ORDER

JENNIFER G. ZIPPS, District Judge.

On March 29, 2014, riots broke out on University Boulevard in Tucson, Arizona, after the Arizona Wildcats lost to the Wisconsin Badgers in the NCAA basketball tournament. This case arises out of the Tucson Police Department's (TPD) response to those riots. Plaintiff Andres Martinez asserts that Officer Brook Smith and Sergeant Michael Humphries1 violated his Fourth Amendment rights when Officer Smith, with the authorization of Sergeant Humphries, shot Martinez in the leg with a non-lethal projectile. Currently pending before the Court is a Motion for Summary Judgment filed by Officer Smith and Sergeant Humphries.2 The Motion presents two arguments: (1) the officers' use of force was objectively reasonable under the circumstances, and (2) the officers are protected by qualified immunity. Because the Court finds that the doctrine of qualified immunity applies, it does not address the Defendants' alternative argument.

I. STANDARD OF REVIEW

In deciding a motion for summary judgment, the Court views the evidence and all reasonable inferences in the light most favorable to the party opposing the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir. 1987). Summary judgment is appropriate if the pleadings and supporting documents "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). Material facts are those "that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A genuine issue exists if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. A party moving for summary judgment initially must demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 325. The moving party merely needs to point out to the Court the absence of evidence supporting its opponent's claim; it does not need to disprove its opponent's claim. Id.; see also Fed. R. Civ. P. 56(c). If a moving party has made this showing, the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see also Fed. R. Civ. P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995).

Even where the Court resolves a motion for summary judgment on the issue of qualified immunity, it is still important that inferences be drawn in favor of the non-movant. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014). However, in determining whether an officer is entitled to qualified immunity, the Court considers the facts that were knowable to the defendant officers. White v. Pauly, 137 S.Ct. 548, 551 (2017).

II. FACTUAL BACKGROUND

Viewing evidence in the light most favorable to Martinez and including those facts which were knowable to the TPD officers, the undisputed facts are as follows.3

On March 29, 2014, a riot4 broke out on University Boulevard in Tucson, after the University of Arizona (UA) men's basketball team lost in the Elite Eight round of the NCAA tournament. During the game, the bars in the area were crowded to overflowing capacity, with people who could not fit inside standing outside the bar and patio areas. (DSOF 18, 83; PSOF 18, 83.) Plaintiff Andres Martinez, a 25-year old Tucson resident, watched the game at a bar on University Boulevard with his friends. (DSOF 125; PSOF 125.)

Officer Smith and Sergeant Humphries were also on University Boulevard during the game, in their capacities as members of TPD's Special Weapons and Tactics (SWAT) team and Mobile Field Force (MFF) team. (DSOF 6, 14, 70, 79; PSOF 6, 14, 70, 79.) Because riots had occurred in 1997 and 2001 after the UA's participation in the NCAA Basketball Tournament, TPD had a response plan in place prior to the tournament, which involved the use of the MFF team to maintain order and manage a response in the event of an unlawful assembly. (DSOF 9, 74; PSOF 9, 74; see also TPD's Incident Action Plan, doc. 26-1, pp. 18-39.) Although neither Officer Smith nor Sergeant Humphries was present at the earlier riots, both officers were aware of the violence that had occurred, including fighting among the rioters, damage to local businesses, and cars that were overturned and set on fire. (DSOF 10, 75; PSOF 10, 75.) On the day in question, Officer Smith was assigned the role of grenadier and an Arwen "less lethal system."5 (DSOF 14; PSOF 14.) Sergeant Humphries supervised the grenadier squad to which Officer Smith was assigned. (DSOF 79; PSOF 79.)

When the basketball game ended, fans spilled from bars into the street. (See DSOF 18, 20, 85; PSOF 18, 20, 85.) Approximately 100 officers were present to control a crowd of over 1,000 people, many of whom had become violent and were threatening public safety by taking over the roadways. (DSOF 43c, 101; PSOF 43c, 101.) Initially, motorcycle units used lights and sirens while making laps up and down University Boulevard in an effort to disperse the crowd and to get pedestrian traffic moving, but the crowd "quickly became unruly" and the motor units were recalled for their safety. (DSOF 21; PSOF 21.) The MFF team formed a column of twos and fell back to clear civilians behind them. As the officers turned around and walked away from the crowd, the crowd became emboldened and began to cheer. (DSOF 22; PSOF 22.) The MFF units reformed in a skirmish line in front of the grenadiers (DSOF 23; PSOF 23), and a police vehicle was parked in the space between the crowd and the line of officers, with its overhead lights on. (See doc. 26-1, ex. 9d.) Officers sitting in the parked vehicle continuously broadcast the following dispersal order:

(DSOF 24, 32, 92, 93; PSOF 24, 32, 92, 93.) In spite of the orders, the crowd refused to disperse and continued to be extremely animated and belligerent. (DSOF 25; PSOF 25.)

