PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 15-1191


THE ESTATE OF RONALD H. ARMSTRONG,           by   and   through   his
Administratrix, Jinia Armstrong Lopez,

                 Plaintiff - Appellant,

           v.

THE VILLAGE OF PINEHURST; OFFICER JERRY MCDONALD, In his
official and individual capacity; OFFICER TINA S. SHEPPARD,
In her official and individual capacity; OFFICER ARTHUR LEE
GATLING, JR., In his official and individual capacity,

                 Defendants - Appellees,

           and

TASER INTERNATIONAL, INC.,

                 Defendant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cv-00407-CCE-JLW)


Argued:   October 28, 2015                  Decided:    January 11, 2016


Before WILKINSON, KEENAN, and THACKER, Circuit Judges.


Affirmed by published opinion.     Judge Thacker wrote the opinion,
in which Judge Keenan joined.      Judge Wilkinson wrote a separate
opinion concurring in part.
ARGUED: Karonnie R. Truzy, CRUMLEY ROBERTS, LLP, Greensboro,
North Carolina, for Appellant.   Dan McCord Hartzog, CRANFILL
SUMNER & HARTZOG LLP, Raleigh, North Carolina, for Appellees.
ON BRIEF: David J. Ventura, CRUMLEY ROBERTS, LLP, Charlotte,
North Carolina, for Appellant.  Dan M. Hartzog, Jr., CRANFILL
SUMNER & HARTZOG LLP, Raleigh, North Carolina; Michael J.
Newman, VAN CAMP, MEACHAM & NEWMAN PLLC, Pinehurst, North
Carolina, for Appellees.




                              2
THACKER, Circuit Judge:

             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, 

, 531 (4th

Cir.   2011)      (en       banc).       We     “determine        de    novo    whether       the

facts . . . establish                the         deprivation            of      an       actual

constitutional right,” Leverette v. Bell, 

, 166 (4th

Cir.   2001),         and    “[w]e      review       de   novo    an    award    of    summary

                                                 3
judgment on the basis of qualified immunity,” Durham v. Horner,

,    188    (4th    Cir.       2012).     “Summary      judgment      is

appropriate     only    if    taking    the      evidence      and     all   reasonable

inferences drawn 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.’”                          

(quoting Ausherman v. Bank of Am. Corp., 

, 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 “[d]uring the

course of the evaluation he apparently became frightened and

eloped from the [emergency department].”                       

that

flight    and   Lopez’s      report    about       his   odd    behavior       over   the



      1Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                            4
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.

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.



      2North Carolina law required that Armstrong’s involuntary
commitment order be certified in writing and notarized before it
took effect.     See N.C. Gen. Stat. § 122C-262(b).       Police
officers are sometimes authorized to seize individuals to
prevent them from harming themselves without a commitment order
in place, see 

but Appellees did not go that
route.   Rather, they rely solely on the involuntary commitment
order as authorization for their seizure of Armstrong.



                                     5
             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

ground, 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

                                               6
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.



     3 Tasers generally have two modes. “In dart mode, a taser
shoots probes into a subject and overrides the central nervous
system.”   Estate of Booker v. Gomez, 

, 414 n.10
(10th Cir. 2014). Drive stun mode, on the other hand, “does not
cause an override of the victim’s central nervous system”; that
mode “is used as a pain compliance tool with limited threat
reduction.” 

marks omitted). Appellees’
expert confirmed that the drive stun mode on the TASER X26 ECD
that Officer Gatling was carrying is intended to be used for
pain compliance rather than incapacitation.
     4 The number of times Armstrong was tased is a disputed
fact.   But Lopez testified that she saw it happen five times,
and because summary judgment was granted in favor of Appellees,
this court must accept her version of the facts.     See Henry v.
Purnell, 

, 527 (4th Cir. 2011) (en banc).



                                       7
              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

chokeholds, 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 facedown 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




       5
       It is not clear exactly how long Armstrong was left
facedown on the ground after he had been secured.      But Lopez
conceded that it “happen[ed] pretty quickly really” and that the
officers responded “immediately” when asked to check on
(Continued)
                                          8
had already become dire.             When the officers flipped him over,

his skin had turned 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




Armstrong. J.A. 241. Other witnesses estimated the time as “a
couple of seconds” and “15 to 20 seconds.” 

446.



                                            9
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, 

, 531 (4th Cir.



     6 Appellant’s complaint alleges additional causes of action
and names additional defendants.      But Appellant’s brief on
appeal presses only one claim: The officers attempting to
execute the involuntary commitment order used unconstitutionally
excessive force.   “Failure to present or argue assignments of
error in opening appellate briefs constitutes a waiver of those
issues,” IGEN Int’l, Inc. v. Roche Diagnostics GmbH, 

, 308 (4th Cir. 2003), so the excessive force claim is the
only matter that remains pending in this appeal.     See Fed. R.
App. P. 28(a)(8)(A).



