No. 99-1977 

In the Supreme Court of the United States 

DONALD SAUCIER, PETITIONER 

v. 

ELLIOT M. KATZ AND IN DEFENSE OF ANIMALS 

ON PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

PETITION FOR A WRIT OF CERTIORARI 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

Acting Assistant Attorney 

General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

JEFFREY A. LAMKEN 

Assistant to the Solicitor 

General 

BARBARA L. HERWIG 
EDWARD HIMMELFARB 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTIONS PRESENTED 

1. Whether, in a case alleging the use of constitu- 
tionally excessive force, the test for qualified immunity 
and the reasonableness test under the Fourth Amend- 
ment are identical, such that a finding of unreasonable 
force under the Fourth Amendment necessarily pre- 
cludes the officer from being entitled to qualified 
immunity. 

2. Whether the court of appeals erred in concluding, 
based on the facts known to it “at this stage of the 
case,” that petitioner’s use of force in arresting respon- 
dent, which consisted of carrying respondent from the 
crowd to a waiting van and pushing him inside, without 
injuring him or placing him in any pain, so clearly 
exceeded the amount of force permitted by the Fourth 
Amendment as to warrant denial of qualified immunity. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Constitutional provision involved ............................................... 
1 

Statement ........................................................................................ 2 

Reasons for granting the petition ............................................... 
10 

Conclusion ....................................................................................... 30 

Appendix A ..................................................................................... 

1a 

Appendix B ..................................................................................... 

17a 

Appendix C ..................................................................................... 

35a 

Appendix D ..................................................................................... 

53a 

Appendix E ..................................................................................... 
65a 

TABLE OF AUTHORITIES 

Cases: 

Alexander v. County of Los Angeles, 64 F.3d 1315 

(9th Cir. 1995) ......................................................................... 

12 

Anderson v. Creighton, 483 U.S. 635 (1987) .............. 

passim 

Bass v. Robinson, 167 F.3d 1041 (6th Cir. 1999) ............... 

12 

Bivens v. Six Unknown Named Agents of Fed. 

Bureau of Narcotics, 403 U.S. 388 (1971) ..................... 

4 

Brown v. Glossip, 878 F.2d 871 (5th Cir. 1989) ............. 

13, 22 

Curd v. City Court, 141 F.3d 839 (8th Cir.), cert. 

denied, 525 U.S. 888 (1998) ................................................... 

26 

Ellis v. Wynalda, 999 F.2d 243 (7th Cir. 1993) ............. 

14, 24 

Finnegan v. Fountain, 915 F.2d 817 (2d Cir. 

1990) ............................................................................... 

13, 14, 19 

Frazell v. Flanigan, 102 F.3d 877 (7th Cir. 1996) ............. 

14 

Gold v. City of Miami, 121 F.3d 1442 (11th Cir. 

1997), cert. denied, 525 U.S. 870 (1998) .............................. 

14 

Graham v. Connor, 490 U.S. 386 (1989) ................... 

8, 17, 18, 

26, 27, 29 
Greer v. Spock, 424 U.S. 828 (1976) .................................... 2 

(III) 

IV 

Cases—Continued: Page 

Hammer v. Gross, 932 F.2d 842 (9th Cir.) (en banc), 

cert. denied, 502 U.S. 980 (1991) ......................................... 

7, 8 

Harlow v. Fitzgerald, 457 U.S. 800 (1982) .......................... 

10 

Headwaters Forest Defense v. County of Humboldt, 

No. 98-17250, 2000 WL 531004 (9th Cir. May 4, 

2000) ..................................................................................... 

15, 20 

Hinton v. City of Elwood, 997 F.2d 774 (10th Cir. 

1993) ......................................................................................... 26 

Holt v. Artis, 843 F.2d 242 (6th Cir. 1988) .......................... 

12 

Hunter v. Bryant, 502 U.S. 224 (1991) ......... 

11, 22, 23, 25, 29 

Johnson v. United States, 333 U.S. 10 (1948) .................... 

21 

Jones v. City of Dothan, 121 F.3d 1456 (11th Cir. 

1997) ......................................................................................... 26 

Karnes v. Skrutski, 62 F.3d 485 (3d Cir. 1995) .................. 

17 

Landrum v. Moats, 576 F.2d 1320 (8th Cir.), cert. 

denied, 439 U.S. 912 (1978) ................................................. 

13-14 

Malley v. Briggs, 475 U.S. 335 (1986) ................ 

10, 11, 21, 27 

McGruder v. Heagwood, 197 F.3d 918 (8th Cir. 

1999) ......................................................................................... 14 

Mitchell v. Forsyth, 472 U.S. 511 (1985) ............................ 

22 

Napier v. Town of Windham, 187 F.3d 177 (1st Cir. 

1999) ..................................................................................... 

13, 15 

Nelson v. County of Wright, 162 F.3d 986 (8th Cir. 

1998) ......................................................................................... 14 

Nolin v. Isbell, 207 F.3d 1253 (11th Cir. 2000) .................. 

26 

Oliveira v. Mayer, 23 F.3d 642 (2d Cir. 1994), cert. 

denied, 513 U.S. 1076 (1995) ............................................. 

14, 17 

Payton v. New York, 445 U.S. 573 (1980) ........................... 

21 

Post v. City of Fort Lauderdale, 7 F.3d 1552 (1993), 

amended, 14 F.3d 583 (11th Cir. 1994) ............................... 

19 

Priester v. City of Riviera Beach, 208 F.3d 919 

(11th Cir. 2000) ................................................................... 

19, 24 

Rowland v. Perry, 41 F.3d 167 (4th Cir. 1994) .................. 

