coles
turned “quickly” into the parking lot and then sped up,
stopping abruptly at the far end of the parking lot where an
exit was blocked by concrete barriers; and (2) whether that
exit appeared to be unobstructed when viewed from the street.
Resolving these disputes in favor of Coles, as we must, we
cannot say that making the first available right turn and
pulling slowly into a parking lot, the exit of which was clearly
blocked, is a factual circumstance suggesting evasion. See
                      COLES V . EAGLE                       13

Liberal v. Estrada, 632 F.3d 1064, 1079 (9th Cir. 2011).
Moreover, the fact that Coles was seated in a car that was
wedged between a concrete barrier and a patrol car meant
that, at the time defendants decided to shatter the window, the
risk of evasion or escape was minimal.

    As to the question of whether Coles actively resisted
arrest by failing to comply with a lawful order to exit the
vehicle, the answer is no. “[W]e have drawn a distinction
between passive and active resistance,” and failing to exit a
vehicle is not “active resistance” and does not justify the
officers’ actions. Bryan, 630 F.3d at 829–30 (“Even if Bryan
failed to comply with the command to remain in his vehicle,
such noncompliance does not constitute ‘active resistance’
supporting a substantial use of force.”); cf. Mattos, 661 F.3d
at 445 (suspect who “refused to get out of her car when
requested to do so and later stiffened her body and clutched
her steering wheel to frustrate the officers’ efforts to remove
her from the car” had “engaged in some resistance to arrest”).
Moreover, given that the officers had ordered Coles to place
his hands on the wheel, a jury could find that Coles was
complying with the officers’ order by staying in the car.

    Finally, it is undisputed that Coles moved his hands off of
the steering wheel at various points during the encounter; the
officers characterize these as “furtive” movements that
justified their actions. But to the extent that Coles’s hand
movements constituted an exigency, it was one of the
officers’ own making: they ordered Coles simultaneously to
keep his hands visible and exit a locked vehicle, even though
compliance with the latter order necessarily required violating
the former. A jury could reasonably find that Coles’s hand
movements were attempts to comply with the officers’ order
to exit the vehicle. Rather than precipitating an exigency, the
14                         COLES V . EAGLE

officers could simply have given Coles specific, non-
contradictory instructions.3 Although not dispositive, the
presence of this reasonable, less-intrusive alternative course
of action figures into our Graham analysis. See Bryan,
630 F.3d at 831 & n.15. Considering the totality of the
circumstances, this factor weighs against the officers.

C. Balancing the Interests

    We “balance the gravity of the intrusion on [Coles]
against the government’s need for that intrusion to determine
whether it was constitutionally reasonable.” Miller, 340 F.3d
at 964. Here, the scale tips in favor of Coles. A reasonable
jury could conclude that the officers’ force was not justified
against an individual: (1) who was suspected of a nonviolent
felony and did not appear armed; (2) who did not actively
resist or evade arrest and, in any event, had no real chance of
escape; (3) who was given conflicting orders by two officers,
one of whom had a gun trained on him; and (4) whose hands
were on the steering wheel just before officers shattered the
driver’s side window and proceeded to drag him through it.
Thus, the district court erred in concluding on summary
judgment that defendants did not employ excessive force as
a matter of law when they broke the car window and dragged
Coles through it.




 3
   W e can hypothesize any number of orders that could have defused the
situation and avoided a forcible window extraction. For example: “Put
your right hand on top of the steering wheel and use your left hand to find
the door lock.”
                          COLES V . EAGLE                             15

                                  IV.

    The trial court’s jury instruction enforced an erroneous
partial grant of summary judgment in favor of defendants
and, as such, constitutes reversible error.4 Jury instructions
must correctly state the law and failure to do so warrants
reversal, unless the error is harmless. See Hunter, 652 F.3d
at 1232. Here, the jury was instructed that defendants did not,
as a matter of law, use excessive force when they broke the
window and dragged Coles through it. This instruction was
prejudicial error because, “looking to the instructions as a
whole, the substance of the applicable law was [not] fairly
and correctly covered.” Dang v. Cross, 422 F.3d 800, 805
(9th Cir. 2005) (alteration in original) (internal quotation
marks omitted). The substance of the applicable law under
Graham is whether the officers’ force was reasonable under
the totality of the circumstances, and the court’s instruction
plainly prevented the jury from applying Graham to all of the
relevant facts.

                                   V.

    The judgment on the jury verdict and the district court’s
earlier partial grant of summary judgment in favor of
defendants are reversed, and the case is remanded for further
proceedings consistent with this opinion.

    REVERSED and REMANDED.




  4
    W e recognize that, given the court’s earlier partial grant of summary
judgment, the trial judge was required to give such an instruction.