                                            10
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, 

, 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.’”            

   original)

(quoting    Pearson   v.     Callahan,         

,   242    (2009)).

Appellant’s case survives summary judgment, however, only if we

answer both questions in the affirmative.                   See 

.

           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.”

(quoting Cnty. of Sacramento v. Lewis,

, 841 n.5 (1998)).                  Though 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.”          

         Because excessive force

claims raise such questions, see Nancy Leong, Improving Rights,

. Rev. 377, 393 (2014) (“[E]xcessive force claims are

                                          11
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, 

, 197

(2004) (per curiam) (quoting Saucier v. Katz, 

, 201

(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, 

, 388 (1989); see also Scott v. Harris,

, 381 (2007).            “The test of reasonableness under the

Fourth     Amendment     is    not     capable    of    precise       definition    or

mechanical application.”             Bell v. Wolfish, 

, 559

(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

                                          12
countervailing governmental interests at stake.”                    Smith v. Ray,

, 101 (4th Cir. 2015) (quoting 

).     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.” 

(quoting 

).      “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.’”    

v. Batton, 

,

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, 

, 743-44 (4th Cir. 2003); see also Turmon

v. Jordan, 

, 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

                                         13
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 crime, when the offense [i]s a

minor one, we have found that the first Graham factor weigh[s]

in plaintiff’s favor . . . .”                 Jones v. Buchanan, 

,

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.”                             

.       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.    Gen.     Stat.     § 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.                         

.

And it is a fact that officers must account for when deciding

when and how to use force.                   See Champion v. Outlook Nashville,

Inc., 

, 904 (6th Cir. 2004) (“It cannot be forgotten

                                              14
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, 

,     829    (9th    Cir.       2010)      (alteration     omitted)      (quoting

Deorle v. Rutherford, 

, 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.”                     

of 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.”         

.                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.”                

when this ideal course

                                                15
is not feasible, officers who encounter an unarmed and minimally

threatening      individual   who    is    “exhibit[ing]   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, 

, 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    Where    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,

, 1059 (9th Cir. 2003) (When “a mentally disturbed



      7Armstrong’s involuntary commitment order could have issued
in order “to prevent harm to self or others,” N.C. Gen. Stat.
§ 122C-262(a) (emphasis supplied), and it is not entirely clear
from the record whether reasonable officers at the scene would
have known that Armstrong had only been judged a danger to
himself or would have thought that a doctor may consider him a
danger to others.    The officers did, however, speak to Wayne
Morton, the behavioral assessment nurse who assisted with
preparation of Armstrong’s commitment papers, prior to seizing
Armstrong.    In addition, the officers observed Armstrong for
over 20 minutes before the involuntary commitment order was
issued.    During this period, Armstrong engaged in behavior
mildly harmful to himself, but he exhibited no risk of flight or
risk of harm to others.    Taking these facts in the light most
favorable to Appellant, objectively reasonable officers would be
aware of the basis underlying Armstrong’s commitment order.



                                          16
individual not wanted for any crime . . . [i]s being taken into

custody to prevent injury to himself[,] [d]irectly 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.                    Appellees 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

                                           17
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 

      (“‘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

                                                      18
refusing to comply with shouted orders to let go, while cause

for some concern, do not import much 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,’” 

(alteration and emphasis supplied) (quoting 

),       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 tasing 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, 

, 665 (10th Cir.

2010), and application can burn a subject’s flesh, see Orem v.

Rephann, 

, 447-48 (4th Cir. 2008) abrogated on other

grounds     by    Wilkins          v.    Gaddy,       

,    37   (2010);      cf.

Commonwealth v. Caetano, 

, 692 (Mass. 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.”                 

(quoting Hickey v.

                                                    19
Reeder, 

, 757 (8th Cir. 1993)).                        Other circuits have

made       similar    observations. 8         See,     e.g.,    Estate    of   Booker    v.

Gomez, 

, 414 n.9 (10th Cir. 2014) (“A taser delivers

electricity into a person’s body, causing severe pain.”); Abbott

v. Sangamon Cnty., 

, 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));        

  (“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 non-lethal

methods of force we have confronted.”).



