                                                                           FILED
                           NOT FOR PUBLICATION                              APR 29 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DAVID P. LINDSAY, an individual,                 No. 09-55652

             Plaintiff - Appellant,              D.C. No. 2:08-cv-02925-RGK-JC

  v.
                                                 MEMORANDUM *
DANIEL KIERNAN, individually and in
his representative capacity as a police
officer,

             Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                              Submitted April 7, 2010
                                Pasadena, California

Before: PREGERSON, BEEZER and THOMPSON, Circuit Judges.

       At approximately 11:30 pm on December 9, 2006, the Santa Paula Police

Department dispatched Defendant Officer Kiernan, along with several other police

officers, to respond to a telephone call from a young woman working as a clerk at a

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
gas station convenience store. The clerk was concerned about an intoxicated man

who insisted on buying Zima beer and refused to leave. When Officer Kiernan

arrived at the scene, he saw Plaintiff David P. Lindsay (“Lindsay”) getting out of

his taxi, which was surrounded by four officers. Lindsay, a six foot, 220 pound,

white male, was obviously intoxicated, angry, and belligerent.

       The officers repeatedly told Lindsay to get back in the cab and leave the gas

station. Lindsay refused and became increasingly hostile, yelling, “If you fuck

with me, I’m telling you . . .” He insisted that the officers go with him to confront

the young female clerk so she would sell him Zima beer. When Officer Kiernan

grabbed Lindsay’s arm to prevent him from re-entering the store and confronting

the clerk, Lindsay broke free, barreled through the other officers, and walked

quickly towards the store, yelling, “Let’s get the fuck in there and clean this place

up.”

       When Lindsay was close to the glass sliding door of the convenience store,

Officer Kiernan asked Lindsay, “Okay you want the taser?” Lindsay stated, “I

don’t mind it,” and continued walking towards the store. For the first time in his

career, Officer Kiernan fired his taser in dart mode for the standard five second

interval. Lindsay fell to the ground. The officers told him, “Put your hands behind

your back. You’ll get it one more time. Roll over. Roll over, hands behind your


                                           2
back. You’ll get it again.” When Lindsay ignored these commands and attempted

to get up, Officer Kiernan fired his taser a second time for four seconds. Lindsay

was eventually handcuffed. Lindsay’s physical resistance to the officers and the

subsequent tasings occurred within a matter of seconds. The officers called the

paramedics immediately. Lindsay was transported to a hospital, where he refused

treatment. In his deposition, Lindsay testified that he did not experience any

injuries that were “enough to make an issue over.”

      Lindsay sued Officer Kiernan in federal district court for using excessive

force in violation of 42 U.S.C. § 1983 and committing various state law torts.1 The

district court granted Officer Kiernan’s motion for summary judgment on qualified

immunity and declined to exercise supplemental jurisdiction over Lindsay’s state

law claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                          I.

      We review the district court’s grant of summary judgement de novo and

construe all disputed facts in favor of the non-moving party. See, e.g., Davis v.

City of Las Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007) (citation omitted); Bryan

v. McPherson, 590 F.3d 767, 772 (9th Cir. 2009) (citation omitted).


      1
        We deny Lindsay’s request for judicial notice of a judgment in his favor in
a 2001 civil rights case involving several Santa Paula police officers for excessive
use of force.

                                          3
                                          II.

      The threshold question in the qualified immunity analysis is whether a

constitutional violation occurred. See Mattos v. Agarano, 590 F.3d 1082, 1086

(9th Cir. 2010) (citation omitted). To determine whether Officer Kiernan’s

conduct violated Lindsay’s Fourth Amendment rights, we examine “whether the

officers’ actions are objectively reasonable in light of the facts and circumstances

confronting them.” Bryan, 590 F.3d at 772 (internal quotation marks and citation

omitted). The objective reasonableness of an officer’s conduct is evaluated by

balancing the degree of force applied against the government’s need to use that

force. Id. (citation omitted).

      The use of a taser in dart mode qualifies as an intermediate level of force,2

which “must be justified by a strong government interest that compels the

employment of such force.” Id. at 774-75 (internal quotation marks and citation




      2
         In Brooks v. City of Seattle, No. 08-35526, —F.3d—, 2010 WL 1135776
(9th Cir. filed March 26, 2010), we recently distinguished the use of a taser in dart
mode from the use of the taser in drive-stun mode. We recognized that the use of a
taser in dart mode qualifies as intermediate force, but held that a taser in drive-stun
mode qualifies as less than intermediate force. Id. at 4932. Because Officer
Kiernan used his taser in dart mode, Brooks does not apply.

                                           4
omitted).3 To examine the government’s interest in the use of force, this court

considers (1) whether the suspect poses an immediate threat to the safety of the

officers or others; (2) whether the suspect is actively resisting; and (3) the severity

of the initial offense. Id. at 775 (quoting Graham v. Connor, 490 U.S. 386, 396

(1989)). Courts also may examine “the availability of alternative methods of

capturing or subduing a suspect.” Smith, 394 F.3d at 701 (citation omitted).

