                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 15-1555


BRIAN KNITE YATES,

                 Plaintiff - Appellee,

           v.

CHRISTOPHER BLAIR TERRY,

                 Defendant - Appellant,

           and

JON R. ZUMALT; CITY OF NORTH CHARLESTON; NORTH CHARLESTON
POLICE DEPARTMENT; JOHN DOE DEFENDANTS,

                 Defendants.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. C. Weston Houck, Senior District
Judge. (2:11-cv-02289-CWH)


Argued:   January 27, 2016                   Decided:   March 31, 2016


Before WYNN and HARRIS, Circuit Judges, and Loretta C. BIGGS,
United States District Judge for the Middle District of North
Carolina, sitting by designation.


Affirmed by published opinion. Judge Biggs wrote the opinion, in
which Judge Wynn and Judge Harris joined.


ARGUED: Robin Lilley Jackson, SENN LEGAL, LLC, Charleston, South
Carolina, for Appellant. Jason Scott Luck, SEIBELS LAW FIRM, P.A.,
Charleston, South Carolina, for Appellee.   ON BRIEF: Gordon H.
Garrett, GARRETT LAW OFFICES, North Charleston, South Carolina,
for Appellee.




                               2
LORETTA COPELAND BIGGS, District Judge:

     Officer    Christopher   Blair    Terry   (“Terry”)   appeals   the

district court’s order denying his motion for summary judgment on

the basis of qualified immunity.       For the reasons that follow, we

affirm.

                                  I.

     In reviewing the district court’s denial of Terry’s motion

for summary judgment, we view the facts in the light most favorable

to Brian Yates (“Yates”), the non-moving party, as we are required

to do.    See Plumhoff v. Rickard, 134 S. Ct. 2012, 2017 (2014);

Waterman v. Batton, 393 F.3d 471, 473 (4th Cir. 2005).

     On December 27, 2008, Yates, a first sergeant and Iraq War

veteran, was driving a 1972 customized Buick Skylark on a highway

in North Charleston, South Carolina.      His mother, Patricia Yates,

and brother, Kelvin Brown, were in a separate vehicle following

behind him.    Yates drove past two police cruisers when one of the

cruisers, driven by Terry, pulled out and began to follow him.        At

some point, Terry activated his lights; however, there was a

vehicle between Terry and Yates, which led Yates to believe that

the officer was attempting to stop another vehicle.         Yates then

changed lanes, using his turn signal, to allow Terry to pass.        When

Yates realized that Terry was behind him, Yates pulled over at a

gas station.    At the gas station, Terry approached Yates’ vehicle

and requested Yates’ driver’s license.         Yates responded that he


                                   3
did not have his driver’s license but that he did have military

identification.   Terry then opened the car’s door and forced Yates

out of the car.      Around this time, Yates’ mother and brother

arrived at the gas station.   Terry ordered Yates to place his hands

on the car.     Yates complied.   Terry informed Yates that he was

under arrest, which prompted Yates to inquire as to the basis for

the arrest.    Terry failed to provide an explanation.   With Yates’

hands on top of the car and Terry behind him, Yates turned his

head to the left and Terry deployed his taser in “probe mode.” 1

Yates fell to the ground.     Yates’ brother then asked Terry why he

tased Yates, and Terry responded, “Back up[,] or do you want some

too[?]” J.A. 23, 68–69, 82, 479-80.    While Yates was still on the

ground and having made no attempt to get up, Terry tased him a

second time.   Following the second application of the taser, Yates

told his brother to call his commanding officer and then reached

for his cell phone, which was clipped to his waist, when Terry

tased Yates a third time.   Yates’ mother passed out after the third

taser deployment.