       8
       Officer Gatling deployed his taser in drive stun mode,
which is intended to cause pain but is not intended to cause
paralysis.   

n.3.   Our conclusions about the severity
of taser use, however, would be the same had he used dart mode.
Dart mode, no less than drive stun mode, inflicts extreme pain.
See David A. Harris, Taser Use by Law Enforcement: Report of the
Use of Force Working Group of Allegheny County, Pennsylvania, 71
U. Pitt. L. Rev. 719, 726-27 (2010) (“I remember only one
coherent thought in my head while this was occurring: STOP!
STOP! GET THIS OFF ME!        Despite my strong desire to do
something, all through the Taser exposure I was completely
paralyzed.   I could not move at all.” (emphasis in original)).
And the risk of injury is increased because a paralyzed subject
may be injured by the impact from falling to the ground.     See

.      Taser use is severe and injurious
regardless of the mode to which the taser is set.



                                              20
            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 policy and training

regarding when and how personnel use the drive stun mode[] and .

. . discourage its use as a pain compliance tactic.”                       

  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    A1.      Taser     users,     the

warning goes on, should “[a]void using repeated drive-stuns on

such individuals if compliance is not achieved.”                  

company   that    manufactures     tasers,     in   other     words,    now    warns

against the precise type of taser use inflicted on Armstrong.

                                       21
           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    arrestee       was    offering     --    and    the    danger       that

resistance      posed      to    the    officers        --    when    each       shock     was

administered.        See 

, 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 . . . .”                       

        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.

     Immediate danger was thus key to our distinction --

tasing the arrestee ceased being proportional force when the




                                             22
officer “continued to use his taser” after the arrestee “did not

pose a continuing threat to the officers’ safety.”                         

              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.          

.                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.”           

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,

                                              23
of course, relevant to any inquiry into the extent to which the

arrestee “pose[s] a continuing threat to the officers’ safety,”

, 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, 

, 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, 

, 1285 (10th Cir. 2007); see also 

(“[I]t is

excessive to use a Taser to control a target without having any

                                                24
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     non-

violent     physical    resistance        do   not    necessarily      create    “a

continuing threat to the officers’ safety.”               

.       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, 

, 207 (7th Cir. 1995).

Nor is an arrestee pulling her arm away when a police officer

attempts to grab her without explanation.                 See 

.      An arrestee “yank[ing] his arm away” from a police

officer, similarly, does not justify “being tackled.”                     Goodson

v. City of Corpus Christi, 

, 733, 740 (5th Cir.

2000).

             Unsurprisingly,      then,    other     circuits   have   held     that

taser use can constitute excessive force when used in response

to non-violent resistance.         The subject of a seizure “refus[ing]

to release his arms for handcuffing,” for example, “is no[t]

evidence suggesting that [he] violently resisted the officers’

                                        25
attempts to handcuff him.”       Cyrus v. Town of Mukwonago, 

, 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.                 

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, 

, 446 (9th Cir. 2011) (en banc).                     The

Eighth Circuit agrees as well.            See Brown v. City of Golden

Valley, 

, 497 (8th Cir. 2009) (refusal to terminate

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

                                     26
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, 

, 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,”      reasoning       that,    despite     this

resistance,     the      arrestee   “posed      no    threat     to   the   officer    or

anyone else.”       

              We have similarly held that punching and throwing an

arrestee to the ground because she “took only a single step back

off of the small stoop in front of the door” and “pulled her arm

away”    during     an    attempted      handcuffing       was     excessive       force.

-03.                This nominal resistance did not

justify the officer’s use of force where a reasonable officer at

the   scene    would      not   have   “any     reason    to     believe     that    [the

arrestee] was a potentially dangerous individual” or “was at all

inclined to cause [the officer] any harm.”                     

              And we have treated pepper spray, a use of force that

causes     “closing        of    the     eyes        through     swelling       of    the

eyelids, . . .           immediate        respiratory            inflammation, . . .

                                          27
and . . . immediate burning sensations,” similarly, having held

it excessive when used on an arrestee’s wife, who was sprinting

toward police officers to assist her husband upon seeing him

placed in handcuffs.                Park v. Shiflett, 

, 848-49,

852 (4th Cir. 2001).                Though the officers at the scene thought

running full-bore toward their detainee was basis to arrest the

wife    for    “disorderly          conduct[]      [and]     obstruction      of     a    law

enforcement officer in the performance of his duties,” 

   n.*    (Traxler,       J.,     concurring      in    part    and   dissenting        in

part), we rejected any notion that such behavior justified the

application        of   pepper      spray,     see    

   (maj.       op.).

Rather,       because         “[i]t     [wa]s        difficult       to     imagine        the

unarmed [wife] as a threat to the officers or the public,” the

officers’ “irresponsible use of pepper spray twice from close

range . . . was indeed excessive.”                   

of these cases, we declined to equate conduct

that    a     police    officer       characterized         as     resistance      with     an

objective threat to safety entitling the officer to escalate

force.        Our precedent, then, leads to the conclusion that a

police      officer     may    only    use    serious       injurious     force,     like    a

taser,      when   an   objectively          reasonable      officer      would    conclude

that the circumstances present a risk of immediate danger that




                                              28
could be mitigated by the use of force.                   At bottom, “physical

resistance” is not synonymous with “risk of immediate danger.” 9

                 Therefore, in the case before us, Appellees’ use of

force       is    only   “proportional[] . . .     in     light     of   all    the

circumstances,” 

(quoting 

),   if   Armstrong’s    resistance    raised    a   risk    of

immediate danger that outweighs the Graham factors militating

against harming Armstrong.           But when the facts are viewed in the

light most favorable to Appellant, they simply do not support

that conclusion.

