Estate of Armstrong Ex Rel. Armstrong v. Village of Pinehurst

Affirmed by published opinion. Judge THACKER wrote the opinion, in which Judge KEENAN joined. Judge WILKINSON wrote a separate opinion concurring in part.

The Estate of Ronald H. Armstrong (“Appellant” when referring to the estate, or “Armstrong” when referring to the decedent) appeals an order granting summary judgment to the Village of Pinehurst, North Carolina, and Lieutenant Jerry McDonald, Sergeant Tina Sheppard, and Officer Arthur Gatling, Jr., of the Pinehurst Police Department (“Appellees”). The district court determined that qualified immunity bars Appellant’s claim that Appellees used excessive force when executing an involuntary commitment order, which required Armstrong’s immediate hospitalization.

On review, we hold that Appellees used unconstitutionally excessive force when seizing Armstrong, but we, nevertheless, agree with the district court that Appellees are entitled to qualified immunity. We, therefore, affirm the grant of summary judgment in Appellees’ favor on the grounds explained below.

I.

We review the district court’s grant of summary judgment de novo. See Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.2011) (en banc). We “determine de novo whether the facts ... establish the deprivation of an actual constitutional right,” Leverette v. Bell, 247 F.3d 160, 166 (4th Cir.2001), and “[w]e review de novo an award of summary judgment on the basis of qualified immunity,” Durham v. Horner, 690 F.3d 183, 188 (4th Cir.2012). “Summary judgment is appropriate only if taking the evidence and all reasonable inferences *896drawn therefrom in the light most favorable to the nonmoving party, ‘no material facts are disputed and the moving party is entitled to judgment as a matter of law.’ ” Henry, 652 F.3d at 531 (quoting Ausherman v. Bank of Am. Corp., 352 F.3d 896, 899 (4th Cir.2003)).

II.

A.

Ronald Armstrong suffered from bipolar disorder and paranoid schizophrenia. On April 23, 2011, he had been off his prescribed medication for five days and was poking holes through the skin on his leg “to let the air out.” J.A. 675.1 His sister, Jinia Armstrong Lopez (“Lopez”), worried by his behavior, convinced Armstrong to accompany her to Moore Regional Hospital (“Hospital”) in Pinehurst, North Carolina. He willingly went to the Hospital and checked in, but “[djuring the course of the evaluation he apparently became frightened and eloped from the [emergency department].” Id. Based on that flight and Lopez’s report about his odd behavior over the previous week, the examining doctor judged Armstrong a danger to himself and issued involuntary commitment papers to compel his return. Armstrong’s doctor could have, but did not, designate him a danger to others, checking only the box that reads “[m]entally ill and dangerous to self’ on the commitment form. Id.

The Pinehurst police were called as soon as Armstrong left the Hospital, and three members of the department — all Appellees in this case — responded in short order. Officer Gatling appeared on the scene first, followed a minute or two later by Sergeant Sheppard. Lieutenant McDonald arrived about ten minutes after Sheppard. Armstrong had not traveled far when Gatling arrived. He was located near an intersection near the Hospital’s main entrance.

When the police arrived, Armstrong’s commitment order had not yet been finalized.2 Therefore, Gatling and Sheppard engaged Armstrong in conversation. By all accounts, the parties were calm and cooperative at this point in time.

Armstrong was acting strangely, however. When Officer Gatling first initiated conversation, Armstrong was wandering across an active roadway that intersects with the Hospital’s driveway. Gatling successfully convinced him to withdraw to the relative safety of the roadside, but Armstrong then proceeded to eat grass and dandelions, chew on a gauze-like substance, and put cigarettes out on his tongue while the police officers waited for the commitment order.

As soon as they learned that the commitment papers were complete, the three police officers surrounded and advanced toward Armstrong — who reacted by sitting down and wrapping himself around a four-by-four post that was supporting a nearby stop sign. The officers tried to pry Armstrong’s arms and legs off of the post, but he was wrapped too tightly and would not budge.

Immediately following finalization of the involuntary commitment order, in other words, Armstrong was seated on the *897ground, anchored to the base of a stop sign post, in defiance of the order. The three police officers at the scene were surrounding him, struggling to remove him from the post. Lopez was in the immediate vicinity as well, along with Jack Blankenship and Johnny Verbal, two Hospital security officers. So Armstrong was encircled by six people — three Pinehurst police officers tasked with returning him to the Hospital, two Hospital security guards tasked with returning him to the Hospital, and his sister, who was pleading with him to return to the Hospital.