     1 Generally, a taser has two modes: “probe” or “dart” mode
and “drive stun” mode.     See Estate of Armstrong v. Vill. of
Pinehurst, 810 F.3d 892, 897 n.3 (4th Cir. 2016); Meyers v.
Baltimore Cty., 713 F.3d 723, 728 n.3 (4th Cir. 2013). “In probe
mode, two probes are fired from a distance, attached to thin
electrical wires, to lodge in the skin of the subject.” Meyers,
713 F.3d at 728 n.3. The taser delivers a five-second cycle of
electricity designed to override the central nervous system,
disabling the subject. Estate of Armstrong, 810 F.3d at 897 n.3;
Meyers, 713 F.3d at 728 n.3.


                                   4
       Following these events, other officers arrived on the scene

and Yates was placed into handcuffs. EMS also arrived and provided

medical care to Patricia Yates.                 The officers searched Yates’

vehicle.     Yates was charged with an excessive noise violation, no

license in possession, and disorderly conduct, all of which were

nol prossed.

                                        II.

       On July 21, 2011, Yates filed this action in state court,

alleging     multiple    state       claims     and    federal    claims   against

Defendants     Terry,    the    City    of     North    Charleston,    the     North

Charleston Police Department, Chief Jon R. Zumalt, and unnamed

John Does.     The suit was removed to federal court and was stayed

while Yates was deployed to Germany and Kosovo.                  On May 30, 2014,

Defendants moved for summary judgment.                The district court granted

the motion in part, dismissing Chief Jon R. Zumalt, the North

Charleston Police Department, Terry in his official capacity, the

John   Doe   Defendants,       and    various    federal    and    state   claims.

However, the court denied the motion with respect to the excessive

force claim against Terry in his individual capacity and various

state claims against the City of North Charleston.                     Defendants

subsequently     filed    a    motion    for     reconsideration,      which    the

district court granted in part and denied in part, dismissing the

City of North Charleston from the lawsuit.                On April 28, 2015, the

parties filed a stipulation of dismissal as to all claims except


                                         5
for the 42 U.S.C. § 1983 claim for excessive force against Terry

in his individual capacity.        This appeal followed.

                                    III.

                                      A.

     As an initial matter, though not raised by either party, we

must address whether we have jurisdiction over this interlocutory

appeal.    Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541

(1986) (“[E]very federal appellate court has a special obligation

to   ‘satisfy    itself . . . of      its       own     jurisdiction . . . .’”

(quoting    Mitchell   v.   Maurer,       293    U.S.     237,   244    (1934))).

Generally, a district court’s order denying summary judgment based

on   qualified   immunity    is    immediately          appealable     under   the

collateral order doctrine.        See Mitchell v. Forsyth, 472 U.S. 511,

528–30 (1985).    However, when a district court denies a claim of

qualified immunity based on the insufficiency of the facts then

that determination is not immediately appealable. 2              See Johnson v.

Jones, 515 U.S. 304, 319-20 (1995); Winfield v. Bass, 106 F.3d

525, 529 (4th Cir. 1997).         Our jurisdiction over such an appeal

extends only to a denial of qualified immunity “to the extent that

it turns on an issue of law.”         Iko v. Shreve, 535 F.3d 225, 234


     2 Where “a dispute of material fact precludes a conclusive
ruling on qualified immunity at the summary judgment stage, the
district court should submit factual questions to the jury and
reserve for itself the legal question of whether the defendant is
entitled to qualified immunity on the facts found by the jury.”
Willingham v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005).


                                      6
(4th Cir. 2008) (quoting Mitchell, 472 U.S. at 530).            Because in

this case the district court determined at least one of the taser

applications to which Yates was subjected required further factual

development, we must examine whether we have jurisdiction over

Yates’ excessive force claim under 42 U.S.C. § 1983.