                 Under these facts, when Officer Gatling deployed his

taser, Armstrong was a mentally ill man being seized for his own

protection, was seated on the ground, was hugging a post to

ensure his immobility, was surrounded by three police officers




       9
       Graham’s test “requires careful attention to the facts and
circumstances of each particular case.”      

. Our holding, therefore, does not rule out the possibility
that taser use could be justified in some cases where an
arrestee’s non-compliance could be described as non-violent.
Such a situation would require the existence of facts from which
an officer could reasonably conclude that the resistance
presents   some   immediate   danger   despite   its  non-violent
character.   See Casey v. City of Fed. Heights, 

,
1285 (10th Cir. 2007) (“While we do not rule out the possibility
that there might be circumstances in which the use of a Taser
against a nonviolent offender is appropriate, we think a
reasonable jury could decide that [a police officer] was not
entitled under these circumstances to shoot first and ask
questions later.”).



                                        29
and two Hospital security guards, 10 and had failed to submit to a

lawful seizure for only 30 seconds.                   A reasonable officer would

have perceived a static stalemate with few, if any, exigencies -

- not an immediate danger so severe that the officer must beget

the exact harm the seizure was intended to avoid.

               That Armstrong had already left the Hospital and was

acting strangely while the officers waited for the commitment

order to be finalized do not change this calculus.                          If merely

acting strangely in such a circumstance served as a green light

to taser deployment, it would then be the rule rather than the

exception when law enforcement officials encounter the mentally

ill.        That cannot be.        By the time Appellees chose to inflict

force,       any   threat    had   sunk   to    its    nadir    --    Armstrong    had

immobilized himself, ceased chewing on inedible substances, and

ceased burning himself.            Use of force designed to “caus[e] . . .

excruciating        pain,”    

,   in   these

circumstances is an unreasonably disproportionate response.

               We are cognizant that courts ought not “undercut the

necessary element of judgment inherent in a constable’s attempts

to control a volatile chain of events.”                   Brown v. Gilmore, 278

       10
        Indeed, it was not the deployment of the taser that
ultimately resulted in Armstrong’s removal from the post, but
rather, the additional aid of the two security guards, who
jumped in to assist the three police officers prying him off the
post.



                                          

, 369 (4th Cir. 2002).             And we certainly do not suggest

that Appellees had a constitutional duty to stand idly by and

hope that Armstrong would change his mind and return to the

Hospital on his own accord.              But the facts of this case make

clear that our ruling does not hamper police officers’ ability

to do their jobs: Tasing Armstrong did not force him to succumb

to Appellees’ seizure -- he actually increased his resistance in

response.        When    Appellees      stopped     tasing    and     enlisted       the

Hospital’s security guards to help pull Armstrong off of the

post, however, the group removed Armstrong and placed him in

restraints.       Had    Appellees      limited     themselves      to   permissible

uses of force when seizing Armstrong, they would have had every

tool    needed   to     control   and    resolve     the     situation        at   their

disposal.

            Appellees,      therefore,        are   not    entitled      to    summary

judgment on the question whether they violated the Constitution.

Viewing the record in the light most favorable to Appellant,

Appellees   used      excessive    force,      in   violation       of   the       Fourth

Amendment. 11


       11
        We have reviewed Appellant’s additional theories of
excessive force but have determined that they lack merit. Those
theories are based on Appellees’ conduct while handcuffing and
shackling   Armstrong.    Applying   “just  enough   weight”   to
immobilize an individual “continu[ing] to struggle” during
handcuffing is not excessive force. Estate of Phillips v. City
of Milwaukee, 

, 593 (7th Cir. 1997).        Appellant
(Continued)
                                         31
                                         C.

             We, nevertheless, affirm the district court’s grant of

summary judgment in Appellees’ favor because we conclude that

Appellees are entitled to qualified immunity.

             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.”                     

.       Not     all    constitutional     violations    are

“violat[ions        of]      clearly     established . . .        constitutional

rights,” 

plaintiff may prove that an official has

violated his rights, but an official [may still be] entitled to

qualified immunity.”          Torchinsky v. Siwinski, 

, 261

(4th Cir. 1991).

