In Sanderlin v. Dwyer, published September 4, 2024, the 9th Circuit affirmed the district court's denial of the defendant police officer's summary judgment motion. During a mass protest, the plaintiff stood in front of the defendant officer, holding a sign. The officer was equipped with a 40 mm launcher, capable of firing foam baton rounds. The officer yelled, "I'm going to hit you, dude. You better move!" The plaintiff failed to immediately comply. A few seconds later, the officer fired a foam baton at the plaintiff, striking him in the groin area. The officer's body cam showed the suspect staggering away from the impact, unable to stand or walk properly. He sustained severe injuries and required emergency surgery. The officer contended that he was tracking two subjects who looked like they would throw paint at officers, and that the plaintiff was deliberately blocking the subjects from view. The plaintiff denied this. The plaintiff alleged the officer used excessive force against him in violation of both the 1st and 4th Amendment. The officer moved for summary judgment on both prongs of qualified immunity. The district court ruled that under the plaintiff's version of the events, a jury could find that the officer violated the plaintiff's rights; and that the violations were clearly established.
The 9th Circuit court agreed. Regarding the 1st Amendment claim, it was clearly established at the time that police officers may not use their authority to retaliate against individuals for protected speech. If a factfinder determines the officer's actions were retaliatory, his actions would violate clearly-established law. Regarding the 4th Amendment claim, the court ruled that a reasonable factfinder could conclude the plaintiff was seized under the 4th Amendment, because the officer intentionally applied physical force and as a result the plaintiff's freedom of movement was restrained, even though he was able to walk away. That the officer did not subjectively intend to restrain the plaintiff is immaterial, since the focus is on whether the conduct objectively manifests an intent to restrain, rather than on the officer's subjective intent. There was a triable issue on whether the force used was excessive, and thus whether the use of force violated the 4th Amendment. On the second prong of qualified immunity, based on 9th Circuit law at the time of the incident, it was clearly established that firing projectiles at non-threatening individuals was objectively unreasonable. A Supreme Court decision issued after the incident took place limited the 9th Circuit's holding on that point, by holding intentional application of force is not sufficient to establish a seizure unless the force was intended to restrain. But just as the "clearly-established" analysis disregards legal developments after the incident that are unfavorable to the plaintiff, it disregards subsequent legal developments that are favorable to the defendant. The focus is on whether the law at the time of the incident gave the officer prior notice that the officer's conduct is unlawful.
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