     During the February 26, 2015 hearing on Terry’s motion for

summary judgment, the district court explained that Terry was not

entitled to qualified immunity with respect to the first two taser

applications.    See J.A. at 557-58 (“The first two occasions, it

seems to me, are clear that qualified immunity does not apply.             I

think   that    they     constituted      unreasonable     force    and     a

constitutional violation, and I think that it was well known that

that was a violation.”).       The court then proceeded to address the

third taser application, stating:

     The third one is a little more problematic.       And I
     frankly feel that it’s going to depend largely upon a
     greater focus on the facts of the case than we now can
     make. . . . But I do think that the third taser shot
     needs closer scrutiny. And timing is such an important
     factor in that case. When did the officer speak to the
     [plaintiff][?] . . . [W]hen did the plaintiff start to
     grab the cell phone out of his waistband and throw it to
     his brother? The facts are just not developed to the
     extent that I can make a decision there.

Id. at 558.     The court held that “as to all three uses of the

taser, . . . qualified immunity does not apply, and that the

defendant   Terry   is   not   entitled   to   summary   judgment   on   that

constitutional claim.”         Id.   The court then entered an order



                                     7
denying Terry’s motion for summary judgment on his § 1983 claim,

stating that “[t]his Order hereby memorializes that which was set

forth on the record [at the February 26 hearing].”                   Id. at 565.

Further, in an order on a motion for reconsideration filed by

Terry, the district court stated that it denied Terry’s motion for

summary judgment on his § 1983 claim, “concluding that the facts

were not sufficiently developed to support the granting of summary

judgment.”     Id. at 569.     Later in the same order, the court stated

that it “carefully conducted a thorough analysis pursuant to

Saucier and determined that Officer Terry’s conduct violated a

constitutional right which was ‘clearly established’ at the time

of the violation.”        Id. at 571 (quoting Saucier v. Katz, 533 U.S.

194, 201 (2001)).

      Though    the     district    court      used   conflicting    language     in

explaining its reasoning for holding that qualified immunity did

not apply in this case, it is clear that the court did apply the

Saucier analysis to the first two deployments of the taser and

concluded      “that    they   constituted        unreasonable      force   and    a

constitutional violation” which was well established.                 Id. at 557-

58.    The     court,    however,    did       conclude   that   further    factual

development was needed before it could determine whether qualified

immunity applied to the third taser deployment. The jurisdictional

issue arises partly due to the court’s decision to evaluate each

use of the taser independently.                Yates has raised one excessive


                                           8
force      claim,   and   we   have   cautioned   courts    against   using   “a

segmented view of the sequence of events” where “each distinct act

of force becomes reasonable given what [the officer] knew at each

point in th[e] progression.”           Rowland v. Perry, 41 F.3d 167, 173

(4th Cir. 1994).          The better approach in a case such as the one

before us is to view the reasonableness of the force “in full

context, with an eye toward the proportionality of the force” in

light of the totality of the circumstances.           Id.    We conclude that

we have jurisdiction to review the district court’s denial of

Terry’s motion for summary judgment on Yates’ excessive force

claim. 3

                                        B.

        A district court’s denial of qualified immunity on summary

judgment is reviewed de novo, applying the same legal standards as



     3 In addition, Terry’s arguments on appeal relate to legal
issues, not factual ones.    See Iko, 535 F.3d at 235 (examining
parties’ appellate arguments to determine scope of jurisdiction to
review district court’s denial of qualified immunity at summary
judgment). In his briefing, Terry asserts that he is entitled to
qualified immunity even under Yates’ version of the events. Thus,
in evaluating Terry’s appeal we are not required to “reweigh the
evidence or resolve any disputed material factual issues.” Danser
v. Stansberry, 772 F.3d 340, 345 (4th Cir. 2014); see Plumhoff,
134 S. Ct. at 2019 (explaining that questions of whether specific
conduct constitutes excessive force in violation of the Fourth
Amendment and clearly established law are “legal issues”).
Moreover, at oral argument, counsel for Terry represented that the
record was fully developed to allow a determination on the merits
and that the third use of the taser would go to damages and not
liability, assuming that Terry’s initial use of his taser was
deemed excessive.


                                         9
the   district    court   did   on   summary    judgment.    See   Danser   v.