             The   inquiry     into    whether    a   constitutional   right    is

clearly established requires first that we define the precise

right into which we are inquiring.                Because “[t]he dispositive



concedes that Armstrong was resisting Appellees’ efforts to
restrain   him,  that   Appellees   stopped  applying  force   to
Armstrong’s back when their restraints were secure, and that
Armstrong was left in the prone position for a very short period
of time after being restrained. Lopez, herself, even placed her
foot on Armstrong’s leg to assist Appellees’ efforts to
immobilize   Armstrong   and   apply   restraints.     In   those
circumstances, an officer at the scene could conclude that the
force used to hold Armstrong down and the length of time
Armstrong was left on the ground were objectively reasonable.



                                         32
question is ‘whether the violative nature of particular conduct

is clearly established,’” Mullenix v. Luna, 

, 308

(2015) (per curiam) (emphasis in original) (quoting Ashcroft v.

al-Kidd,    

,     742    (2011)),      courts     must     “not . . .

define clearly established law at a high level of generality,”

.

            After    defining       the    right,      we    ask   whether          it   was

clearly     established      at    the    time     Appellees       acted.       A    right

satisfies    this    standard      when    it    is    “sufficiently       clear         that

every reasonable official would have understood that what he is

doing   violates     that    right.”           Mullenix,     136   S.     Ct.       at   308

(quoting Reichle v. Howards, 

, 2093 (2012)).

            “This    is     not    to    say    that    an    official      action        is

protected    by     qualified      immunity      unless      the   very     action        in

question has previously been held unlawful, but it is to say

that in the light of pre-existing law the unlawfulness must be

apparent.”     Wilson v. Layne, 

, 615 (1999) (quoting

Anderson v. Creighton, 

, 640 (1987)).                       “[O]fficials

can . . . be on notice that their conduct violates established

law even in novel factual circumstances.”                     Hope v. Pelzer, 

, 741 (2002).             But they must, in fact, have notice in

order to be held liable.

            The constitutional right in question in the present

case, defined with regard for Appellees’ particular violative

                                          33
conduct,      is     Armstrong’s   right    not   to    be   subjected     to   tasing

while offering stationary and non-violent resistance to a lawful

seizure.          Cf. Hagans v. Franklin Cnty. Sheriff’s Office, 

, 509 (6th Cir. 2012) (“Defined at the appropriate level

of generality -- a reasonably particularized one -- the question

at hand is whether it was clearly established in May 2007 that

using a taser repeatedly on a suspect actively resisting arrest

and refusing to be handcuffed amounted to excessive force.”).

While       our     precedent   supports    our   conclusion        that   Appellees

violated that right when seizing Armstrong, we acknowledge that

this conclusion was not so settled at the time they acted such

that    “every       reasonable    official     would    have      understood   that”

tasing Armstrong was unconstitutional.                  

(quoting 

).

               To     be   sure,   substantial     case      law    indicated     that

Appellees were treading close to the constitutional line.                          As

discussed, we have previously held that tasing suspects after

they have been secured, see 

; 12 Bailey,




       12
        Meyers v. Baltimore County was decided after Appellees’
conduct in the instant case, but Meyers did not clearly
establish any right for the first time.    Rather in Meyers, we
found that the officer in question violated a right that had
been clearly established since, at least, Bailey v. Kennedy,
which was decided in 2003.     See 

-35
(citing 

).   Appellees in the instant
case, therefore, were on notice that tasing an individual who
(Continued)
                                           

,     and   that        punching       or    pepper   spraying

suspects     in    response    to    minimal,           non-violent     resistance,    see

; 

, constitute

excessive force.

             These    cases,      however,         are     susceptible      to   readings

which would not extend to the situation Appellees faced when

seizing Armstrong.          Unlike in Meyers and Bailey, Appellees did

not   continue      using   force      after       Armstrong      was    secured.     See

; 

.                          And unlike in

Park and Rowland, Appellant does not contend the officers in

question      initiated     the      excessive          force    without    warning     or

opportunity to cease any noncompliance.                         See 

; 

.                   It would not necessarily have

been clear to every reasonable officer that those cases applied

to force inflicted after warning an individual exhibiting non-

violent      resistance     to      desist        and     discontinued     before     that

individual was secured.

             A survey of other circuits’ case law confirms that

Appellees did not have sufficiently clear guidance to forfeit

qualified immunity.         Again, there were many decisions that ought

to have given Appellees pause.                    See 

“was   unarmed   and  effectively                   was      secured”       is    clearly
unconstitutional. 