14 

Roy v. Inhabitants of City of Lewiston, 42 F.3d 691 

(1st Cir. 1994) ...................................................................... 15, 23 

V 

Cases—Continued: Page 

Scott v. District of Columbia, 101 F.3d 748 (D.C. 

Cir. 1996), cert. denied, 520 U.S. 1231 (1997) .................... 

13 

Seekamp v. Michaud, 109 F.3d 802 (1st Cir. 1997) .......... 

25 

Slattery v. Rizzo, 939 F.2d 213 (4th Cir. 1991) ............. 

13, 14, 

15, 22 

Snyder v. Trepagnier, 142 F.3d 791 (5th Cir. 1998), 
cert. granted, 525 U.S. 1098 (1999), cert. dismissed, 

526 U.S. 1083 (1999) ........................................................... 

10, 15 

Steagald v. United States, 451 U.S. 204 (1981) .................. 

21 

Street v. Parham, 929 F.2d 537 (10th Cir. 1991) ........... 

12, 16 

Tennessee v. Garner, 471 U.S. 1 (1985) ................................ 

19 

Thomas v. Roach, 165 F.3d 137 (2d Cir. 1999) .................. 

14 

United States v. Albertini, 472 U.S. 675 (1985) ................ 

2 

Wilson v. Layne, 526 U.S. 603 (1999) .................................. 

21 

Wong Sun v. United States, 371 U.S. 471 (1963) .............. 

21 

Constitution and rule: 

U.S. Const.: 

Amend. I .................................................................................. 

4 

Amend. IV ......................................................................... 

passim 

Amend. V ................................................................................ 

17 

Fed. R. Civ. P. 56(e) .................................................................. 

28 

Miscellaneous: 

Black’s Law Dictionary (6th ed. 1990) ................................. 28 

In the Supreme Court of the United States 

No. 99-1977 

DONALD SAUCIER, PETITIONER 

v. 

ELLIOT M. KATZ AND IN DEFENSE OF ANIMALS 

ON PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

PETITION FOR A WRIT OF CERTIORARI 

The Solicitor General, on behalf of Donald Saucier, 
petitions for a writ of certiorari to review the judgment 
of the United States Court of Appeals for the Ninth 
Circuit in this case. 

OPINIONS BELOW 

The opinion of the court of appeals (App., infra, 1a- 
16a) is reported at 194 F.3d 962. The opinions of the 
district court (App., infra, 17a-64a) are unreported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
October 22, 1999. A petition for rehearing was denied 
on January 10, 2000 (App., infra, 65a-66a). On March 
30, 2000, Justice O’Connor extended the time within 
which to file a petition for a writ of certiorari to May 9, 
2000, and on May 1, 2000, Justice O’Connor again ex- 
tended the time for filing a petition for a writ of certio- 
rari, this time to and including June 8, 2000. The juris- 
diction of this Court is invoked under 28 U.S.C. 1254(1). 

CONSTITUTIONAL PROVISION INVOLVED 

The Fourth Amendment to the United States Con- 
stitution provides: 

(1) 

2 
The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable 
searches and seizures, shall not be violated, and no 
Warrants shall issue, but upon probable cause, 
supported by Oath or affirmation, and particularly 
describing the place to be searched, and the persons 
or things to be seized. 

U.S. Const. Amend. IV. 

STATEMENT 

1. Respondent Elliot Katz,1 an animal rights activist, 
brought this Fourth Amendment excessive force claim 
following his arrest at the Presidio military post in San 
Francisco. The relevant facts are, for the most part, 
not disputed.2 On September 24, 1994, Vice President 
Gore and other speakers gave a special presentation at 
the Presidio to celebrate the conversion of that facility, 
which was then an Army base, into a national park the 
following week. App., infra, 3a. The public was invited 
to attend. Ibid. 

On the morning of the presentation, respondent 
arrived at the Presidio early, intending to display a 
banner protesting possible use of the Letterman Hos- 
pital in the Presidio for experimentation involving ani- 
mals. App., infra, 3a, 18a. Perhaps aware that the 
Army prohibits the display of political banners on 
military bases like the Presidio,3 respondent kept his 

1 The suit was also brought by respondent In Defense of Ani- 
mals, an organization of which Katz is president. We use the word 
“respondent” to refer to respondent Katz alone, except where con- 
text indicates otherwise. 

2 Because the case arises on petitioner’s motion for summary 
judgment, we present any disputed facts in the light most favor- 
able to respondent. 

3 See Greer v. Spock, 424 U.S. 828 (1976); United States v. Al- 
bertini, 472 U.S. 675, 684-686 (1985). Although the Army handed 

3 

banner concealed under his jacket as he entered the 
base and walked to the seating area near the speaking 
platform. Resp. Dep. 32. Respondent sat down in the 
front row; at some point, he removed the banner from 
under his jacket and held it closed on his lap. Id. at 32, 
35-36; App., infra, 4a. 

During Vice President Gore’s speech, respondent 
walked from his front-row seat to the waist-high bar- 
rier that separated the spectators from the Vice Presi- 
dent and began to unfurl his roughly 4-foot-by-3-foot 
banner. App., infra, 4a, 19a, 22a. The banner read: 
“Please Keep Animal Torture Out of Our National 
Parks.” Id. at 4a, 19a. As Katz unfurled the banner and 
attempted to place it on the barrier, someone “grabbed 
[him] from behind, and somebody else tore the banner 
away.” Id. at 4a, 24a. The two individuals were peti- 
tioner Donald Saucier and Sergeant Steven Parker, 
who were serving as military police. Id. at 4a. Peti- 
tioner and Parker each took one of respondent’s arms 
and quickly removed him from the seating area. Ac- 
cording to respondent, they “started sort of picking me 
up and kind of walking me out, kind of like very 
hurriedly.” Id. at 4a, 25a. 