When Martinez left the bar, he walked out to the front of the crowd, where there was already a line of police officers dressed in riot gear. (DSOF 130, 133; PSOF 130, 133.) Martinez was under the influence of alcohol—in his words, "not completely sober," but "not belligerent[ly] drunk either." (DSOF 131; PSOF 131.) Martinez observed a lot of people jumping and screaming, and he believed almost everybody was intoxicated. (DSOF 134; PSOF 134.)

Video footage from Sergeant Humphries body-worn camera shows the size and intensity of the crowd. (See doc. 26-1, ex. 9.) People were jumping up and down, waving their arms in the air at the police, and inciting other members of the crowd to engage with the police. (DSOF 25; DSOF 25.) Some people were running up to the officers in the skirmish line and yelling at them or filming them, and some were climbing onto the parked police car. (DSOF 27; PSOF 27; doc. 26-1, ex. 9c.) People in the crowd were throwing bottles, cans, and lit fireworks at the line of officers. (DSOF 26, 98; PSOF 26, 98; doc. 26-1, ex. 9f.) Officer Smith was nearly struck several times by cans and fireworks. (DSOF 30; PSOF 30.)

As can be seen on the video, Martinez was also very animated, jumping around and running in and out of the crowd and the space between the crowd and the police.6 (DSOF 114; PSOF 114; doc. 26-1, ex. 9e.) Martinez was one of the individuals who climbed onto the bumper of the police car in which officers were seated broadcasting the dispersal order. Once on the bumper, Martinez faced the surrounding crowd, which was directly in front of him, and raised his arms over his head.7 (DSOF 32, 106e, 136; PSOF 32, 106e, 136; see doc. 26-1, ex. 9d.) Martinez testified that although he could hear something being transmitted over a loudspeaker, he did not hear the dispersal order until later, after he had been shot, because the noise from the crowd was so loud. (See DSOF 141, 142; PSOF 141, 142; see also PSOF 43b.) Martinez stood on the bumper for a few seconds before jumping down. (DSOF 138; PSOF 138.) He stood at the front of the crowd with his arms open and outstretched, saying he was doing nothing. (Id.) Two or three officers approached Martinez and said something to him. (DSOF 139; PSOF 139.) Martinez cannot remember what the officers said, but he turned around and ran away because they were about to grab him. (Id.)

According to Martinez, at this point the police were handling other people very roughly, grabbing them and throwing them on the ground, tackling them, and handcuffing them with zip tie handcuffs. (DSOF 140; PSOF 140.) In Sergeant Humphries's squad, two officers deployed about 50-75 rounds each of pepper ball8 and rolled four canisters of pepper spray into the crowd. (DSOF 99; PSOF 99.) One canister of pepper spray was picked up by a member of the crowd and lobbed back at the line of officers. (Id.; doc. 26-1, ex. 9m.) Officer Smith was supporting the pepper ball operators with the Arwen 37 launcher. (DSOF 29; PSOF 29.)

When Martinez returned to the front of the crowd, Sergeant Humphries authorized Officer Smith to safely "engage" Martinez, which meant Officer Smith had the discretion to discharge the Arwen if it was safe to do so.9 (DSOF 42, 46, 102, 112; PSOF 42, 46, 102, 112.) Officer Smith shot Martinez from a distance of 30-40 feet with a single Arwen projectile, which struck Martinez on the front of his left leg, two inches above the knee.10 (DSOF 35, 103, 144; PSOF 35, 103, 144; Doc. 26-1, ex. 9f.) At the time he was struck, Martinez was standing in the space between the crowd and the officers, with his arms outstretched. (Doc. 26-1, ex. 9f.)

Martinez hobbled and limped immediately after he was shot, but he sprinted away when the arrest team came forward to apprehend him. (DSOF 36, 106i; PSOF 36, 106i.) During this time, the officers were continuing to receive incoming flying debris from the crowd, including Officer Smith who was nearly hit by a full beverage can as he knelt down behind the line, and by several lit fireworks, which landed near his feet. (DSOF 37, 39; PSOF 37, 39.) When Martinez returned again to the front of the crowd, Sergeant Humphries attempted to call Martinez over to him so he could investigate the use of force and arrest Martinez. (DSOF 106j; PSOF 106j.) However, Martinez again ran away. (See DSOF 51, 106j; PSOF 51, 106j.)