Appellees did not prolong this stalemate. Nor did they attempt to engage in further conversation with Armstrong. Instead, just thirty seconds or so after the officers told Armstrong his commitment order was final, Lieutenant McDonald instructed Officer Gatling to prepare to tase Armstrong. Officer Gatling drew his taser, set it to “drive stun mode,”3 and announced that, if Armstrong did not let go of the post, he would be tased. That warning had no effect, so Gatling deployed the taser — five separate times over a period of approximately two minutes.4 Rather than have its desired effect, the tasing actually increased Armstrong’s resistance.

But shortly after the tasing ceased, Blankenship and Verbal jumped in to assist the three police officers trying to pull Armstrong off of his post. That group of five successfully removed Armstrong and laid him facedown on the ground.

During the struggle, Armstrong complained that he was being choked. While no witness saw the police apply any choke-holds, Lopez did see officers “pull[] his collar like they were choking him” during the struggle. J.A. 192.

With Armstrong separated from the post, Appellees restrained him. Lieutenant McDonald and Sergeant Sheppard pinned Armstrong down by placing a knee on his back and standing on his back, respectively, while handcuffs were applied. But even after being cuffed, Armstrong continued to kick at Sergeant Sheppard, so the police shackled his legs too.

The officers then stood up to collect themselves. They left Armstrong face-down in the grass with his hands cuffed behind his back and his legs shackled. At this point, he was no longer moving — at all. Lopez was the first to notice that her brother was unresponsive, so she asked the officers to check on him. Appellees did so immediately,5 but Armstrong’s condition had already become dire. When the officers flipped him over, his skin had *898turned a bluish color and he did not appear to be breathing.

Sergeant Sheppard and Lieutenant McDonald administered CPR, and Lieutenant McDonald radioed dispatch to send Emergency Medical Services (“EMS”). EMS responders transported Armstrong to the Hospital’s emergency department where resuscitation attempts continued but were unsuccessful. He was pronounced dead shortly after admission. According to the Pinehurst Police Department’s summary of communications during the incident, just six and one-half minutes elapsed between dispatch advising Appellees that Armstrong’s commitment papers were final and Appellees radioing for EMS.

B.

Based on the foregoing, Appellant filed a complaint in the Superior Court of Moore County, North Carolina, on April 16, 2013. Appellant sued each police officer involved in Armstrong’s seizure, pursuant to 42 U.S.C. § 1983, alleging that the officers used excessive force, in violation of Armstrong’s Fourth and Fourteenth Amendment rights, when seizing him.6 Appellees removed the case to the United States District Court for the Middle District of North Carolina on May 20, 2013.

The district court granted summary judgment to Appellees on January 27, 2015, reasoning, “[i]t is highly doubtful that the evidence establishes a constitutional violation at all, but assuming it does, the defendants are entitled to qualified immunity.” Estate of Ronald H. Armstrong v. Village of Pinehurst, No. 1:13—cv-407, slip op. at 4 (M.D.N.C. Jan. 27, 2015) (citation omitted). Appellant filed a timely notice of appeal on February 24, 2015.

III.

A.

“Qualified immunity protects officers who commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.2011) (en banc). A “qualified immunity analysis,” therefore, “typically involves two inquiries: (1) whether the plaintiff has established the violation of a constitutional right, and (2) whether that right was clearly established at the time of the alleged violation.” Raub v. Campbell, 785 F.3d 876, 881 (4th Cir.2015). The court “may address these two questions in ‘the order ... that will best facilitate the fair and efficient disposition of each case.’ ” Id. (alteration in original) (quoting Pearson v. Callahan, 555 U.S. 223, 242, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). Appellant’s case survives summary judgment, however, only if we answer both questions in the affirmative. See Pearson, 555 U.S. at 232, 129 S.Ct. 808.

In this case, we adhere to “the better approach to resolving cases in which the defense of qualified immunity is raised,” that is, we “determine first whether the plaintiff has alleged a deprivation of a constitutional right at all.” Pearson, 555 U.S. at 232, 129 S.Ct. 808 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). *899Though this sequence is “no longer ... regarded as mandatory,” it is “often beneficial,” and “is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.” Id. at 236, 129 S.Ct. 808. Because excessive force claims raise such questions, see Nancy Leong, Improving Rights, 100 Va. L.Rev. 377, 393 (2014) (“[EJxcessive force claims are litigated over 98% of the time in the civil context....”), we exercise our discretion to address the constitutional question presented by this appeal first.

