Brian Yates v. Christopher Terry

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:11-cv-02289-CWH. [999785596]. [15-1555]

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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.,

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Charleston, South Carolina, for Appellee.
ON BRIEF: Gordon H.
Garrett, GARRETT LAW OFFICES, North Charleston, South Carolina,
for Appellee.

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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.

3

Yates responded that he

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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.
on the car.

Terry ordered Yates to place his hands

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.
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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.
vehicle.

The officers searched Yates’

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
Defendants

multiple
Terry,

state
the

claims

City

of

and

federal

North

claims

Charleston,

against

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.
Defendants moved for summary judgment.

On May 30, 2014,

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

which

filed

a

motion

for

reconsideration,

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

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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

(quoting

itself . . . of

Mitchell

v.

its

Maurer,

293

own
U.S.

jurisdiction . . . .’”
237,

244

(1934))).

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

qualified

immunity

is

collateral order doctrine.
528–30 (1985).

immediately

appealable

under

the

See Mitchell v. Forsyth, 472 U.S. 511,

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).
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(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

a

that

they

constituted

unreasonable

force

and

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

constitutional claim.”

entitled
Id.

to

summary

judgment

on

that

The court then entered an order

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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

constitutional violation” which was well established.
58.

The

court,

however,

did

conclude

that

and

a

Id. at 557-

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

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claim,

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and

we

have

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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.”
(4th Cir. 1994).

Rowland v. Perry, 41 F.3d 167, 173

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.

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court

did

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summary

judgment.

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

See

Danser

v.

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

Anderson

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.”
at 473.

Waterman, 393 F.3d

“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.”

10

Meyers v. Baltimore

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Cty.,

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713

F.3d

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723,

731

(4th

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Cir.

Fitzgerald, 457 U.S. 800, 818 (1982)).
two

important

interests—the

need

2013)

(citing

Harlow

v.

This protection “balances

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

Saucier, 533 U.S. at 201.

violated

a

constitutional

right.

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.

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B.
The

Fourth

Amendment

bars

police

excessive force to effectuate a seizure.

officers

from

using

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

interests at stake.”
U.S. at 396).

against

the

countervailing

governmental

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

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

challenged

to
force

“consider
was

the

facts

employed”

at

“with

the

moment

an

eye

that

toward

the
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.”
481).

Id. (quoting Waterman, 393 F.3d at

Ultimately, we examine the totality of the circumstances to

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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

infractions. 4

violations

are

nonviolent,

minor

traffic

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.”
see

Bryan

v.

MacPherson,

630

F.3d

Jones, 325 F.3d at 528;

805,

828

(9th

Cir.

2010)

(“Traffic violations generally will not support the use of a
significant level of force.”).

4

According 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).

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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
480.

J.A.

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.
733.

See, e.g., Meyers, 713 F.3d at

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
attempting to get off the ground.
7

Yates

because

Yates

was

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.
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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.
gave “any commands.”

Indeed, Yates asserts that Terry never

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

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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

preventing an officer’s manipulations of his body.”

physically
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

8

Terry’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
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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.
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is apparent.”
(quoting

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

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

disproportionate

entitled
force

to

by

use

unnecessary,

repeatedly

tasing

gratuitous,
a

or

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

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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.
reaching

our

holding

in

Meyers,

we

relied

Id. at 735.
primarily

on

In
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.
534.

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

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.”
172, 174.

Rowland, 41 F.3d at

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

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the officer or others should not be subjected to “unnecessary,
gratuitous, and disproportionate force.”
Viewing

the

facts

in

the

light

most

Meyers, 713 F.3d at 735.
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

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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