David Getzen v. J. Long

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID GETZEN,
Plaintiff-Appellee,
v.
J. LONG,
Defendant-Appellant,
and
COUNTY OF YAVAPAI; STATE OF
ARIZONA; YAVAPAI COUNTY
SHERIFF'S OFFICE; SHELA SULLIVAN
POLK, Yavapai County Attorney's Office;
YAVAPAI COUNTY SUPERIOR COURT;
STEPHENCE A. WILLISON, Yavapai
County Public Defenders Office; YAVAPAI
COUNTY JAIL; JAMES STEWARD,
Yavapai County Jail, mental health, PH, Dr.,
MD; WILLIAM LANDRY, Verde Valley
Justice Court; ATTORNEY GENERAL FOR
THE STATE OF ARIZONA; CHARLES L.
RYAN, named as Charle Ryan, Director of
ADOC; ROBERT BURDINE, Director of
Nursing; RICHARD PRATT, Director of
Health ADOC; ROBERTSON, Dr., Corizon
medical staff; DE GUZMAN, Dr.; AQUIAO,
Sr adon, RN; DAVIS, named as U. Davis,
No. 21-16437
D.C. No.
3:18-cv-08093-SRB-DMF
MEMORANDUM*
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JAN 6 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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assist RN - director; DOES, Arizona State
Governor; Yavapai County Sheriff; Yavapai
County Jail Supervisor, Booking Does 1-3;
Director of Nursing, Medical Supervisor
Does 1-3; Supervisor for Solitary
Confinement Does 1-3; John Does 1-4;
Yavapai County Jail, finger officer, jail
officers, jail officer supervisor, booking unit
of the jail; CEO John Doe, Corizon Medical
Inc.,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted August 11, 2022
Seattle, Washington
Before: CHRISTEN, LEE, and FORREST, Circuit Judges.
Defendant Jeff Long, a former Yavapai County Sheriff’s Deputy, appeals the
district court’s denial of his motion for summary judgment against Plaintiff David
Getzen’s 42 U.S.C. § 1983 excessive force claim. We have jurisdiction under 28
U.S.C. § 1291 and may hear Long’s interlocutory appeal “to decide whether, taking
the facts in the light most favorable to [Getzen], [Long is] entitled to qualified
immunity.” Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 945 (9th Cir.
2017). We review the denial of summary judgment de novo, Mattos v. Agarano, 661
F.3d 433, 439 (9th Cir. 2011) (en banc), and we affirm.
In assessing whether a defendant is entitled to qualified immunity, we ask two

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questions: (1) “whether the facts taken in the light most favorable to the plaintiff
show that the officer’s conduct violated a constitutional right,” and (2) “whether the
right in question was clearly established at the time of the officer’s actions, such that
any reasonably well-trained officer would have known that his conduct was
unlawful.” Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020).
1. Excessive Force. Although non-lethal, deploying pepper spray “present[s]
a significant intrusion upon an individual’s liberty interests.” Young v. County of Los
Angeles, 655 F.3d 1156, 1161 (9th Cir. 2011). Likewise, using a taser in dart mode
is “an intermediate, significant level of force,” Bryan v. MacPherson, 630 F.3d 805,
826 (9th Cir. 2010), and tasing someone in drive-stun mode causes “extreme pain”
that can constitute “constitutionally excessive” force when employed repeatedly on
someone who is merely passively resistant, Mattos, 661 F.3d at 446. We consider
these means of force to be “non-trivial.” Gravelet-Blondin v. Shelton, 728 F.3d 1086,
1093–94 (9th Cir. 2013).
Taking the facts in the light most favorable to Getzen, a reasonable jury could
conclude that Long’s use of force was “greater than [was] reasonable under the
circumstances.” Espinosa v. City & County of San Francisco, 598 F.3d 528, 537 (9th
Cir. 2010) (quoting Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002)); see also
Rice v. Morehouse, 989 F.3d 1112, 1121 (9th Cir. 2021). Although the deputies were
responding to a domestic violence call, it is undisputed that Getzen was never

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aggressive with the deputies, never attempted to flee, and did not say anything to
indicate that he was a threat. The facts demonstrate that the deputies could have
reasonably believed that they had a legitimate interest in removing Getzen from the
premises and that Getzen was a threat when they first found him on the bathroom
floor with his hands behind him. But Long continued using non-trivial force after it
became clear that Getzen was not holding a weapon or otherwise threatening the
officers. Specifically, the facts and reasonable inferences derived therefrom strongly
suggest that Getzen’s hands were no longer obscured when Long pepper sprayed
Getzen the second time. Therefore, without addressing the first pepper spray
deployment and the two prior tasings, we conclude that, at a minimum, a reasonable
jury could find that the second pepper spray deployment—occurring after Getzen
calmly asked the deputies to stop tasing him—was excessive in violation of the
Fourth Amendment. See Headwaters Forest Def. v. County of Humboldt, 276 F.3d
1125, 1130–31 (9th Cir. 2002) (finding use of pepper spray on passive subjects who
were sitting peacefully and did not threaten or harm officers was “plainly in excess
of the force necessary under the circumstances”).
2. Clearly Established Right. When Getzen was arrested, “[t]he right to be
free from the application of non-trivial force for engaging in mere passive
resistance” was clearly established. Gravelet-Blondin, 728 F.3d at 1093. It was also
established that tasers and pepper spray are “non-trivial” force, id. at 1093–94, and

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that peacefully refusing to comply with an officer’s command is passive, not active,
resistance, see Thomas v. Dillard, 818 F.3d 864, 890 (9th Cir. 2016) (plaintiff
resisted “passively and not actively” when he refused to permit a frisk, moved
backward to avoid the officer’s attempt to grab him, and did not comply with
commands to raise his hands and kneel (internal quotation marks omitted)).
For the entirety of the relevant events, Getzen was sitting or lying on the
bathroom floor. He did not make any aggressive movements or statements. His sole
means of resistance was not complying with the deputies’ initial commands to come
out of the house and then to show his hands once they located him in the bathroom.
Based on the facts presented, we conclude that any reasonable officer would know
that Getzen was not actively resisting when Long pepper sprayed him the second
time and, therefore, that this use of non-trivial force was unlawful.
AFFIRMED.

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