B.

Our initial inquiry, then, is this: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Brosseau v. Haugen, 543 U.S. 194, 197, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). In this case, the answer is yes. Viewed in the light most favorable to Appellant, the record before us establishes that, when seizing Armstrong, Appellees used unreasonably excessive force in violation of the Fourth Amendment.

A “claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other ‘seizure’ of [a] person” is “properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); see also Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). “The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). But the Court has counseled that the test “requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Smith v. Ray, 781 F.3d 95, 101 (4th Cir.2015) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). There are, moreover, three factors the Court enumerated to guide this balancing. First, we look to “the severity of the crime at issue”; second, we examine the extent to which “the suspect poses an immediate threat to the safety of the officers or others”; and third, we consider “whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Id. (alteration supplied) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). “To properly consider the reasonableness of the force employed we must ‘view it in full context, with an eye toward the proportionality of the force in light of all the circumstances.’ ” Id. (quoting Waterman v. Batton, 393 F.3d 471, 481 (4th Cir.2005)).

1.

Here, the first Graham factor favors Appellant. Appellees have never suggested that Armstrong committed a crime or that they had probable cause to effect a criminal arrest. When the subject of a seizure “ha[s] not committed any crime, this factor weighs heavily in [the subject’s] favor.” Bailey v. Kennedy, 349 F.3d 731, 743-44 (4th Cir.2003); see also Turmon v. Jordan, 405 F.3d 202, 207 (4th Cir.2005) (“[T]he severity of the crime cannot be taken into account because there was no crime.” (internal quotation marks omitted)). And this factor would still favor Appellant if Appellees had argued that their seizure was converted to a criminal arrest when Armstrong failed to obey the officers’ lawful orders. “Even in a case in which the plaintiff ha[s] committed a *900crime, when the offense [i]s a minor one, we have found that the first Graham factor weights] in plaintiffs favor----” Jones v. Buchanan, 325 F.3d 520, 528 (4th Cir.2003) (internal quotation marks omitted).

But we have also recognized that this first Graham factor is intended as a proxy for determining whether “an officer [had] any reason to believe that [the subject of a seizure] was a potentially dangerous individual.” Smith, 781 F.3d at 102. And while Armstrong committed no crime, the legal basis of his seizure did put Appellees on notice of two facts that bear on the question of whether Appellees had reason to believe Armstrong was dangerous.

First, as the subject of an involuntary commitment order, executed pursuant to N.C. GemStat. § 122C-262, Armstrong was necessarily considered “mentally ill.” See also N.C. Gen.Stat. § 122C-261(a). Armstrong’s mental health was thus one of the “facts and circumstances” that “a reasonable officer on the scene” would ascertain. Graham, 490 U.S. at 396, 109 S.Ct. 1865. And it is a fact that officers must account for when deciding when and how to use force. See Champion v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir.2004) (“It cannot be forgotten that the police were confronting an individual whom they knew to be mentally ill.... The diminished capacity of an unarmed detainee must be taken into account when assessing the amount of force exerted.”). “The problems posed by, and thus the tactics to be employed against, an unarmed, emotionally distraught individual who is creating a disturbance or resisting arrest are ordinarily different from those involved in law enforcement efforts to subdue an armed and dangerous criminal who has recently committed a serious offense.” Bryan v. MacPherson, 630 F.3d 805, 829 (9th Cir.2010) (alteration omitted) (quoting Deorle v. Rutherford, 272 F.3d 1272, 1282-83 (9th Cir.2001)). “[T]he use of force that may be justified by” the government’s interest in seizing a mentally ill person, therefore, “differs both in degree and in kind from the use of force that would be justified against a person who has committed a crime or who poses a threat to the community.” Id.