Stansberry, 772 F.3d 340, 345 (4th Cir. 2014).              Summary judgment

is appropriate when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).      The role of the court is not “to weigh the

evidence and determine the truth of the matter” but rather “to

determine whether there is a genuine issue for trial.”              Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).              In reviewing

the district court’s denial of summary judgment based on qualified

immunity, “we accept as true the facts that the district court

concluded may be reasonably inferred from the record when viewed

in the light most favorable to the plaintiff.”          Waterman, 393 F.3d

at 473.   “To the extent that the district court has not fully set

forth the facts on which its decision is based, we assume the facts

that may reasonably be inferred from the record when viewed in the

light most favorable to the plaintiff.” Id. “[T]his usually means

adopting . . . the plaintiff’s version of the facts.”               Iko, 535

F.3d at 230 (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)).

                                      IV.

                                       A.

      Qualified    immunity     “shields       government   officials   from

liability for civil damages, provided that their conduct does not

violate clearly established statutory or constitutional rights

within the knowledge of a reasonable person.”           Meyers v. Baltimore


                                       10
Cty.,    713   F.3d    723,    731    (4th    Cir.    2013)      (citing   Harlow   v.

Fitzgerald, 457 U.S. 800, 818 (1982)).                This protection “balances

two     important     interests—the      need    to       hold    public   officials

accountable when they exercise power irresponsibly and the need to

shield officials from harassment, distraction, and liability when

they perform their duties reasonably.”                 Pearson v. Callahan, 555

U.S. 223, 231 (2009).

      To determine whether an officer is entitled to qualified

immunity, courts engage in a two-step inquiry set forth by the

Supreme Court in Saucier.            The first step is to determine whether

the facts, taken in the light most favorable to the non-movant,

establish      that   the     officer   violated      a    constitutional     right.

Saucier, 533 U.S. at 201.             At the second step, courts determine

whether that right was clearly established.                   Id.   In this appeal,

Terry challenges the district court’s conclusion on both steps of

the qualified immunity inquiry.               We exercise our discretion to

conduct the two-step inquiry in the order originally provided by

the Supreme Court in Saucier.                 See Pearson, 555 U.S. at 236

(modifying the Saucier approach such that lower courts may use

their discretion to decide the sequence in which to conduct the

two steps of qualified immunity analysis).                 Therefore, our initial

inquiry is whether the facts establish a constitutional violation.




                                         11
                                           B.

     The     Fourth      Amendment     bars      police    officers   from     using

excessive force to effectuate a seizure.                  Jones v. Buchanan, 325

F.3d 520, 527 (4th Cir. 2003); see Graham v. Connor, 490 U.S. 386,

395 (1989).      Courts evaluate a claim of excessive force based on

an “objective reasonableness” standard.               Graham, 490 U.S. at 399.

The subjective intent or motivation of an officer is irrelevant at

this step.       Id. at 397.         Courts are to carefully balance “the

nature and quality of the intrusion on the individual’s Fourth

Amendment     interests      against       the    countervailing      governmental

interests at stake.”         Jones, 325 F.3d at 527 (quoting Graham, 490

U.S. at 396).      In doing so, we focus on the facts and circumstances

of each case, taking into account “the severity of the crime at

issue, whether the suspect poses an immediate threat to the safety

of the officers or others, and whether he is actively resisting

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

at 396.     Our inquiry into the reasonableness of the force also

requires    us    to     “consider   the    facts    at   the   moment   that   the

challenged       force     was   employed”       “with     an   eye   toward    the

proportionality of the force in light of all the circumstances.”

Smith v. Ray, 781 F.3d 95, 101 (4th Cir. 2015). “Artificial

divisions in the sequence of events do not aid a court’s evaluation

of objective reasonableness.”           Id. (quoting Waterman, 393 F.3d at

481).   Ultimately, we examine the totality of the circumstances to


                                           12
determine whether the force used was objectively reasonable.                 See

id.