Respondent claims that he was then “shoved” into a 
military police van located behind the seating area. 
App., infra, 4a, 25a. According to respondent, he nearly 
fell headlong into the van and was almost injured. Ibid. 
But respondent did not fall headlong into the van. Nor 
was he injured. To the contrary, respondent caught 
himself and avoided injury. Ibid. After being driven to 

out fliers to potential protestors to advise them of the prohibition, 
Lee Dep. 24, 30, respondent claims that he never received written 
notice. Respondent, however, knew that other visitors to the base 
had been asked to leave when they attempted to circulate handbills 
and engage in other political activities. Resp. Dep. 67-68. 

4 

a military police station, respondent was briefly 
detained. He was then released, and he drove himself 
home. Id. at 4a-5a. 

The events at the Presidio were covered by the news 
media. As a result, much of respondent’s arrest was 
broadcast on the local news. A videotape of the rele- 
vant portions of the broadcasts, which is part of the 
record in this case, is being lodged with the Court. 

2. Respondent brought this action against petitioner 
and other officials pursuant to Bivens v. Six Unknown 
Named Agents of Federal Bureau of Narcotics, 403 
U.S. 388 (1971), alleging that his arrest violated his 
First and Fourth Amendment rights. Respondent’s 
First Amendment claim and his claim that he was un- 
lawfully arrested without probable cause were rejected 
by the district court on qualified immunity grounds, and 
are no longer at issue.4 This petition concerns his claim 

4 With respect to the First Amendment claims, the district 
court concluded that, given “the transitional state of the Presidio 
on September 24, 1994”—the Presidio was still an Army post—it 
was not clear whether the Presidio could be considered a public 
forum. App., infra, 5a, 44a. As a result, the court explained, “the 
rights of protestors at the Presidio were not well established on 
the date in question, [and] a reasonable military officer could have 
concluded that preventing protests at the base was Constitu- 
tional.” Ibid. For the same reason, the district court concluded 
that summary judgment was appropriate with respect to the claim 
of unlawful arrest. The court explained that, because a reasonable 
officer could have believed that prohibiting protests on the base 
was constitutional, a reasonable officer also could have believed 
that respondent was about to commit a crime when he approached 
the speaking area and attempted to unfurl a protest banner. Id. at 
5a, 23a. Finally, the district court concluded that respondent 
lacked standing to seek declaratory and injunctive relief. Id. at 
53a-64a. Respondent sought to appeal those rulings, but the court 
of appeals dismissed the appeal for lack of jurisdiction, Katz v. 
United States, No. 98-16121 (9th Cir. Sept. 21, 1998), and respon- 
dent did not seek further review. 

5 

that petitioner violated the Fourth Amendment by 
using constitutionally excessive force to arrest him.5 
The district court denied petitioner’s motion for sum- 
mary judgment on that claim, finding disputed ques- 
tions of fact relevant to both the merits and the 
question of qualified immunity. App., infra, 23a-27a. 

The court first examined whether summary judg- 
ment was appropriate on the merits, i.e., whether or not 
the force petitioner used was “ ‘objectively reasonable’ 
in light of the facts and circumstances confronting 
[him], without regard to [his] underlying intent or moti- 
vation.” App., infra, 24a. The objective reasonableness 
of force, the district court stated, depends on “the 
severity of the crime at issue, whether the suspect 
poses an immediate threat to the safety of the officers 
or others, and whether he is actively resisting arrest or 
attempting to evade arrest by flight.” Ibid. After re- 
viewing the descriptions of the events offered by 
petitioner, Sergeant Parker, and respondent, id. at 24a- 
27a, and the “videotape of television news coverage of 
the events at the Presidio conversion ceremony,” id. at 
27a, the district court concluded that there was some 
dispute as to the nature of the risk respondent pre- 
sented to others. Ibid. The court observed: 

Viewed in a light most favorable to [respondent], 
the videotape shows two officers, on each side of 
[respondent], removing him from the crowd and 

5 Respondent asserted a similar claim against the other mili- 
tary police officer who participated in the arrest, Sergeant Parker, 
and against two supervisory officials, General Glynn C. Mallory 
and Major Corbin Lee. Parker was never served with the com- 
plaint, App., infra, 5a, 38a, and the district court granted Mallory’s 
and Lee’s motions for summary judgment because respondent 
produced no evidence linking them to the disputed use of force, id. 
at 30a-34a. 

6 

carrying or pulling him toward the van. Once they 
arrive at the van, the officers push [respondent] into 
the van. Given the nature of the crime at issue and 
the circumstances surrounding the incident, the 
Court cannot conclude that the use of force was rea- 
sonable as a matter of law. 

Ibid. Accordingly, the district court denied summary 
judgment on the merits, concluding that there was a 
triable issue of fact as to whether petitioner used exces- 
sive force to arrest respondent. 

The district court also denied petitioner’s motion for 
summary judgment on the issue of qualified immunity. 
App., infra, 27a-30a. Following a “two-prong” inquiry 
mandated by Ninth Circuit precedent, the district court 
first concluded that the law regarding the use of force 
was clearly established at the time the challenged 
conduct occurred. Id. at 28a-29a & n.1. Turning to the 
“next step” of the inquiry, the district court examined 
whether “a reasonable officer could have believed that” 
petitioner “acted lawfully with regard to the degree of 
force used to remove [respondent] from the crowd and 
place him inside the van.” Id. at 29a. In “the Fourth 
Amendment context,” the district court held, “the 
qualified immunity inquiry is the same as the inquiry 
made on the merits.” Id. at 30a. In this case, the dis- 
trict court explained, it had already found that there 
were disputed facts precluding summary judgment on 
whether petitioner’s use of force was reasonable. Ibid. 
It necessarily follows, the court declared, that peti- 
tioner is “not entitled to summary judgment on the 
basis of qualified immunity.” Ibid. 