Mental illness, bf course, describes a broad spectrum of conditions and does not dictate the same police response in all situations. But “in some circumstances at least,” it means that “increasing the use of force may ... exacerbate the situation.” Deorle, 272 F.3d at 1283. Accordingly, “the use of officers and others trained in the art of counseling is ordinarily advisable, where feasible, and may provide the best means of ending a crisis.” Id. And even when this ideal course is not feasible, officers who encounter an unarmed and minimally threatening individual who is “exhibiting] conspicuous signs that he [i]s mentally unstable” must “de-escalate the situation and adjust the application of force downward.” Martin v. City of Broadview Heights, 712 F.3d 951, 962 (6th Cir.2013).

The second relevant fact that Appellees could glean from Armstrong’s commitment order is that a doctor determined him to be a danger to himself.7 *901Where a seizure’s sole justification is preventing harm to the subject of the seizure, the government has little interest in using force to effect that seizure. Rather, using force likely to harm the subject is manifestly contrary to the government’s interest in initiating that seizure. See Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir.2003) (When “a mentally disturbed individual not wanted for any crime ... [i]s being taken into custody to prevent injury to himself[,] [djirectly causing [that individual] grievous injury does not serve th[e officers’] objective in any respect.”).

The first Graham factor thus weighs against imposition of force. The government’s interest in seizing Armstrong was to prevent a mentally ill man from harming himself. The justification for the seizure, therefore, does not vindicate any degree of force that risks substantial harm to the subject.

2.

The second and third Graham factors, whether Armstrong threatened the safety of others and resisted seizure, do justify some — limited—use of force, though. Ap-pellees had observed Armstrong wandering into traffic with little regard for avoiding the passing cars, and the seizure took place only a few feet from an active roadway. Armstrong, moreover, fled from the Hospital earlier that day, although he did not go far. Under such circumstances, Appellees concerns that Armstrong may try to flee into the street to avoid being returned to the Hospital, thereby endangering himself and individuals in passing cars, were objectively reasonable. A degree of force was, consequently, justified.

But that justified degree of force is the degree reasonably calculated to prevent Armstrong’s flight. When Appellees decided to begin using force, Armstrong, who stood 5'11" tall and weighed 262 pounds, was stationary, seated, clinging to a post, and refusing to move. He was also outnumbered and surrounded by police officers and security guards. The degree of force necessary to prevent an individual who is affirmatively refusing to move from fleeing is obviously quite limited.

Armstrong was also resisting the seizure. There is no question that, prior to being tased, Armstrong was refusing to let go of the post he had wrapped himself around despite verbal instruction to desist and a brief — 30-second—attempt to physically pull him off. Noncompliance with lawful orders justifies some use of force, but the level of justified force varies based on the risks posed by the resistance. See Bryan, 630 F.3d at 830 (“‘Resistance,’ however, should not be understood as a binary state, with resistance being either completely passive or active.... Even purely passive resistance can support the use of some force, but the level of force an individual’s resistance will support is dependent on the factual circumstances underlying that resistance.”) And, here, the factual circumstances demonstrate little risk — Armstrong was stationary, non-violent, and surrounded by people willing to help return him to the Hospital. That Armstrong was not allowing his arms to be pulled from the post and was refusing to comply with shouted orders to let go, while cause for some concern, do not import *902much danger or urgency into a situation that was, in effect, a static impasse.

3.

When we turn “an eye toward the proportionality of the force in light of all the[se] circumstances,’ ” Smith, 781 F.3d at 101 (alteration and emphasis supplied) (quoting Waterman, 393 F.3d at 481), it becomes evident that the level of force Appellees chose to use was not objectively reasonable. Appellees were confronted with a situation involving few exigencies where the Graham factors justify only a limited degree of force. Immediately tas-ing a non-criminal, mentally ill individual, who seconds before had been conversational, was not a proportional response.

Deploying a taser is a serious use of force. The weapon is designed to “caus[e] ... excruciating pain,” Cavanaugh v. Woods Cross City, 625 F.3d 661, 665 (10th Cir.2010), and application can burn a subject’s flesh, see Orem v. Rephann, 523 F.3d 442, 447-48 (4th Cir.2008) abrogated on other grounds by Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010); cf. Commonwealth v. Caetano, 470 Mass. 774, 26 N.E.3d 688, 692 (2015) (“[W]e consider the stun gun a per se dangerous weapon at common law.”). We have observed that a taser “inflicts a painful and frightening blow.” Orem, 523 F.3d at 448 (quoting Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir.1993)). Other circuits have made similar observations.8 See, e.g., Estate of Booker v. Gomez, 745 F.3d 405, 414 n. 9 (10th Cir.2014) (“A taser delivers electricity into a person’s body, causing severe pain.”); Abbott v. Sangamon Cnty., 705 F.3d 706, 726 (7th Cir.2013) (“This court has acknowledged that one need not have personally endured a taser jolt to know the pain that must accompany it, and several of our sister circuits have likewise recognized the intense pain inflicted by a taser.” (internal citations and quotation marks omitted)); Bryan, 630 F.3d at 825 (“The physiological effects, the high levels of pain, and foreseeable risk of physical injury lead us to conclude that the X26 and similar devices are a greater intrusion than other nonlethal methods of force we have confronted.”).

