Troy Mattos; Jayzel Mattos v. No. 08-15567DARREN AGARANO

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 TROY MATTOS; JAYZEL MATTOS,
Plaintiffs-Appellees,
v.
No. 08-15567DARREN AGARANO; RYAN AIKALA;
STUART KUNIOKA; HALAYUDHA D.C. No.
MACKNIGHT, 07-CV-00220-DAE
Defendants-Appellants, OPINION
and
MAUI COUNTY,
Defendant. 
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted
May 15, 2009—Honolulu, Hawaii
Filed January 12, 2010
Before: Alex Kozinski, Chief Judge, Jay S. Bybee and
Consuelo M. Callahan, Circuit Judges.
Per Curiam Opinion
871

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COUNSEL
Brian T. Moto, Corporation Counsel for the County of Maui,
Laureen L. Martin (argued), Moana M. Lutey, Richard B.
Rost, Cheryl Tipton, Deputies Corporation Counsel, Wailuku,
Hawaii, for the defendants-appellants.
Eric A. Seitz (argued), Lawrence I. Kawasaki, Honolulu,
Hawaii, for the plaintiffs-appellees.
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OPINION
PER CURIAM:
Maui police officers Darren Agarano, Halayudha Mac-
Knight, Stuart Kunioka, and Ryan Aikala appeal the district
court’s order denying their motion for summary judgment on
the basis of qualified immunity in this § 1983 action. The dis-
trict court ruled that material questions of fact existed as to
whether the officers’ use of a Taser gun (“Taser”) against
plaintiff Jayzel Mattos was constitutionally reasonable and
summary judgment was therefore inappropriate. Because we
conclude that, even taking the facts in the light most favorable
to the plaintiffs, the defendant officers did not violate Jayzel’s
constitutional rights, we reverse the judgment of the district
court.
I. FACTS AND PROCEDURAL HISTORY
On August 23, 2006, sometime after 11 p.m., a domestic
disturbance broke out between Jayzel and Troy Mattos at their
home. During the fight, Jayzel asked her fourteen-year-old
daughter, Cheynice, to call the police. Cheynice told the dis-
patcher that Jayzel and Troy were engaged in a physical alter-
cation and that things were being thrown around. Officers
Agarano, MacKnight, Kunioka, and Aikala responded to the
911 call. When the officers arrived, they found Troy, a six-
foot-three-inch tall man weighing approximately 200 pounds,
sitting at the top of the stairs just outside the front door of a
second story residence with two bottles of beer lying nearby.
Based on the beer bottles and the smell of alcohol, Officer
Kunioka believed that Troy was intoxicated. When Kunioka
approached and asked Troy what had happened, Troy
responded that he and his wife had argued but that the argu-
ment had not gotten physical. Kunioka asked Troy to get Jay-
zel so that they could talk to her and make sure she was safe.
The parties differ in their accounts of what follows, but at
this stage of the litigation, we take the facts in the light most
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favorable to the plaintiffs. See Smith v. City of Hemet, 394
F.3d 689, 693 (9th Cir. 2005) (en banc).
Troy entered his home to get Jayzel, and Officer Agarano
stepped inside the doorway. When Troy returned with Jayzel,
Troy became upset that Agarano was in his house, and he
demanded that the officers leave, insisting that they had no
right to be in the house and yelling profanities at them. The
officers asked Jayzel to speak to them outside. Jayzel agreed
and asked her husband and the officers to calm down and not
wake her sleeping children. Aikala then entered the hallway
area to arrest Troy, who was still yelling at the officers. Jayzel
asked Aikala why her husband was being arrested and again
asked that the officers and her husband calm down, leave the
house, and not disturb her children.
At this point, Jayzel was cornered between the officers and
her husband—Officer Agarano was in front of her, Officer
Aikala was at her right, and her back was against her hus-
band’s chest. Aikala moved to apprehend Troy and bumped
against Jayzel. Feeling uncomfortable and exposed with
Aikala squarely in front of her, Jayzel raised her hands, palms
forward at her chest, to “keep [Aikala] from flushing his body
against [hers].” Jayzel agrees that both of her hands touched
Aikala’s chest, but asserts that she did not put her hands up
until Aikala was pressed up against her.
Aikala immediately stepped back and asked Jayzel if she
was touching an officer. Jayzel testified that she was scared
and again implored everyone to calm down and not wake her
children. At that moment, Jayzel felt a pinch on the back of
her right hand and then felt “an incredible burning and painful
feeling locking all of [her] joints,” she heard herself scream,
and felt herself fall to the floor. Aikala had tased Jayzel and
cycled it for five seconds.