3. The court of appeals affirmed. App., infra, 1a-16a. 
The court first rejected the government’s contention 
that it was error to “equate[] the reasonableness test 
for the defense of qualified immunity with the reason- 

7 

ableness test for the merits of an excessive force claim.” 
Id. at 8a. Like the district court, the court of appeals 
explained that, in the Ninth Circuit, the qualified 
immunity inquiry has two prongs. The first asks 
whether the legal standard or formula governing the 
officer’s conduct is clearly established. The second asks 
whether a reasonable officer, applying that standard, 
could have believed his conduct was lawful. Ibid. 

In excessive force cases, the court stated, the Fourth 
Amendment reasonableness test and the second prong 
of the qualified immunity analysis both focus “on the 
objective reasonableness of the officer’s conduct.” 
App., infra, 10a. “Because of this parity,” the court 
concluded, “we have repeatedly held that the inquiry as 
to whether officers are entitled to qualified immunity 
for the use of excessive force is the same as the inquiry 
on the merits of the excessive force claim.” Ibid. (inter- 
nal quotation marks omitted). The court summarized: 

If genuine issues of material fact as to the amount of 
force used, or the circumstances that might justify 
the amount of force used, prevent a court from con- 
cluding as a matter of law that the force was objec- 
tively reasonable, then a material issue of fact nec- 
essarily exists as to whether an objectively rea- 
sonable officer could have believed the amount of 
force used was lawful. 

Id. at 12a. 

The court of appeals rejected the government’s con- 
tention that equating the qualified immunity inquiry 
and the Fourth Amendment reasonableness test is 
inconsistent with that court’s prior en banc decision in 
Hammer v. Gross, 932 F.2d 842, 850 (9th Cir.), cert. 
denied, 502 U.S. 980 (1991), and this Court’s decision in 
Anderson v. Creighton, 483 U.S. 635, 639 (1987). App., 
infra, 12a-14a. In Anderson, this Court rejected the 

8 

argument that an officer who conducts an unreasonable 
search in violation of the Fourth Amendment cannot, 
by definition, have behaved reasonably so as to be en- 
titled to qualified immunity. 483 U.S. at 643. In Ham- 
mer, the Ninth Circuit rejected the argument that “an 
officer who has used unreasonable force cannot, by 
definition, have acted reasonably” so as to be entitled to 
qualified immunity. 932 F.2d at 850 (emphasis added). 
Noting that this Court had rejected “a similar conten- 
tion” in Anderson, the Hammer court explained: 

Whether a search is “unreasonable” within the 
meaning of the Fourth Amendment is an entirely 
different question from whether an officer reasona- 
bly could have believed his actions lawful under the 
Fourth Amendment. Anderson, 483 U.S. at 643-44 

* * *. To accept Hammer’s contention would be to 
eliminate all possibility of immunity for violations of 
the Fourth Amendment, an unacceptable outcome. 

Ibid. 

The court of appeals distinguished Hammer as ad- 
dressing the situation, not present here, where the 
governing legal standard was not “clearly established” 
because it changed from “shock[s] the conscience” to 
“objective unreasonableness” when this Court decided 
Graham v. Connor, 490 U.S. 386 (1989), after the con- 
duct in question had taken place. App., infra, 13a-14a. 
In a footnote, the court of appeals similarly distin- 
guished this Court’s decision in Anderson. Id. at 13a- 
14a n.4. That decision, the court of appeals stated, pri- 
marily “focuses on the proper formulation of the ‘clearly 
established’ ” or “first prong” of the qualified immunity 
inquiry; it does “not address the application of the 
second prong of the qualified immunity analysis” (i.e., 
whether a reasonable officer could believe the relevant 

9 

conduct lawful), the court continued, “let alone its 
application in excessive force cases.” Ibid. 

Having concluded that the qualified immunity in- 
quiry does not differ from the test of reasonableness 
under the Fourth Amendment itself, the Ninth Circuit 
then turned to whether “the amount of force [peti- 
tioner] used in arresting [respondent] was so minimal 
that it was per se reasonable.” App., infra, 14a. “ The 
question of the reasonableness of force,” the court of 
appeals declared, “is usually a question of fact for the 
jury,” and summary judgment is appropriate only 
“when, viewing the evidence in the light most favorable 
to [the plaintiff], the evidence compels the conclusion 
that [the officer’s] use of force was reasonable.” Id. at 
14a-15a n.5 (internal quotation marks omitted). In this 
case, the court of appeals concluded, the force used was 
not so minimal as to compel a finding of reasonableness. 

The court noted that, according to respondent, peti- 
tioner and Sergeant Parker had seized him from behind 
“without warning or speaking to him,” carried him 
about fifty feet, and forcefully pushed him inside the 
van. App., infra, 15a. On the whole, the court appeared 
to conclude, that constituted a disproportionate re- 
sponse. “Unfurling a banner,” the court of appeals 
stated, is not a severe crime; respondent was a sixty- 
year-old man wearing a leg brace; and, “[f]rom all that 
appears at this stage of the case,” respondent was not 
“armed or dangerous,” and “did not pose an immediate 
threat to the safety of the officers or anyone else.” Ibid. 
The court concluded that summary judgment was 
properly denied, holding that, viewing the facts most 
favorably to respondent, “no reasonable officer could 
have believed that the amount of force used was 
lawful.” Ibid. The court of appeals denied rehearing en 
banc. Id. at 65a-66a. 