These observations about the severe pain inflicted by tasers apply when police officers utilize best practices. The taser use at issue in this case, however, contravenes current industry and manufacturer recommendations. Since at least 2011, the Police Executive Research Forum (“PERF”) and the Department of Justice’s Office of Community Oriented Policing Services (“COPS”) have cautioned that using drive stun mode “to achieve pain compliance may have limited effectiveness and, when used repeatedly, may even exacerbate the situation.” PERF & COPS, 2011 Electronic Control Weapon Guidelines, at 14 (March 2011) (emphasis omitted). The organizations, therefore, recommend that police departments “carefully consider pol*903icy and training regarding when and how personnel use the drive stun mode[] and ... discourage its use as a pain compliance tactic.” Id. In 2013, moreover, Taser International, the manufacturer of the taser Appellees used in this case, warned, “Drive-stun use may not be effective on emotionally disturbed persons or others who may not respond to pain due to a mind-body disconnect.” Cheryl W. Thompson & Mark Berman, Stun guns: ‘There was just too much use,’ Wash. Post, Nov. 27, 2015, at Al. Taser users, the warning goes on, should “[a]void using repeated drive-stuns on such individuals if compliance is not achieved.” Id. Even the company that manufactures tasers, in other words, now warns against the precise type of taser use inflicted on Armstrong.

Force that imposes serious consequences requires significant circumscription. Our precedent, consequently, makes clear that tasers are proportional force only when deployed in response to a situation in which a reasonable officer would perceive some immediate danger that could be mitigated by using the taser. In Meyers v. Baltimore County, we parsed a defendant-officer’s taser deployments based on the level of resistance the arres-tee was offering — and the danger that resistance posed to the officers — when each shock was administered. See 713 F.3d 723, 733-34 (4th Cir.2013). The “first three deployments of [the] taser did not amount to an unreasonable or excessive use of force[ ] [because the arrestee] was acting erratically, was holding a baseball bat that he did not relinquish until after he received the second shock, and was advancing toward the officers.... ” Id. at 733. But seven later deployments of the taser did amount to excessive force:

It is an excessive and unreasonable use of force for a police officer repeatedly to administer electrical shocks with a taser on an individual who no longer is armed, has been brought to the ground, has been restrained physically by several other officers, and no longer is actively resisting arrest.

Id. at 734. Immediate danger was thus key to our distinction — tasing the arrestee ceased being proportional force when the officer “continued to use his taser” after the arrestee “did not pose a continuing threat to the officers’ safety.” Id. at 733.

In Orem v. Rephann, though we were applying a Fourteenth Amendment test rather than the Fourth Amendment’s objective reasonableness test, we rejected an officer’s argument that the taser deployment in question was intended to prevent an arrestee from endangering herself because the facts belied any immediate danger. See 523 F.3d at 447-49. Rather, those facts — that “Orem was handcuffed, weighed about 100 pounds, had her ankles loosened in the hobbling device which Deputy Boyles was tightening, and was locked in the back seat cage of Deputy Boyles’s car until Deputy Rephann opened the door” — indicated that “the taser gun was not used for a legitimate purpose!,] such as protecting the officers, protecting Orem, or preventing Orem’s escape.” Id. As in Meyers, then, we tied permissible taser use to situations that present some exigency that is sufficiently dangerous to justify the force.

Appellees understand these cases to proscribe tasing when a subject has already been restrained but to sanction the practice when deployed against active resistance. Since Armstrong was unrestrained and actively resisting, they contend, their taser use must be permissible.