Jayzel and Troy were taken into custody; both were
charged with harassment, while Troy was charged with resist-
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ing arrest and Jayzel with obstructing government operations.
A state court judge dismissed the charges against Jayzel, and
it appears that the State later dropped all criminal charges
against Troy.
Troy and Jayzel brought suit against the officers and others
under 42 U.S.C. § 1983 for violations of their Fourth, Fifth,
and Fourteenth Amendment rights based on the officers’ war-
rantless entry into their residence, Jayzel and Troy’s arrests,
and the officers’ use of the Taser on Jayzel. The district court
granted summary judgment in favor of the defendants on all
claims except an excessive force claim under the Fourth
Amendment based on the officers’ use of the Taser on Jayzel.
With respect to excessive force, the court ruled that there
were questions of fact material to deciding whether the use of
the Taser was constitutionally reasonable. The officers
brought this appeal.
II. ANALYSIS
It is well-settled that the party moving for summary judg-
ment has the initial burden of showing that there are no genu-
ine issues of material fact and that it is entitled to judgment
as a matter of law. See Anderson v. Liberty Lobby, 477 U.S.
242, 247-48 (1986). Once the moving party has met this ini-
tial burden, the nonmoving party has the subsequent burden
of presenting evidence to show that a genuine issue of fact
remains. The party opposing the motion for summary judg-
ment “may not rest upon the mere allegations or denials of
[her] pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial.” Id. at 248. If the party
opposing the motion “fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial” then summary judgment is proper. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
Once the officers moved for summary judgment as a matter
of law, presenting evidence that the use of a Taser was not
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excessive force under the Fourth Amendment and that a rea-
sonable officer would not have known that a Taser deploy-
ment in this situation would violate the Fourth Amendment,
the Mattoses could not defeat summary judgment by relying
on conclusory allegations in their pleading. They had the bur-
den to come forward with specific facts—such as the force
used in a deployment of a Taser or the injuries Jayzel suffered
—to show that the officers’ use of a Taser was indeed a viola-
tion of the Fourth Amendment. Despite the Mattoses failure
to offer additional evidence to defeat summary judgment, we
view the submitted evidence in the light most favorable to the
Mattoses in determining whether there are genuine issues of
material fact in their § 1983 claim. See Bingham v. City of
Manhattan Beach, 341 F.3d 939, 945 (9th Cir. 2003).
[1] In evaluating a § 1983 claim against an officer, we gen-
erally proceed in a two-part analysis. The “threshold ques-
tion” is “[t]aken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right?” Saucier v. Katz, 533
U.S. 194, 201 (2001) (abrogated in part on other grounds by
Pearson v. Callahan, 129 S.Ct. 808, 818 (2009)). If the Con-
stitution was not violated, that is the end of the inquiry. If
there was a violation, however, we proceed to the question of
qualified immunity. Officers are protected by qualified immu-
nity, which is “an immunity from suit rather than a mere
defense to liability,” Pearson 129 S.Ct. at 815. When an offi-
cer asserts immunity, the court dismisses the case unless the
officer knew that his conduct was “clearly unlawful,” that is,
unless the officer understood or should have understood that
his actions violated a clearly established right. Saucier, 533
U.S. at 202. Although we have flexibility in deciding which
part of the analysis to address first, we think it important in
this case to determine first whether a constitutional violation
occurred. See Pearson, 129 S.Ct. at 818 (holding that “while
the sequence set forth [in Saucier] is often appropriate, it
should no longer be regarded as mandatory”).
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A. Constitutional Violation
Although we find the question to be a close one, on this
record, we cannot conclude that the officers used excessive
force in violation of the Fourth Amendment.
[2] The Fourth Amendment guarantees “[t]he right of the
people to be secure in their persons . . . against unreasonable
searches and seizures” U.S. CONST. amend. IV. When a plain-
tiff claims that she was not “secure in [her] person” because
law enforcement officers used excessive and, therefore, “un-
reasonable” force in the course of an arrest, we balance “ ‘the
nature and quality of the intrusion on the individual’s Fourth
Amendment interests’ against ‘the countervailing government
interests at stake.’ ” Miller v. Clark County, 340 F.3d 959,
964 (9th Cir. 2003) (quoting Graham v. Connor, 490 U.S.