10 

REASONS FOR GRANTING THE PETITION 

Last Term, this Court granted the petition for a writ 
of certiorari in Snyder v. Trepagnier, cert. granted, 525 
U.S. 1098 (1999) (No. 98-507), to resolve whether, in an 
excessive force case under the Fourth Amendment, the 
same legal standard governs both the question of 
qualified immunity and the question of reasonableness 
under the Fourth Amendment itself. That case, how- 
ever, settled before decision. See 526 U.S. 1083 (1999) 
(dismissing the writ). This case presents the same 
issue. In conflict with the decisions of at least six other 
circuits, the court of appeals below held that the test for 
qualified immunity and the test of reasonableness un- 
der the Fourth Amendment are identical, App., infra, 
2a, 8a, 10a, 16a, and further concluded that qualified 
immunity must be denied because the force petitioner 
employed was not “so minimal that it was per se rea- 
sonable,” id. at 14a. The Ninth Circuit’s application of 
the doctrine of qualified immunity to the facts of this 
case, moreover, effectively creates a de facto no-force 
rule for many arrests, and invites inappropriate second- 
guessing of an officer’s on-the-spot judgment. Further 
review is therefore warranted. 

1. In Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), 
this Court held that qualified immunity precludes a 
government official from being held liable for uncon- 
stitutional conduct unless the official violates “clearly 
established statutory or constitutional rights of which a 
reasonable person would have known.” The qualified 
immunity inquiry is an objective one. Immunity may be 
denied only “if, on an objective basis, it is obvious that 
no reasonably competent officer would have concluded” 
that the actions were constitutional. Malley v. Briggs, 
475 U.S. 335, 341 (1986). Thus, “if officers of reasonable 

11 

competence could disagree on” the lawfulness of the 
conduct, “immunity should be recognized.” Id. at 341. 

In Anderson v. Creighton, 483 U.S. at 639, this Court 
clarified that immunity may not be denied simply 
because “the relevant ‘legal rule’ ” was “clearly estab- 
lished” at a high “level of generality.” Thus, the Court 
explained, it is not enough to show that the right to be 
free from unreasonable searches and seizures was 
“clearly established,” or that the applicable legal stan- 
dard or formula had been settled by the courts. Ibid. 
To the contrary: 

[T]he right the official is alleged to have violated 
must have been ‘clearly established’ in a more par- 
ticularized, and hence more relevant, sense: The 
contours of the right must be sufficiently clear that 
a reasonable official would understand that what he 
is doing violates that right. 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. 

Id. at 640 (emphasis added). The qualified immunity 
standard thus “ ‘gives ample room for mistaken judg- 
ments’ by protecting ‘all but the plainly incompetent or 
those who knowingly violate the law.’ ” Hunter v. 
Bryant, 502 U.S. 224, 229 (1991) (per curiam) (quoting 
Malley, 475 U.S. at 343, 341). 

In Anderson, this Court also declined to carve out an 
exception to the qualified immunity doctrine for Fourth 
Amendment claims, even though both the qualified 
immunity inquiry and the Fourth Amendment itself 
incorporate reasonableness tests. 483 U.S. at 643-646. 
The Court explained that it had previously applied 
qualified immunity in Fourth Amendment cases, id. at 

12 

643; rejected arguments based on the coincidence of 
language in the qualified immunity test and the Fourth 
Amendment (i.e., that both use the word “reasonable”), 
ibid.; and declared that law enforcement officers who 
reasonably, but mistakenly, believe their conduct to be 
consistent with the Fourth Amendment’s requirement 
of reasonableness “should no more be held personally 
liable in damages than should officials making analo- 
gous determinations in other areas of law,” id. at 644. 

a. Notwithstanding Anderson, the courts of appeals 
are divided on whether the qualified immunity inquiry 
is superfluous in Fourth Amendment excessive force 
cases. In the decision below, the Ninth Circuit held 
that it is. “[T]he inquiry as to whether officers are 
entitled to qualified immunity for the use of excessive 
force,” that court held, “is the same as the inquiry on 
the merits of the excessive force claim.” App., infra, 
10a (quoting Alexander v. County of Los Angeles, 64 
F.3d 1315, 1322 (9th Cir. 1995)).6 That holding accords 
with decisions of the Sixth and Tenth Circuits. See 
Street v. Parham, 929 F.2d 537, 540, 541 n.2 (10th Cir. 
1991) (once factfinder determines that “the force used 
was unnecessary under the circumstances, any question 
of objective reasonableness” for qualified immunity 
purposes “has also been foreclosed”); Holt v. Artis, 843 
F.2d 242, 246 (6th Cir. 1988) (similar); Bass v. 
Robinson, 167 F.3d 1041, 1051 (6th Cir. 1999) (similar).7 

6 See also App., infra, 2a (“[W]e have held that the reasonable- 
ness inquiry on the merits of a Fourth Amendment excessive force 
claim is the same as the reasonableness inquiry posed by a quali- 
fied immunity defense.”); id. at 8a (“[W]e have equated the reason- 
ableness test for the defense of qualified immunity with the rea- 
sonableness test for the merits of an excessive force claim.”); id. at 
16a (similar). 