                                             35
(taser use against individual exhibiting “unusual behavior” and

“shouting       gibberish[]      and . . .           expletives”            who    was       “unarmed,

stationary . . .,          [and]       facing        away       from        an    officer       at     a

distance of fifteen to twenty-five feet” constitutes excessive

force); 

(taser use when misdemeanant was

not   violent      and     did      not     try      to     flee       but        resisted       being

handcuffed constitutes excessive force); 

(“[I]t     was        unlawful        to     Taser         a     nonviolent,                 suspected

misdemeanant who was not fleeing or resisting arrest, who posed

little     to    no     threat        to    anyone’s           safety,       and        whose        only

noncompliance with the officer’s commands was to disobey two

orders to end her phone call to a 911 operator.”)

            But       other      cases      could         be     construed             to    sanction

Appellees’       decision      to     use   a    taser.          In     2004,          the    Eleventh

Circuit     held,       “use     of    [a]       taser         gun     to        effectuate          [an]

arrest . . .       was     reasonably           proportionate           to        the       difficult,

tense and uncertain situation” faced by a police officer when an

arrestee        “used      profanity,            moved         around            and        paced      in

agitation, . . .         yelled        at    [the         officer],”             and    “repeatedly

refused    to     comply       with . . .         verbal        commands.”                  Draper    v.

Reynolds, 

, 1278 (11th Cir. 2004)).                                   When reviewing

the law as of 2007, moreover, the Sixth Circuit found, “[c]ases

from this circuit and others, before and after May 2007, adhere

to this line: If a suspect actively resists arrest and refuses

                                                36
to be handcuffed, officers do not violate the Fourth Amendment

by using a taser to subdue him.”             

.           The

Hagans court proceeded to provide examples in which the Sixth

Circuit had held tasing reasonable simply because “[t]he suspect

refused to be handcuffed” or “the suspect . . . refused to move

his arms from under his body.”              

in short,

have     sometimes     distinguished       permissible       and   impermissible

tasing    based   on   facts    establishing      bare     noncompliance    rather

than facts establishing a risk of danger.                  Because Armstrong was

not complying with Appellees’ commands, these cases negate the

existence of any “consensus of cases of persuasive authority”

across our sister circuits “such that a reasonable officer could

not have believed that his actions were lawful.”                    

.

            We conclude, therefore, that Armstrong’s right not to

be tased while offering stationary and non-violent resistance to

a lawful seizure was not clearly established on April 23, 2011.

Indeed, two months after Appellees’ conduct in this case, one of

our colleagues wrote, “the objective reasonableness of the use

of     Tasers   continues      to   pose    difficult       challenges     to   law

enforcement agencies and courts alike. . . .                   ‘That the law is

still    evolving      is   illustrated     in     cases     granting    qualified

immunity for that very reason.’”                  

                                       37
(Davis, J., concurring) (quoting McKenney v. Harrison, 

, 362 (8th Cir. 2011) (Murphy, J., concurring)).

                                           D.

            This    ought     not    remain       an     evolving       field    of   law

indefinitely though.          “Without merits adjudication, the legal

rule[s]”    governing        evolving       fields       of     constitutional        law

“remain unclear.”         John C. Jeffries, Jr., Reversing the Order of

Battle in Constitutional Torts, 2009 Sup. Ct. Rev. 115, 120.

“What may not be quite so obvious, but is in fact far more

important, is the degradation of constitutional rights that may

result when . . . constitutional tort claims are resolved solely

on grounds of qualified immunity.”                     

is

most pernicious to rights that are rarely litigated outside the

context    of    § 1983    actions    subject       to       qualified    immunity    --

rights like the Fourth Amendment protection against excessive

force at issue here.          See 

               “For [such rights],

the repeated invocation of qualified immunity will reduce the

meaning of the Constitution to the lowest plausible conception

of its content.”        

            Rather than accept this deteriorative creep, we intend

this   opinion     to   clarify     when    taser      use    amounts    to     excessive

force in, at least, some circumstances.                  A taser, like “a gun, a

baton, . . . or other weapon,”                  

, is

expected    to     inflict    pain     or       injury       when   deployed.         It,

                                           38
therefore,    may       only     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.    The 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 physically

preventing    an    officer’s         manipulations        of    his   body.      Erratic

behavior and mental illness do not necessarily create a safety

risk either.       To the contrary, when a seizure is intended solely

to prevent a mentally ill individual from harming himself, the

officer   effecting        the        seizure    has   a    lessened         interest   in

deploying potentially harmful force.

           Where, during the course of seizing an out-numbered

mentally ill individual who is a danger only to himself, police

officers choose to deploy a taser in the face of stationary and

non-violent resistance to being handcuffed, those officers use

unreasonably excessive force.               While qualified immunity shields

the   officers     in     this     case    from    liability,          law    enforcement

officers should now be on notice that such taser use violates

the Fourth Amendment.

                                           IV.

             For    the    foregoing        reasons,        the    judgment      of     the

district court is

                                                                                AFFIRMED.