      “The most important factor under Graham is whether the suspect posed an

immediate threat to the safety of the officers or others.” Bryan, 590 F.3d at 775

(internal quotation marks and citations omitted). Here, Lindsay’s intoxicated state,

increasing hostility, physical resistance, and repeated refusal to leave the gas

station could have led a reasonable officer to believe that Lindsay posed an

immediate threat to the safety of the officers and the safety of the young female

convenience store clerk. See Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir.

2004) (holding that use of a taser gun was reasonable in a “difficult, tense, and




      3
         Lindsay fails to demonstrate on this record that deployment of a taser at a
gas station “creates a substantial risk of causing death or serious bodily injury.”
Smith v. City of Hemet, 394 F.3d 689, 706 (9th Cir. 2005) (en banc). Accordingly,
we conclude that Officer Kiernan used intermediate, not deadly, force against
Lindsay.

                                            5
uncertain” traffic stop where the plaintiff was “hostile, belligerent, and

uncooperative”).4

       Moreover, it is undisputed that Lindsay, while heavily intoxicated, actively

resisted the officers repeated verbal commands to leave the gas station, broke free

from Officer Kiernan’s grasp, and barreled through five officers to confront the

young female convenience store clerk. Moreover, Lindsay ignored Officer

Kiernan’s warning that he would deploy the taser unless Lindsay complied with the

officers’ orders. Such conduct qualifies as more than minor resistance.5 In

addition, a reasonable officer could have concluded that Lindsay continued to

actively resist arrest by attempting to get up after the first taser shot, despite

officers’ commands to stay down and submit to arrest.6



       4
         Our en banc decision in Smith v. City of Hemet, 394 F.3d 689 (9th Cir.
2005) is not to the contrary. Unlike the plaintiff in Smith who was not physically
threatening and eventually complied, Lindsay physically resisted the officers’
attempts to make him leave the gas station and refused to comply with any of the
officers’ commands. Id. at 702.
       5
         In Smith, we determined that the plaintiff, who ignored some of the
officers’ commands, only engaged in minor resistance because he did not attempt
to run from the officers and physically resisted for only a short time. See 394 F.3d
at 703. Here, Lindsay refused to halt or comply with any of the officers’
commands until after he was tased twice.
       6
        Lindsay’s subjective motivation for getting up is irrelevant because we
must consider whether Officer Kiernan’s actions were objectively reasonable.
Bryan, 590 F.3d at 772.

                                             6
      Given the volatile situation, Lindsay’s refusal to comply with any of the

officer’s verbal commands, and his physical resistance despite the presence of

multiple officers, Officer Kiernan could have reasonably believed that deploying

his taser after a warning would be the least intrusive method of subduing Lindsay.7

In any case, officers need not employ the “least intrusive degree of force possible.”

Bryan, 590 F.3d at 780 n.15 (internal quotation marks and citations omitted).

      Although Lindsay’s offenses were relatively minor misdemeanors, every

other Graham factor suggests that Officer Kiernan had a strong interest in using

intermediate force against Lindsay. Lindsay repeatedly refused to comply with

officers’ orders, physically resisted their attempts to make him leave the gas

station, and invited Officer Kiernan to deploy his taser against him. Combined

with Lindsay’s hostility, belligerence, and intoxication, Officer Kiernan reasonably

believed that intermediate force was required to protect the young female clerk and

prevent a potentially violent physical altercation between Lindsay and the officers.

Tasers are only justified under compelling circumstances such as these.




      7
        Santa Paula Police Department General Order 8-8 permits use of a taser
“against subjects who are using active resistance or aggression toward officers,
displaying or using aggression towards citizens and /or are a threat to themselves.”

                                          7
Accordingly, we hold that Officer Kiernan’s conduct did not violate Lindsay’s

Fourth Amendment rights.8

                                           II.

      The district court did not err in granting Officer Kiernan summary judgment

on Lindsay’s only federal claim. Therefore, we do not disturb the district court’s

decision to decline to exercise supplemental jurisdiction over Lindsay’s remaining

state claims. See 28 U.S.C. § 1367(c)(3) (stating that district courts may decline to

exercise supplemental jurisdiction over a claim if “the district court has dismissed

all claims over which it has original jurisdiction”).

                                          III.

      For the foregoing reasons, we affirm the district court’s grant of summary

judgment in favor of Officer Kiernan on the § 1983 claim and its dismissal of

Lindsay’s state law claims for lack of jurisdiction.

      AFFIRMED.




      8
         Because we hold that the Constitution was not violated, we need not
proceed to the second prong of the qualified immunity analysis. See Mattos, 590
F.3d at 1086. Moreover, we need not address whether Lindsay’s conviction for
violation of Cal. Penal Code § 148(a)(1) bars his lawsuit.

                                           8