7 The D.C. Circuit has also stated that “whether an officer used 
excessive force and whether an officer is entitled to qualified im- 

13 

The First, Second, Fourth, Fifth, Eighth and Elev- 
enth Circuits, however, have reached the opposite con- 
clusion. Those courts of appeals have concluded that, in 
excessive force cases, the test for qualified immunity 
differs from the substantive test of reasonableness 
under the Fourth Amendment. Finnegan v. Fountain, 
915 F.2d 817, 822-823 (2d Cir. 1990) (even if officer 
exerts “constitutionally excessive force,” qualified im- 
munity is appropriate unless it “should have been 
apparent” that the “particular degree of force under the 
particular circumstances was excessive”); Slattery v. 
Rizzo, 939 F.2d 213, 215 (4th Cir. 1991) (“There is no 
principled reason not to allow a defense of qualified 
immunity in an excessive use of force claim.”); Brown v. 
Glossip, 878 F.2d 871, 873 (5th Cir. 1989) (“We can dis- 
cern no principled distinction between the availability 
of qualified immunity as a defense to unreasonable 
searches * * * under the fourth amendment and as a 
defense to an excessive force claim also grounded in the 
fourth amendment.”); Napier v. Town of Windham, 187 
F.3d 177, 188 (1st Cir. 1999) (because officer “could 
have reasonably believed ” that the force “was justified 
and lawful,” he was, “under the standard enunciated in 
Anderson, * * * entitled to qualified immunity * * *, 
whether [there was] a viable Fourth Amendment 
violation or not”); Landrum v. Moats, 576 F.2d 1320, 

munity” is “determined according to a single standard.” Scott v. 
District of Columbia, 101 F.3d 748, 759 (1996), cert. denied, 520 
U.S. 1231 (1997). The actual standard used by the D.C. Circuit, 
however, implicitly recognizes the possibility of different outcomes 
regarding excessiveness under the Fourth Amendment on the one 
hand and the reasonableness of an officer’s belief in the lawfulness 
of the conduct on the other. In particular, the D.C. Circuit asks 
whether “the excessiveness of the force is so apparent that no 
reasonable officer could have believed in the lawfulness of his 
actions.” Ibid. (emphasis added; quotation marks omitted). 

14 

1327-1328 (8th Cir.) (“The defense of good faith is not 

* * * inapplicable to an action based on excessive 
force.”), cert. denied, 439 U.S. 912 (1978);8 Gold v. City 
of Miami, 121 F.3d 1442, 1446 (11th Cir. 1997) (lawful- 
ness of non-deadly force analyzed on a “case-by-case 
basis,” but qualified immunity appropriate “unless ap- 
plication of the [excessive force] standard would inevi- 
tably lead a reasonable officer in the defendant’s posi- 
tion to conclude that the force was unlawful”) (internal 
quotation marks omitted), cert. denied, 525 U.S. 870 
(1998).9 That division in appellate authority, repeatedly 

8 See also McGruder v. Heagwood, 197 F.3d 918, 920 (8th Cir. 
1999) (“objectively reasonable police officers could have believed 
that they were not using excessive force, though this belief may 
have been erroneous”). Other Eighth Circuit cases, however, have 
treated the issue as if it were unresolved. See, e.g., Nelson v. 
County of Wright, 162 F.3d 986, 990 n.5 (1998) (declining to “ana- 
lyze whether there is any conceptual difference in the standards” 
for qualified immunity and Fourth Amendment reasonableness). 

9 The court of appeals in this case erroneously suggested (App., 
infra, 11a) that the Second, Fourth, and Seventh Circuits equate 
the qualified immunity and Fourth Amendment merits inquiries in 
excessive force cases. The Second Circuit expressly reached the 
opposite conclusion in Finnegan, 915 F.2d at 822-824, and reaf- 
firmed that conclusion again in Oliveira v. Mayer, 23 F.3d 642, 648 
(2d Cir. 1994), cert. denied, 513 U.S. 1076 (1995). Although the 
court of appeals in this case cited Thomas v. Roach, 165 F.3d 137 
(2d Cir. 1999), for the contrary position, App., infra, 11a, Thomas 
does not pass on the issue. The Fourth Circuit has also rejected 
the claim that the inquiries are identical, Slattery, 939 F.2d at 215, 
and nothing in Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994) 
(cited App., infra, 11a) states otherwise. Nor does the Seventh 
Circuit necessarily equate the two inquiries. Frazell v. Flanigan, 
102 F.3d 877, 886-887 (7th Cir. 1996) (cited App., infra, 11a), com- 
ments favorably on equating them in the “somewhat unique” con- 
text of that case, but there is contrary Seventh Circuit authority as 
well. For example, Ellis v. Wynalda, 999 F.2d 243, 246 n.2 (7th 
Cir. 1993), specifically declines to equate the inquiries, declaring 

15 

10 is sufficiently well 
developed that, just last Term, this Court granted 
certiorari to resolve it. See Snyder v. Trepagnier, 525 
U.S. 1098 (1999) (No. 98-507). Because the parties set- 
tled Snyder just before argument, however, the peti- 
tion was dismissed, 526 U.S. 1083 (1999), and the 
conflict remains unresolved. 

b. The court of appeals’ decision in this case, more- 
over, is inconsistent with this Court’s decision in 
Anderson v. Creighton, supra. The Ninth Circuit and 
the other courts of appeals that equate the qualified 
immunity inquiry with the reasonableness test of the 
Fourth Amendment rely on the fact that both inquiries 

that “the doctrine of qualified immunity still serves an important 
purpose in cases of alleged excessive force.” Nor has the First Cir- 
cuit equated the two inquiries. The language from Roy v. Inhabi- 
tants of City of Lewiston, 42 F.3d 691, 695 (1st Cir. 1994), quoted 
App., infra, 11a, refers to the fact that, in that case, the result 
would not have changed “even if the qualified immunity defense 
had not been raised.” 42 F.3d at 695. Roy itself, however, ac- 
knowledges that “substantive liability and qualified immunity are 
two separate questions,” ibid., and the First Circuit has (since 
deciding Roy) encountered at least one excessive force case in 
which, even if a Fourth Amendment violation occurred, immunity 
was nonetheless appropriate. Napier, 187 F.3d at 188. 