                                            39
WILKINSON, Circuit Judge, concurring in part:

      I am happy to concur in the judgment of affirmance and in

Part III.C of the majority opinion. Having resolved the case by

properly awarding judgment to defendants on qualified immunity

grounds, the majority had no need to opine on the merits of the

excessive force claim. In fact, it runs serious risks in doing

so.

      This was a close case, the very kind of dispute in which

judicial hindsight should not displace the officers’ judgmental

calls.     I   do   not     contend   that     the   officers’    behavior     was

impeccable here, but I do believe, with the district court, that

it was not the kind of action that merited an award of monetary

damages.

                                          I.

      These are difficult situations. It is undisputed that on

April 23, 2011, Armstrong had been off his medications for days

and was in an unpredictable and erratic state. J.A. 210-19. It

is undisputed that by the time Officer Sheppard arrived at the

scene,   Armstrong        was   engaged   in   self-destructive    behavior     --

eating grass, dandelions, and gauze, and burning his arms and

tongue with cigarettes. 

It is undisputed that the

police     obtained       an    involuntary    commitment   order    to      bring

Armstrong back to the hospital. 

It is undisputed

that Armstrong did not want to return to the hospital despite
his sister’s pleas to stop resisting authorities. 

It

is undisputed that Armstrong was a strong man, and weighed about

260 pounds. 

411. It is undisputed that before the

officers    ultimately      detained    Armstrong    they      did   not    have   an

opportunity    to    frisk     him   for     weapons.    

   It    is

undisputed    that    the    sign    post    Armstrong   gripped      was   near    a

trafficked intersection. 

It is undisputed that the

officers    “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.” Maj. Op. at 17.

It is undisputed that the officers applied graduated levels of

force -- first verbal commands and then a “soft hands” approach

-- prior to Officer Gatling’s use of his Taser. J.A. 514. It is

undisputed that Armstrong tried to kick the officers as they put

handcuffs     on     his    legs.     

   “The       calculus      of

reasonableness must embody allowance for the fact that police

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

situation” Graham v. Connor, 

, 396-97 (1989). That

pretty much describes the situation here.




                                        41
                                                II.

     Having       thoughtfully            resolved         the    appeal       on     qualified

immunity     grounds, *        the    majority         launches         into     an    extended

discussion on the merits of the excessive force claim. This is

so unnecessary. Sometimes it is best for courts not to write

large upon the world but to discharge our simple rustic duty to

decide the case.

     The   Supreme       Court       in    Pearson         v.   Callahan,      

(2009),    gave    us    the    discretion            to   do    just   that.       Pearson    is

admittedly a decision with a bit of back and forth, but its

salient contribution was to liberate the lower federal courts

from the onerous shackles of the Saucier v. Katz regime and

allow them to proceed directly to a qualified immunity analysis

without addressing the merits first. In this regard, Pearson

recognized    the    foremost         duty      of    courts      to    resolve       cases   and

controversies. 

That, at least, is what Article III

established us to do.

     In    fact,        proceeding         in    such       a    manner     is       often    the

preferable course. The majority says it must go further in order



     * Normally, “clearly established” law is found by looking to
Supreme Court cases and the cases in the circuit in which the
officers are located. See Marshall v. Rodgers, __ U.S. __, 

, 1450 (2013). My good colleagues range somewhat
further afield here, but I think doing so in this case in no way
affected the outcome.



                                                42
to provide clarity in future cases, Maj. Op. at 38-39, but that

clarity   is    often     illusory.           Today’s     prescription     may   not      fit

tomorrow’s      facts        and     circumstances.            Our   rather      abstract

pronouncements in one case may be of little assistance with the

realities and particulars of another.

      As the Supreme Court noted, “the rigid Saucier procedure

comes   with     a    price.       The    procedure         sometimes     results    in    a

substantial      expenditure             of    scarce       judicial      resources       on

difficult questions that have no effect on the outcome of the

case. There are cases in which it is plain that a constitutional

right is not clearly established but far from obvious whether in

fact there is such a right.” 

. So I

would respectfully prefer not to get into the first prong of the

Saucier analysis here. It is “far from obvious,” to use the

Court’s       term,     that       the        trial       court’s    conclusion          that

“[a]dditional         reasonable         force      was     appropriate    under     these

circumstances” was unsound. J.A. 767.