      Viewing the facts in the light most favorable to Yates, we

conclude that the factors enunciated in Graham weigh heavily in

Yates’ favor.      In reaching this conclusion, we find that the first

Graham factor, the severity of the crime at issue, strongly favors

Yates.      While we accept Yates’ position that he committed no

traffic violations before being stopped by Terry, even if he had

committed the violations alleged by Terry, it is undisputed that

these      alleged     violations     are      nonviolent,     minor    traffic

infractions. 4     In addition, the driving without a license offense

that was the basis for Terry initially detaining Yates constitutes

only a misdemeanor under South Carolina law. 5                When the offense

committed is a minor one, “we have found that the first Graham

factor weigh[s] in plaintiff’s favor.”             Jones, 325 F.3d at 528;

see   Bryan   v.     MacPherson,    630   F.3d   805,   828   (9th   Cir.   2010)

(“Traffic violations generally will not support the use of a

significant level of force.”).




      4According to Terry, Yates appeared to be speeding, though
he used no speed detection device, and was playing loud music in
violation of a noise ordinance.    Further, Terry claims that he
observed Yates change lanes without a signal light, and cross the
double line before he decided to conduct the traffic stop. Yates
denies these allegations.
      5   See S.C. Code Ann. §§ 56-1-190, 56-1-500 (2016).



                                          13
       Regarding the second Graham factor, whether Yates posed an

immediate threat to the safety of the police or others, we also

conclude that this factor favors Yates.                    The evidence shows that

Yates, who was unarmed, complied with Terry’s orders to place his

hands on the car before Terry tased him for turning his head.

After this taser application, Yates fell to the ground where he

remained when Terry tased him a second time for no apparent reason. 6

Although Yates reached for his cell phone before being tased a

third time, Yates’ brother testified that “[t]he officer let

[Yates] slide me the phone” and “knew [Yates] was giving me the

phone to call [Yates’] commander because he let him do it.” 7                       J.A.

480.        This is not a case where the initial use of force was

justifiable        because    the     suspect    had   a   weapon   or     was   acting

erratically, and the continued use of such force was unlawful

because the threat was eliminated.               See, e.g., Meyers, 713 F.3d at

733.        In this case, viewing the evidence in the light most

favorable to Yates, the evidence does not support an inference

that       Yates   was   a   danger    to   Terry   at     any   time   during    their

encounter.


       6
       According to Terry, he tased                    Yates     because    Yates    was
attempting to get off the ground.

       7
       It is unclear from the record whether the district court
considered this testimony from Yates’ brother. When viewed in the
light most favorable to Yates, such testimony would have likely
resolved the district court’s concern that further factual
development was needed on the third deployment of the taser.


                                            14
       The third and final Graham factor, whether Yates was actively

resisting arrest, also favors Yates.               According to Yates, his

mother, brother, and unrelated eye witnesses to the incident, Yates

was not attempting to flee or resist Terry’s efforts to detain

him.   Further, viewing the evidence in the light most favorable to

Yates, he never attempted to get up after he fell to the ground

following the first taser application as asserted by Terry.              Nor

did Terry warn Yates that he would be tased or that he could not

move any part of his body.         Indeed, Yates asserts that Terry never

gave “any commands.”     J.A. 24; see Casey v. City of Fed. Heights,

509 F.3d 1278, 1285 (10th Cir. 2007) (explaining that a reasonable

jury   could   find   that   the    officer    committed   a   constitutional

violation when the officer deployed her taser immediately upon

arrival and without warning).