10 See, e.g., Snyder v. Trepagnier, 142 F.3d 791, 801 n.10 (5th 
Cir. 1998) (“Some other circuits disagree and take the position that 
a finding of excessive force precludes a finding of qualified im- 
munity.”); Slattery, 939 F.2d at 215-216 (noting conflict); App., 
infra, 11a (citing Snyder as contrary authority). The issue has also 
generated intracircuit conflicts. The Ninth Circuit has character- 
ized the decision below as “resolving an apparent intracircuit con- 
flict between excessive force cases that equated the inquiry on the 
merits with the qualified immunity analysis and other cases that 
suggested the two lines of inquiry are distinct.” Headwaters For- 
est Defense v. County of Humboldt, No. 98-17250, 2000 WL 531004, 
at *18 (May 4, 2000) (emphasis added). See also note 9, supra 
(noting Seventh Circuit cases). 

noted by the courts of appeals, 

16 

are framed in terms of “objective reasonableness.” In 
essence, those courts reason that it is not possible for 
the force to be objectively reasonable for purposes of 
the qualified immunity inquiry, while also being objec- 
tively unreasonable for purposes of the Fourth Amend- 
ment itself. See, e.g., App., infra, 10a (finding “parity” 
because both the immunity defense “and the merits of 
an excessive force claim focus on the objective reason- 
ableness of the officer’s conduct”); Parham, 929 F.2d at 
540, 541 n.2 (if “the force used was unnecessary” and 
violated the Fourth Amendment, “any question of ob- 
jective reasonableness” for qualified immunity pur- 
poses “has also been foreclosed” because “[n]o officer 
could reasonably believe that the use of unreasonable 
force did not violate clearly established law”). 

This Court, however, rejected virtually indistinguish- 
able reasoning in Anderson. In that case too, the 
plaintiffs argued that the test for qualified immunity 
merely duplicates the Fourth Amendment merits in- 
quiry because both require reasonableness; it “is not 
possible,” they argued, “to say that one ‘reasonably’ 
acted unreasonably.” 483 U.S. at 643. This Court re- 
jected that argument as “unpersuasive,” ibid., because 
it relies on the coincidence of language—the common 
use of the word “reasonable”—in the qualified immu- 
nity test and in the Fourth Amendment. If the Fourth 
Amendment had been written to speak of “undue” 
searches and seizures, the Court explained, the fallacy 
of the argument would be apparent, even though the 
meaning of the Amendment would be unchanged: 

[The argument’s] surface appeal is attributable to 
the circumstance that the Fourth Amendment’s 
guarantees have been expressed in terms of “unrea- 
sonable” searches and seizures. Had an equally 
serviceable term, such as “undue” searches and 

17 

seizures been employed, what might be termed the 
“reasonably unreasonable” argument against appli- 
cation of Harlow to the Fourth Amendment would 
not be available—just as it would be available 
against application of Harlow to the Fifth Amend- 
ment if the term “reasonable process of law” had 
been employed there. The fact is that, regardless of 
the terminology used, the precise content of most of 
the Constitution’s civil-liberties guarantees rests 
upon an assessment of what accommodation be- 
tween governmental need and individual freedom is 
reasonable * * *. Law enforcement officers whose 
judgments in making these difficult determinations 
are objectively legally reasonable [although ulti- 
mately mistaken] should no more be held personally 
liable in damages than should officials making analo- 
gous determinations in other areas of law. 

Id. at 643-644. The same analysis forecloses the Ninth 
Circuit’s reasoning here. See Oliveira v. Mayer, 23 
F.3d 642, 648 (2d Cir. 1994) (Anderson “authoritatively 
instructed that the objective reasonableness component 
of the inquiry as to lawfulness is not the same as the 
objective reasonableness component of the inquiry as to 
qualified immunity”), cert. denied, 513 U.S. 1076 (1995); 
Karnes v. Skrutski, 62 F.3d 485, 491-492 n.3 (3d Cir. 
1995) (the attempt to equate the two inquiries “mis- 
construes the nature of qualified immunity, and in any 
case has been rejected by the Supreme Court”). 

11 

11 This Court’s decision in Graham also suggests that qualified 
immunity should be available in excessive force cases. In that 
case, the Court observed that “the officer’s objective ‘good faith’— 
that is, whether he could reasonably have believed that the force 
used did not violate the Fourth Amendment—may be relevant to 
the availability of the qualified immunity defense to monetary 
liability under § 1983.” 490 U.S. at 399 n.12 (citing Anderson). The 

18 

The Ninth Circuit’s contrary approach overlooks the 
fact that “objective reasonableness” serves distinct 
functions in the Fourth Amendment and qualified im- 
munity inquiries. When a jury or a court determines 
whether constitutionally excessive force has been used 
in violation of the Fourth Amendment, it articulates a 
standard to govern the conduct of an officer confronting 
a certain set of facts, i.e., it decides whether the officer’s 
conduct was “objectively reasonable.” Graham v. Con- 
nor, 490 U.S. 386, 397 (1989). But when a decision- 
maker resolves the question of immunity, it asks a 
different question—whether that standard of conduct 
was sufficiently obvious in the first instance that it 
would be unreasonable to have reached the opposite 
conclusion. Although both inquiries use the term “rea- 
sonable” (or its converse, “unreasonable”), they employ 
that term for different purposes and in different senses. 
With respect to the Fourth Amendment itself, reason- 
ableness defines the boundaries of lawful conduct. In 
the immunity context, it defines the often wider 
boundaries of what an officer, because of a lack of 
clarity in the legal standard or its application to the 
specific facts of the case, could understandably have 
believed to be lawful. 