      Clarity is arguably most difficult to achieve in Fourth

Amendment cases because bright-line rules at most imperfectly

take account of the slight shifts in real-life situations that

can   alter    what    are    inescapably           close    judgment   calls.      As    the

Supreme Court noted,

      Although the first prong of the Saucier procedure is
      intended to further the development of constitutional
      precedent, opinions following that procedure often

                                               43
     fail to make a meaningful contribution to such
     development. For one thing, there are cases in which
     the constitutional question is so factbound that the
     decision provides little guidance for future cases.
     See Scott v. Harris, 

, 388 (2007) (BREYER,
     J., concurring) (counseling against the Saucier two-
     step protocol where the question is “so fact dependent
     that the result will be confusion rather than
     clarity”); Buchanan v. Maine, 

, 168 (C.A.1
     2006) (“We do not think the law elaboration purpose
     will be well served here, where the Fourth Amendment
     inquiry involves a reasonableness question which is
     highly idiosyncratic and heavily dependent on the
     facts”).

.

     My fine colleagues in the majority have done as good a job

as   can   be   expected    given   the     circumstances.        But     the    very

exemplary quality of the effort serves to illustrate the perils

of the enterprise. The majority notes “that different seizures

present different risks of danger,” Maj. Op. at 24, but fails to

recognize that the spectrum of risk presented cannot be easily

sketched by an appellate court. It is hard to disagree with the

majority’s      highly   generalized      assertion   that        Taser    use     is

unwarranted “where an unrestrained arrestee, though resistant,

presents   no    serious   safety   threat.”    

   course,       what

conduct qualifies as “resistant,” and what rises to the level of

a “serious safety threat” is once again dependent on the actual

and infinitely variable facts and circumstances that confront

officers on their beat.




                                       44
        Tasers came into widespread use for a reason. They were

thought preferable to far cruder forms of force such as canines,

sprays, batons, and choke-holds, and it was hoped that their use

would    make    the     deployment           of   lethal       force      unnecessary          or       at

least a very last resort. None of this of course justifies their

promiscuous use. The majority “tie[s] permissible taser use to

situations       that     present        some       exigency        that     is     sufficiently

dangerous to justify the force.” Maj. Op. at 23. But with all

due   respect,     that       abstract         formulation          will    be     of    less     than

limited help to officers wondering what exactly they may and may

not do.

      We are told further that the officers, though armed with a

civil    commitment          order,      do    not       possess      the    same        degree          of

latitude with regard to a mentally ill person as with someone

whom there is reason to believe has committed a crime. 

   All    well     and      good,      but       the   majority       then       notes     that

“[m]ental       illness,      of    course,         describes        a     broad       spectrum          of

conditions and does not dictate the same police response in all

situations.”       

  Again,          what    may      seem     a     comforting

appellate    nostrum         is    of    limited         utility     to     those       faced     with

volatile situations far removed from the peaceful confines of

appellate chambers. The majority goes on to note that “in some

circumstances      .     .    .    increasing           the   use    of     force       may   .      .    .

exacerbate       the      situation.”              

           marks

                                                   45
omitted). But what those circumstances are neither my colleagues

nor I can really say.

      I finally cannot agree that the plaintiff here posed no

real danger. He certainly posed a danger to himself having been

off medication and engaging in self-destructive behaviors to the

point   that     his   sister    was    pleading        for    her   brother’s        prompt

return to the hospital where he might receive some help. As for

the danger to others, it was hardly unlikely that the plaintiff,

a   sizeable     and   unrestrained      individual,           would     bolt    into    the

street and cause a traumatic accident for motorists who, if not

themselves       injured,   would      regret      the   harm      inflicted      on    this

pedestrian for years to come. I say this not to contend that the

case was easy, but that it was hard. The district court rightly

recognized that its intrinsic difficulty afforded no reason to

deliver these officers an unnecessary rebuke.

                                         III.

      The   majority     has     left    it       all   up    in   the   air.    And     its

approach    to    this   case    is    not    without        consequence.       The    great

majority    of    mentally      ill    persons      pose      no   serious      danger    to

themselves or others and the challenge of society is to help

these good people lead more satisfying lives. A smaller subset

of the mentally ill do pose the greatest sort of danger, not

only to themselves but to large numbers of people as the string

of mass shootings in this country will attest.

                                             46
      It is difficult sometimes for even seasoned professionals

to predict which is which, not to mention officers and others

with more limited training. And yet it is important in this area

that law not lose its preventive aspect. It can be heartbreaking

to wait until the damage is done. Delivering vague proclamations

about do’s and don’ts runs the risk of incentivizing officers to

take no action, and in doing so to leave individuals and their

prospective victims to their unhappy fates. Law enforcement will

learn   soon    enough   that    sins   of    omission    are   generally     not

actionable.     See   Deshaney    v.    Winnebago   Cty.    Dep’t     of   Social

Services, 

(1989). And in the face of nebulae from

the   courts,   the   natural     human      reaction    will   be   to    desist.

Perhaps this is what we mean to achieve, but over-deterrence

carries its own risks, namely that those who badly need help

will receive no help, and we shall be the poorer for it.




                                        47