386, 396 (1989)). We have held that we conduct this inquiry
in a three-step analysis. “First, we assess the gravity of the
particular intrusion on Fourth Amendment interests by evalu-
ating the type and amount of force inflicted.” Id. Second, we
analyze “the importance of the government interests at stake
by evaluating: (1) the severity of the crime at issue, (2)
whether the suspect posed an immediate threat to the safety
of the officers or others, and (3) whether the suspect was
actively resisting arrest or attempting to evade arrest by
flight.” Id. At this stage of the analysis, we may also consider
other factors, such as “the availability of alternative methods
of capturing or subduing a suspect.” Smith, 394 F.3d at 701.
Finally, we weigh the gravity of the intrusion against the gov-
ernment’s interest to determine whether the force used was
constitutionally reasonable. Miller, 340 F.3d at 964.
1
We first evaluate the type and amount of force inflicted.
The problem here is that, even with the benefit of some brief-
ing and argument on the subject, it is difficult for us to opine
with confidence regarding either the quantum of force
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involved in a deployment of a Taser gun or the type of force
inflicted. The defendants paint a benign portrait of the Taser,
offering evidence that it has been used on over one million
human subjects and has proven extremely safe, as well as evi-
dence that the actual voltage applied to a subject’s body uses
less electricity than a single bulb on a string of Christmas tree
lights.1
[3] The plaintiffs, for their part, have not offered any evi-
dence about the kind of force or injury a Taser inflicts. Nor
have they provided evidence that would permit us to assess
the severity of any injuries Jayzel suffered from the Taser.
Jayzel described the experience as “[i]ncredibly painful,”
“last[ing] for what seemed like forever,” and analogized the
pain to child labor. But although she claims to have suffered
injuries as a result of the incident, the plaintiffs have not
offered any evidence of these injuries; Jayzel removed the
Taser’s prongs herself and then refused medical treatment at
the scene.
[4] On the other hand, the defendant’s expert conceded that
a Taser in the drive stun mode “induce[s] subject control
through pain compliance if the person responds to painful
stimulus,” and that it “stimulates nerves that control the motor
muscles which . . . result[s] in subject incapacitation.” On this
record then, we are left with evidence that the Taser, in gen-
eral, is more than a non-serious or trivial use of force but less
than deadly force. Unfortunately, there is a lot of room
between these end points. In this case, we know that the Taser
was sufficient force to drive Jayzel to her knees in seconds
and cause her to scream with pain. Although the record on
this point is not as developed as we could hope for, viewing
the evidence in the light most favorable to Jayzel, we have no
difficulty concluding that the Taser stun was a serious intru-
sion into the core of the interests protected by the Fourth
1This testimony, however, may advise that we be more careful with our
Christmas tree lights than describe the harmlessness of a Taser stun.
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Amendment: the right to be “secure in [our] persons.” U.S.
CONST. amend. IV.
2
[5] We next analyze the importance of the government
interest in using a Taser and weigh the gravity of the intrusion
against the government interest. Miller, 340 F.3d at 964. First,
we consider the severity of the crime. When Aikala
announced that Troy was under arrest, Jayzel was between the
officers and her husband. She did not move from her protec-
tive position, asking why Troy was under arrest and request-
ing that the officers proceed outside. Aikala reached for Troy
and made contact with Jayzel. When Aikala immediately
asked her if she was touching an officer, Jayzel did not
directly respond nor did she move from her position but
instead asked him to calm down and be quiet because her
children were sleeping. It was at this point that Aikala
deployed the Taser on Jayzel, and the other officers arrested
Troy. In the light most favorable to Jayzel, her actions in
obstructing the officers, although inappropriate, did not con-
stitute a serious crime. Her contact with Aikala appears to
have been incidental and due mainly to the cramped quarters
in which the Mattoses and the officers found themselves
rather than to any intention on Jayzel’s part to interfere with
the officers. Additionally, however, we must take into account
Troy’s actions. He was belligerent and appeared to be intoxi-
cated. As explained by the 911 call, Troy’s conduct that eve-
ning was a threat to Jayzel, and in his intoxicated condition,
Troy posed a threat to the officers as well. Thus, Jayzel her-
self may have posed little threat, but any interference she
caused only heightened the danger Troy represented. As the
district court found, Jayzel’s actions “exacerbated an already
tense, and rapidly escalating situation.” On balance then, Jay-
zel’s actions were not a serious crime, but as we discuss
below, carried the potential for a far more serious crime—
assault on an officer.