Martinez was next seen at the front of the crowd talking with a reporter. (DSOF 51, 146; PSOF 51, 146; doc. 26-1, ex. 9k.) When the officers approached him, Martinez tried to run again, but the arrest team caught him from behind and placed him in zip tie cuffs. (DSOF 40, 51, 106k, 148; PSOF 40, 51, 106k, 148.) Martinez was placed in a van with nine other people, cited for disorderly conduct, and released at the scene. (DSOF 149, 151; PSOF 149, 151.) Sometime after Martinez's arrest, TPD pushed the crowd to the intersection of Euclid Avenue and University Boulevard, where most of the crowd decided to leave the area; TPD was then able to re-open the area. (DSOF 41; PSOF 41.) Martinez ultimately pled guilty to disorderly conduct. (DSOF 151; PSOF 151.)

Martinez filed this action on March 25, 2015, alleging that the use of the Arwen projectile on him during the riot was a violation of his Fourth Amendment right to be free from excessive force.11 (Doc. 1.) Officer Smith and Sergeant Humphries assert the defense of qualified immunity.

III. QUALIFIED IMMUNITY

"In § 1983 actions, the doctrine of qualified immunity protects city officials from personal liability in their individual capacities for their official conduct so long as that conduct is objectively reasonable and does not violate clearly-established federal rights." Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 964 (9th Cir. 2010) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A state official is entitled to qualified immunity unless the plaintiff can show "(1) that the official violated a statutory or constitutional right, and (2) that the right was `clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow, 457 U.S. at 818). Although lower courts have discretion to determine which of the two prongs to address initially, with respect to the first prong, the Supreme Court has cautioned that courts should "think carefully before expending `scarce judicial resources' to resolve difficult and novel questions of constitutional or statutory interpretation that will `have no effect on the outcome of the case.'" Id. (citing Pearson v. Callahan, 555 U.S. 223, 236-42 (2009)). Here the Court finds that Martinez has failed to satisfy the second prong of the qualified immunity analysis by demonstrating that the Defendants violated a "clearly established" right.12

As the Plaintiff, Martinez bears the burden of demonstrating a clearly established right existed at the time of the alleged violation. See al-Kidd, 563 U.S. at 735. "A Government official's conduct violates clearly established law when, at the time of the challenged conduct, `[t]he contours of [a] right [are] sufficiently clear' that every `reasonable official would [have understood] that what he is doing violates that right.'" Al-Kidd, 563 U.S. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (changes in original). To clearly establish a right, a case need not be "directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Ames v. King Cty., Washington, —F.3d —, No. 14-36035, 2017 WL 127563, at *4 (9th Cir. Jan. 13, 2017) (citations omitted). The Supreme Court has repeatedly emphasized that the general standard for excessive force claims set forth in Graham v. Connor, 490 U.S. 386 (1989), does not, except in obvious cases, clearly establish that a right exists. See White v. Pauly, 137 S.Ct. 548, 552 (2017) (per curiam) (appeals court "fundamentally misunderstood the `clearly established' analysis" where it "failed to identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment."); Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (the identified right should not be defined at a high level of generality); al-Kidd, 563 U.S. at 741 (2011) ("The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of the particular conduct is clearly established."); Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004) ("`[T]here is no doubt that Graham v. Connor . . . clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough."). The clearly established law must be particularized to the facts of the case. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014). Such specificity is especially important in the Fourth Amendment context, where the Court has recognized that "[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts." Mullenix, 136 S. Ct. at 308 (quoting Haugen, 533 U.S. at 205)).

IV. APPLICATION

Although Martinez acknowledges that Graham's general excessive force standard cannot always provide fair notice to every reasonable law enforcement officer that his conduct is unconstitutional, Martinez fails to identify authority that would have put Officer Smith and Sergeant Humphries on notice that, at the time of the alleged violation, their conduct violated a clearly established right. Martinez fails to identify any case particularized to the facts of this case. Rather, Martinez suggests that because he was not posing a risk of harm to the officers or others, it should have been obvious to the officers that the use of force was not justified.