       Our analysis of the Graham factors when measured against the

level of force used by Terry against Yates leads us to conclude

that such force was not objectively reasonable in light of the

totality of the circumstances in this case.           Terry was ordered out

of his car and subsequently tased three times over not having his

driver’s license.     We have explained that “[d]eploying a taser is

a serious use of force,” that is designed to “inflict[] a painful

and frightening blow.”       Estate of Armstrong v. Vill. of Pinehurst,

810 F.3d 892, 902 (4th Cir. 2016) (quoting Orem v. Rephann, 523

F.3d 442, 448 (4th Cir. 2008)).             For these reasons, it “may only


                                       15
be deployed when a police officer is confronted with an exigency

that creates an immediate safety risk and that is reasonably likely

to be cured by using the taser.”      Id. at 909.   As we held in Estate

of Armstrong, “[t]he subject of a seizure does not create such a

risk simply because he is doing something that can be characterized

as   resistance-even   when   that    resistance    includes   physically

preventing an officer’s manipulations of his body.”             Id.   The

objective facts, when viewed in the light most favorable to Yates,

as we must do at this point in the proceedings, show that he was

neither a dangerous felon, a flight risk, nor an immediate threat

to Terry or anyone else.      Yates has thus established that Terry’s

use of his taser constituted excessive force in violation of Yates’

Fourth Amendment rights. 8


      8Terry’s reliance on our unpublished decision in Gray v.
Board of County Commissioners of Frederick County, 551 F. App’x
666 (4th Cir. 2014), is misplaced for several reasons. Contrary
to Terry’s argument, the procedural posture and facts of that case
are remarkably different from this case. First, at the summary
judgment stage, the district court in that case, in viewing the
evidence in the light most favorable to the plaintiffs, denied the
officer’s motion on the excessive force claim and that claim
proceeded to trial. See id. at 671 & n.5; Gray v. Torres, No. WDQ–
08–1380, 2009 WL 2169044, at *4 (D. Md. July 17, 2009). Later,
the jury decided that the facts did not establish a constitutional
violation by the officer’s use of his taser. Gray, 551 F. App’x
at 671. Perhaps the most important distinction, however, was that
the evidence before the jury was significantly different from the
evidence now before us in this case. The officer there responded,
unaccompanied, to a report that people were in the street fighting.
Id. at 669. When the officer arrived on the scene, the decedent
used profane language and refused to comply with the officer’s
orders to get down on the ground. Id. at 670. The decedent placed
his hands inside his pockets in front of his waistband, and the


                                     16
                                   C.

     Having   concluded   that   Yates’   constitutional   rights   were

violated, we must determine whether those rights were clearly

established at the time of Terry’s conduct. “A clearly established

right is one that is ‘sufficiently clear that every reasonable

official would have understood that what he [wa]s doing violates

that right.’”   Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per

curiam) (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)).

Ordinarily, to answer this inquiry, we “need not look beyond the

decisions of the Supreme Court, this court of appeals, and the

highest court of the state in which the case arose” to determine

whether a reasonable officer would know that his conduct was

unlawful in the situation he confronted.        Wilson v. Kittoe, 337

F.3d 392, 402-03 (4th Cir. 2003) (quoting Edwards v. City of

Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999)).             An official

violates a “clearly established” constitutional right when, “‘in

the light of preexisting law[,] the unlawfulness’ of the actions



officer observed a bulge where his hands were located.         Id.
However, the officer did not fire his taser immediately. See id.
Rather, the officer repeatedly warned the decedent to let him see
his hands, but the decedent refused to comply. Id. After these
repeated warnings, the officer deployed his taser. Id. When the
decedent was on the ground, the officer again ordered the decedent
to show his hands, which were beneath his body at that point, but
the decedent did not comply. Id. The officer then tased him a
second time, not knowing that the decedent needed medical
attention. Id. The decedent died. Id. On appeal, we affirmed
the district court’s judgment based on the jury verdict that was
in favor of the officer. Id. at 677.


                                   17
is apparent.”      Iko, 535 F.3d at 237-38 (alteration in original)

(quoting    Anderson    v.     Creighton,       483   U.S.   635,    640   (1987)).

However, a right need not be “recognized by a court in a specific

context before such right may be held ‘clearly established’ for

purposes of qualified immunity.”                Meyers, 713 F.3d at 734; see

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (explaining that

“existing    precedent       must        have    placed      the     statutory    or

constitutional question beyond debate”).