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The second factor we consider in evaluating the govern-
ment interest is the threat to the officers’ safety. We view the
officers’ safety as “the most important of the three Graham
factors.” Miller, 340 F.3d at 964. Here, the officers were cal-
led to respond to a fourteen-year-old girl’s 911 call reporting
domestic violence. We have observed that “[t]he volatility of
situations involving domestic violence” makes them particu-
larly dangerous. United States v. Martinez, 406 F.3d 1160,
1164 (9th Cir. 2005) “When officers respond to a domestic
abuse call, they understand that violence may be lurking and
explode with little warning. Indeed, more officers are killed
or injured on domestic violence calls than on any other type
of call.” Id. (internal citations and quotation marks omitted);
see also United States v. Black, 482 F.3d 1035, 1040 (9th Cir.
2007) (“Our circuit has recognized that the exigencies of
domestic abuse cases present dangers that . . . may override
considerations of privacy.”) (internal citations omitted). While
a drunken Troy screamed profanities at the police, Jayzel
repeatedly asked that the officers exit the house even though,
as the district court found, they had probable cause to enter
the residence. When the officers moved to arrest Troy, Jayzel
made contact with Aikala. Although Jayzel’s actions may
have been well-intentioned, or even innocent, they came pre-
cisely when the officers moved to arrest Troy. Aikala then
tased Jayzel, and the other officers arrested Troy.
[6] In assessing the danger the police confronted, we keep
in mind the Supreme Court’s guidance in Graham v. Connor,
490 U.S. 386 (1989):
The reasonableness of a particular use of force must
be judged from the perspective of a reasonable offi-
cer on the scene, rather than with the 20/20 vision of
hindsight. . . . [P]olice officers are often forced to
make split-second judgments—in circumstances that
are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situ-
ation.
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Id. at 396-97. Thus, we must take account of the circum-
stances as they were for the officers at the Mattoses’ residence
on that night. Given the dangerous nature of domestic vio-
lence situations, the close quarters in which the officers and
the Mattoses were contained, Troy’s intoxicated state, and the
contact made between Jayzel and Aikala, there was the risk
of immediate threat to the safety of the officers. This factor
weighs heavily in favor of the government.
[7] Third, we consider whether the “suspect was actively
resisting arrest or attempting to evade arrest by flight.” Miller,
340 F.3d at 964. Jayzel’s actions prevented the officers from
arresting Troy. She was in front of her husband and demanded
to know why he was being arrested. She made contact with
Aikala as he tried to reach across her to apprehend Troy. Her
actions prevented the officers from arresting Troy, and the
officers could use reasonable force to move her away from the
arrest. Although there may have been alternative methods of
forcefully moving Jayzel out of the way, officers are not
required to use the least amount of force necessary. Scott v.
Henrich, 39 F.3d 912, 915 (9th Cir. 1994) (“Requiring offi-
cers to find and choose the least intrusive alternative would
require them to exercise superhuman judgment. . . . Imposing
such a requirement . . . would . . . entangle the courts in end-
less second-guessing of police decisions made under stress
and subject to the exigencies of the moment.”). This factor
also weighs in the government’s favor. This combination of
the severity of the crime, the threat to the officers, and the
magnitude of the resistence tips decisively in the officers’
favor. This was potentially an explosive situation. With all of
the participants in close contact in a small room, there was
real danger that if Troy could not be subdued then someone—
including Jayzel—might be injured. In such circumstances,
the officers had an important interest in obtaining immediate
control.
3
[8] Finally, in weighing the gravity of the Fourth Amend-
ment intrusion against the government’s interest, we conclude
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that the force used against Jayzel was reasonable within the
meaning of the Fourth Amendment. Even though we find that
use of a Taser represents a serious intrusion on interests pro-
tected by the Fourth Amendment, we recognize that in
responding to a domestic violence call, the officers confronted
a dangerous and volatile situation. When an intoxicated Troy
began yelling profanities at the officers and demanding that
they leave, the officers felt the need to arrest him to finish
their investigation and diffuse the situation. Because Jayzel
interfered with Troy’s arrest and, in doing so, made contact
with Aikala, Aikala was justified in removing her from Troy’s
side. Although an alternative method of force may have been
advisable, the Fourth Amendment does not require an officer
to use the minimum amount of force necessary to move Jayzel
and arrest Troy. See, e.g., Bryan v. McPherson, ___ F.3d ___,
No. 08-55622, slip op. at 16752 n.15 (9th Cir. Dec. 28, 2009).