The Court rejects Martinez's argument for two reasons. First, it is premised on a faulty factual foundation. Viewing the undisputed facts and the video clips and the reasonable inferences that can be drawn therefrom in the light most favorable to Martinez, no reasonable juror could conclude that Martinez was not posing a risk of harm to the officers or others. Martinez himself admits that approximately 100 officers were present to control a crowd of over 1,000 people, many of whom had become violent and were threatening public safety by taking over the roadways. (DSOF 43c, 101; PSOF 43c, 101.) Martinez admits, and the video clips show, that before and at the time Officer Smith shot Martinez, Martinez was an active member of that crowd. Moreover, Martinez does not dispute that in addressing the unruly crowd, Officer Smith and Sergeant Humphries knew: (1) the crowd of over a thousand people on University Boulevard was blocking roadways and threatening public safety; (2) the crowd was refusing to disperse, in spite of the continuous broadcast of the dispersal order from a parked police car; (3) Martinez was one member of that crowd who was not complying with the dispersal order; (4) other members of the crowd were continuously throwing items at the officers, including lit fireworks, full cans of liquid and, on at least one occasion, a canister of pepper spray; (5) Martinez appeared on multiple occasions at the front of the crowd, in the space between the crowd and the lines of officers; (6) Martinez was very animated, and could be seen jumping and dancing around in front of the crowd; (7) Martinez climbed on the parked police car with flashing lights, from which the dispersal order was broadcast; (8) Martinez remained standing on the bumper of the car facing the crowd with his arms raised for several seconds; (9) there was an officer sitting in the parked car while Martinez was standing on the car; (10) in prior sports riots on University Boulevard, cars had been flipped over and set on fire; (11) after Martinez climbed down from the car, Sergeant Humphries attempted to approach Martinez, but Martinez turned and ran into the crowd; (12) for safety reasons, officers did not follow Martinez into the crowd; and (13) at the time he was shot, Martinez was again standing in front of the crowd, in the space between the crowd and the officers, with his arms outstretched.13

Second, existing precedent would not have informed every reasonable official that shooting Martinez in the leg with nonlethal force would violate Martinez's Fourth Amendment right to be free from excessive force.14 In fact, several cases have upheld the use of non-lethal force where individual crowd members openly defied police orders or directly harmed the officers. See, e.g., Bernini v. City of St. Paul, 665 F.3d 997, 1006 (8th Cir. 2012) (use of non-lethal munitions at crowd did not violate clearly established rights where members of crowd turned to face police line and refused to move in direction of park where crowd could be controlled); Duran v. Sirgedas, 240 F. App'x 104, 118 (7th Cir. 2007), vacated in part on reh'g (July 17, 2007) (finding officer did not use excessive force when he struck plaintiff in the leg with a baton and in the head with a closed first where plaintiff fled to avoid arrest and resisted by struggling and biting officer during group fight). In contrast, courts have held that the use of non-lethal force to disperse a crowd is excessive where members of the crowd are attempting to comply with police orders and pose no threat to public safety. See, e.g., Asociacion de Periodistas de Puerto Rico v. Mueller, 529 F.3d 52, 60 (1st Cir. 2008) ("[M]ere obstinance by a crowd, without any evidence of a potential public safety threat or other law enforcement consideration, is insufficient to warrant the show of force that. . .was exhibited by the law enforcement officers here."); Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008) (finding excessive force where Fogarty was shot with pepper-ball, forcibly handcuffed, and dragged down the street, where neither Fogarty nor other protesters posed a threat to officer safety); Ciminillo v. Streicher, 434 F.3d 461, 467 (6th Cir. 2006) (shooting Ciminillo without provocation at point-blank range constituted excessive force, where he was attempting to leave riot but was advancing towards officers); Headwaters Forest Def. v. County of Humboldt, 276 F.3d 1125, 1130 (9th Cir. 2002) (finding unreasonable the use of pepper spray against nonviolent protestors who were "sitting peacefully, were easily moved by the police, and did not threaten or harm the officers"). However, even viewing the facts in the light most favorable to Martinez, a reasonable juror could not conclude that Martinez was attempting to comply with police orders to disperse. Rather, the parties agree that the University crowd did pose a threat to public safety and TPD officers were being assaulted by members of the crowd who, like Martinez, refused to comply with police orders.

V. CONCLUSION

Because Martinez has failed to meet his burden of proving that Sergeant Humphries and Officer Smith acted in violation of clearly established law, the defendants are entitled to qualified immunity. Accordingly,

IT IS ORDERED that Plaintiff's claims under the Fourteenth Amendment are dismissed.

IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment (doc. 25) is GRANTED.

The Clerk of the Court must enter judgment accordingly and close the case.