     In this case, it was clearly established in 2008 that a police

officer    was   not   entitled     to    use    unnecessary,       gratuitous,   or

disproportionate       force     by      repeatedly       tasing     a   nonviolent

misdemeanant who presented no threat to the safety of the officer

or the public and who was compliant and not actively resisting

arrest or fleeing.      See Meyers, 713 F.3d at 734-35; Jones 325 F.3d

at 532-34; Bailey v. Kennedy, 349 F.3d 731, 745 (4th Cir. 2003);

Rowland, 41 F.3d at 174; see also Parker v. Gerrish, 547 F.3d 1,

9-11 (1st Cir. 2008); Casey, 509 F.3d at 1282, 1284-86.                    Although

our decisions in Meyers, Bailey, and Jones dealt with individuals

who were secured when they were subjected to excessive force, our

precedent nonetheless provided Terry with fair notice that the

force he used against Yates under the facts of this case was

unconstitutionally excessive.

     In Meyers, we held that an officer’s first three uses of his

taser did not amount to excessive force because the suspect was


                                          18
actively resisting arrest and posed a threat to the officer’s

safety.     713 F.3d at 733.     After the first three taser uses, the

suspect fell to the ground, was no longer armed, and was secured

by several officers who sat on his back.        Id.   However, the suspect

was then subjected to seven additional taser applications.                Id.

We found the seven additional deployments of the taser to be

unnecessary, gratuitous, and disproportionate.            Id. at 735.     In

reaching    our   holding   in   Meyers,   we   relied   primarily   on   our

decisions in Bailey and Jones, both of which were decided in 2003.

In Bailey and Jones, we denied qualified immunity to officers who

used excessive force against individuals who had not committed any

crimes, were secured in handcuffs, and posed no threat to the

officers or others.     Bailey, 349 F.3d at 745; Jones, 325 F.3d at

534.   Even in a case that we decided in 1994, where an individual

committed a minor crime, and there was some evidence of resistance,

we denied qualified immunity to an officer who “used a wrestling

maneuver, throwing his weight against [the suspect’s] right leg

and wrenching the knee until it cracked.”             Rowland, 41 F.3d at

172, 174.    In denying the officer immunity, we explained that the

suspect was neither armed nor a danger to the officer or others.

Id. at 174.

       Even though Yates was not handcuffed, our precedent makes

clear that a nonviolent misdemeanant who is compliant, is not

actively resisting arrest, and poses no threat to the safety of


                                     19
the officer or others should not be subjected to “unnecessary,

gratuitous, and disproportionate force.”              Meyers, 713 F.3d at 735.

Viewing    the   facts    in    the    light   most   favorable      to   Yates,      no

reasonable officer would have believed that Terry’s use of the

taser was justifiable at all and certainly not on three occasions.

We reject Terry’s argument that the unlawfulness of his conduct

was not clearly established because he was faced with a dual-sided

threat.      Drawing reasonable inferences in Yates’ favor, there was

no threat to safety, dual-sided or otherwise.                  Rather, there was

a commotion attributable to Terry’s excessive and unjustifiable

use of force, which unnecessarily escalated tension during what

can at best be described as a routine traffic stop.                       See Smith,

781 F.3d at 103 (“Not only did [the officer’s] violent response

subject [the arrestee] to an obvious risk of immediate injury, it

also created the very real possibility that . . . the attack would

continue to meet with frightened resistance, leading to an even

further      escalation    of    the    violence.”);     id.    at    104      (“[O]ur

determination . . . in Rowland . . . was based on the simple fact

that the officer took a situation where there obviously was no

need   for    the   use   of    any    significant    force    and   yet       took   an

unreasonably aggressive tack that quickly escalated it to a violent

exchange     when   the   suspect       instinctively    attempted        to    defend

himself.”).




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                                V.

     For the foregoing reasons, we conclude that based on the

totality of the circumstances and viewing the evidence in the light

most favorable to the non-moving party, Terry is not entitled to

qualified immunity as a matter of law.    We therefore affirm the

district court’s denial of Terry’s motion for summary judgment

based on qualified immunity.


                                                          AFFIRMED




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