In this heated situation, Aikala’s deployment of a Taser did
not violate Jayzel’s constitutional rights.
B. Qualified Immunity
[9] Even if we thought that the officers used excessive
force, it would not have been clear to any reasonable officer
on August 23, 2006, that use of a Taser in the situation they
confronted was constitutionally impermissible. The doctrine
of qualified immunity shields the officers “from liability for
civil damages [unless their conduct violated] clearly estab-
lished statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). A right is “clearly established” if “ ‘it would
be clear to a reasonable officer that his conduct was unlawful
in the situation he confronted.’ ” Wilkins v. City of Oakland,
350 F.3d 949, 954 (9th Cir. 2003) (emphasis in original)
(quoting Saucier, 533 U.S. at 202). An officer will therefore
be entitled to qualified immunity even if he was mistaken in
his belief that his conduct was lawful, so long as that belief
was reasonable. Id. at 955.
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In determining whether a right is clearly established, we
begin our analysis by looking to binding precedent from our
circuit and from the Supreme Court. Boyd v. Benton County,
374 F.3d 773, 781 (9th Cir. 2004). In the absence of prece-
dent, we may also “look to whatever decisional law is avail-
able to ascertain whether the law is clearly established for
qualified immunity purposes, including decisions of state
courts, other circuits, and district courts.” Id. (internal quota-
tion marks omitted).
Before August 23, 2006, when the confrontation occurred,
neither our circuit nor the Supreme Court had decided an
excessive force case involving the use of a Taser; in fact, only
the Sixth, Tenth, and Eleventh Circuits even addressed such
cases. See Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir.
2004); Hinton v. City of Elwood, Kansas, 997 F.2d 774, 781-
82 (10th Cir. 1993); Russo v. City of Cincinnati, 953 F.2d
1036, 1044-45 (6th Cir. 1992). In all three cases, the courts
held that the use of a Taser was constitutionally permissible.
We note, however, that the Eleventh Circuit has recently
rejected qualified immunity for officers who used a Taser to
shock a man (who appeared mentally unstable) eight to
twelve times before making any attempt to arrest him. Oliver
v. Fiorino, ___ F.3d ___, No. 08-15081 (11th Cir. Oct. 26,
2009). The court found that although the initial use of the
Taser may have been justified, the officers’ repeated use of
the Taser was unreasonable and excessive under the Fourth
Amendment. Id. The court explained that a reasonable officer
would have recognized that his actions were a grossly dispro-
portionate response to the threat posed. Id. More recently, in
Bryan v. McPherson, ___ F.3d___, No. 08-55622 (9th Cir.
Dec. 28, 2009), we rejected qualified immunity for an officer
who used a Taser on a driver during a traffic stop for a seat-
belt infraction. The driver stepped out of the vehicle in an agi-
tated state, wearing nothing but his boxer shorts and tennis
shoes, yelling gibberish, and hitting his thighs, when the offi-
cer, who was standing twenty-five feet away from the driver,
deployed his Taser without warning. The driver fell face first
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into the ground, fracturing four teeth and suffering facial con-
tusions. We determined that even though the driver’s behavior
was bizarre, it posed no threat to the officer and did not indi-
cate that the driver was attempting to flee. We denied the offi-
cer qualified immunity, holding that his use of force was
excessive and unreasonable.
[10] Unlike Bryan or Oliver, this is simply not a case in
which the officers’ conduct was so “patently violative” of
Jayzel Mattos’s constitutional rights “that reasonable officials
would know without guidance from the courts that the action
was unconstitutional.” Mendoza v. Block, 27 F.3d 1357, 1361
(9th Cir. 1994) (internal quotation marks omitted). The offi-
cers used the Taser only once in a domestic violence situation
that could have quickly become much more dangerous to
everyone involved. Because claims of excessive force are
analyzed under a Fourth Amendment reasonableness standard
using the factors delineated by the Supreme Court in Graham
v. Connor, 490 U.S. 386, 396 (1996), nothing in our opinion
today prevents another panel from deciding, with the benefit
of a more complete and substantial evidentiary record than the
one we have in this case, that the use of a Taser constituted
excessive force. See Bryan, ___ F.3d___, No. 08-55622.
III. CONCLUSION
[11] The Mattoses failed to offer specific facts that would
establish the existence of an element essential to their case—
namely, that the force used was constitutionally unreasonable.
We hold that the use of a Taser gun under these circumstances
did not violate the Fourth Amendment.
REVERSED AND REMANDED.
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