We disagree. While the questions whether an arrestee has been restrained and is complying with police directives are, of course, relevant to any inquiry into the extent to which the arrestee “pose[s] a *904continuing threat to the officers’ safety,” Meyers, 713 F.3d at 733, they are not dispositive. A rule limiting taser use to situations involving a proportional safety threat does not countenance use in situations where an unrestrained arrestee, though resistant, presents no serious safety threat.

Indeed, application of physical restraints cannot be the only way to ensure that an arrestee does not pose a sufficient safety threat to justify a tasing. If it were, use of a taser would be justified at the outset of every lawful seizure, before an arrestee has been restrained. This, of course, is not the law. Courts recognize that different seizures present different risks of danger. See, e.g., Parker v. Gerrish, 547 F.3d 1, 9 (1st Cir.2008) (“Though driving while intoxicated is a serious offense, it does not present a risk of danger to the arresting officer that is presented when an officer confronts a suspect engaged in an offense like robbery or assault.”). Firing a taser “almost immediately upon arrival” at the scene of an altercation, before an officer “could ... have known what was going on,” is, consequently, constitutionally proscribed. Casey v. City of Fed. Heights, 509 F.3d 1278, 1285 (10th Cir.2007); see also id. at 1286 (“[I]t is excessive to use a Taser to control a target without having any reason to believe that a lesser amount of force — or a verbal command — could not exact compliance.”). Painful, injurious, serious inflictions of force, like the use of a taser, do not become reasonable simply because officers have authorization to arrest a subject who is unrestrained.

Even noncompliance with police directives and nonviolent physical resistance do not necessarily create “a continuing threat to the officers’ safety.” Meyers, 713 F.3d at 733. Examples of minimally risky physical resistance are prevalent. Refusing to enter an out-of-state officer’s police car until a local officer is summoned is not a sufficient threat to the arresting officer to justify physically striking the arrestee. See Rambo v. Daley, 68 F.3d 203, 207 (7th Cir.1995). Nor is an arrestee pulling her arm away when a police officer attempts to grab her without explanation. See Smith, 781 F.3d at 103. An arrestee “yank[ing] his arm away” from a police officer, similarly, does not justify “being tackled.” Goodson v. City of Corpus Christy 202 F.3d 730, 733, 740 (5th Cir.2000).

Unsurprisingly, then, other circuits have held that taser use can constitute excessive force when used in response to nonviolent resistance. The subject of a seizure “refusing] to release his arms for handcuffing,” for example, “is no[t] evidence suggesting that [he] violently resisted the officers’ attempts to handcuff him.” Cyrus v. Town of Mukwonago, 624 F.3d 856, 863 (7th Cir.2010) (emphasis supplied). Such a refusal, therefore, does not justify deploying a taser when the subject “[i]s unarmed and there [i]s little risk [he] could access a weapon,” according to the Seventh Circuit. Id. The en banc Ninth Circuit has drawn a similar conclusion: A suspect “actively resist[s] arrest [when] she refuse[s] to get out of her car when instructed to do so and stiffen[s] her body and clutche[s] her steering wheel to frustrate the officers’ efforts to remove her from her car,” but when she also “d[oes] not evade arrest by flight, and no other exigent circumstances exist[ ] at the time[,] ... [a] reasonable fact-finder could conclude ... that the officers’ use of [a taser] was unreasonable and therefore constitutionally excessive.” Mattos v. Agarano, 661 F.3d 433, 446 (9th Cir.2011) (en banc). The Eighth Circuit agrees as well. See Brown v. City of Golden Valley, 574 F.3d 491, 497 (8th Cir.2009) (refusal to termi*905nate a telephone call after police ordered an arrestee to do so does not justify tasing even though the police officer was concerned that the arrestee could use glass tumblers near her feet as weapons or could kick the officer).

And this conclusion, that taser use is unreasonable force in response to resistance that does not raise a risk of immediate danger, is consistent with our treatment of police officers’ more traditional tools of compliance. We have denied summary judgment on excessive force claims to an officer, who “punched [an arrestee] [,] threw him to the ground,” and, subsequently, “used a wrestling maneuver” on him, because there was no “real evidence that [a] relatively passive, [mentally delayed] man was a danger to the larger, trained police officer.” Rowland v. Perry, 41 F.3d 167, 172, 174 (4th Cir.1994). In doing so, we rejected the argument that such force was a reasonable response to “the resistance offered by [the arrestee] during the struggle,” reason