Thus, the determination that an officer’s use of force 
was “unreasonable” for Fourth Amendment purposes 
does not preclude a determination that the question 
was sufficiently close that reasonable officers (or rea- 
sonable judges or jurors) could have disagreed about 

Court also stated that, “[s]ince no claim of qualified immunity has 
been raised in this case, * * * we express no view on its proper 
application in excessive force cases.” Ibid. (emphasis added). That 
sentence on its face reserves the question how qualified immunity 
applies in excessive force cases, and not—as the court of appeals 
mistakenly believed, App., infra, 14a n.4—whether it applies. 

19 

that conclusion in advance. As the Second Circuit has 
explained, “to say that the use of constitutionally exces- 
sive force violates a clearly established right * * * 
begs the open question whether the particular degree 
of force under the particular circumstances was” so 
clearly “excessive” that only a plainly incompetent 
officer could have thought otherwise. Finnegan, 915 
F.2d at 823-824. In other words, a Fourth Amendment 
violation occurs when, even taking into account the 
deference owed to the split-second decisions of officers, 
the conduct turns out to have been, on balance, objec- 
tively unreasonable. But immunity is nonetheless 
appropriate unless that conduct “was so far beyond” the 
sometimes “hazy border between excessive and accept- 
able force that [the official] had to know he was vio- 
lating the Constitution,” i.e., unless “application of the 
[excessive force] standard would inevitably lead every 
reasonable officer in [the defendants’] position to con- 
clude the force was unlawful.” Priester v. City of Rivi- 
era Beach, 208 F.3d 919, 926-927 (11th Cir. 2000); Post 

v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (1993), 
amended, 14 F.3d 583 (11th Cir. 1994). 

12 

12 Although findings of excessive force and qualified immunity 
are not necessarily inconsistent, they are not necessarily consis- 
tent either. In some cases, there will be no set of facts supported 
by the evidence under which the officer’s conduct could both be 
unconstitutional and sufficiently close to an unclear constitutional 
boundary to warrant immunity. That frequently may be true in 
cases involving the use of deadly force, since those cases are often 
governed by a bright-line rule and liability often turns on historical 
facts, such as whether the plaintiff was (or the officer reasonably 
thought the plaintiff was) armed and dangerous. See Tennessee v. 
Garner, 471 U.S. 1, 11 (1985). Even in deadly force cases, however, 
the results of the excessive force inquiry and the qualified immu- 
nity test can diverge, not only because open legal questions under 
Garner remain, but also because Garner ’s application to the par- 

20 

Attempting to reconcile its decision with this Court’s 
decision in Anderson, the Ninth Circuit pointed out 
that, under its precedents, qualified immunity is exam- 
ined in two steps: first by asking whether the “law”— 
by which the Ninth Circuit means the governing fac- 
tors, legal formula, or standard—“was clearly estab- 
lished”; 

13 second by examining whether a reasonable 
officer could have believed his conduct to be lawful 
under that standard. App., infra, 8a. This “Court’s 
qualified immunity discussion in Anderson,” the court 
of appeals stated, “focuses on the proper formulation of 
the ‘clearly established’ ” step, or “the first prong” of 
that analysis, and does not “address the application of 
the second prong of the qualified immunity analysis,” 
which is whether a reasonable officer could have be- 
lieved his conduct to be lawful. Id. at 13a-14a n.4. That 
distinction is unpersuasive for two reasons. 

First, Anderson does not contemplate dividing the 
qualified immunity inquiry into two distinct “prongs,” 
one involving whether there was “clearly established” 
law, and the other involving whether a reasonable 
officer could have believed his conduct to be lawful. 
Instead, Anderson makes it clear that the Ninth Cir- 
cuit’s second prong (whether a reasonable officer could 
have thought the conduct lawful) is how courts should 
decide the first (whether the law is “clearly estab- 
lished”). As this Court explained in Anderson itself, 

ticular facts confronting an officer does not always yield an 
undebatably certain result. 

13 See Headwaters Forest Defense, No. 98-17250, 2000 WL 
531004, at *18 (declaring that “the law concerning the use of exces- 
sive force is clearly established” even though its application in the 
particular factual context was “unprecedented,” because “the law 
under Graham and its progeny concerning the relevant factors for 
assessing the limits on police use of force under the Fourth 
Amendment” are well established). 

21 

the law is “clearly established” for purposes of qualified 
immunity only if “[t]he contours of the right” are “suffi- 
ciently clear that a reasonable official would understand 
that what he is doing violates that right.” 483 U.S. at 
640 (emphasis added); Wilson v. Layne, 526 U.S. 603, 
614-615 (1999) (“ ‘Clearly established’ for purposes of 
qualified immunity means that ‘[t]he contours of the 
right must be sufficiently clear that a reasonable official 
would understand that what he is doing violates that 
right.’ ”). If reasonable officers could have disagreed on 
whether the conduct was lawful, the law was not 
“clearly established” and immunity must be recognized; 
in contrast, if reasonable officers could not have dis- 
agreed, the law was clear. Malley, 475 U.S. at 341. 
Anderson thus cannot be distinguished as relating to 
“prong one” instead of “prong two” of the Ninth Cir- 
cuit’s two-prong qualified immunity test because, under 
Anderson, the Ninth Circuit’s two “prongs” are differ- 
ent ways of asking a single question. 

Second, the court of appeals erred in asserting (App., 
infra, 13a-14a n.4) that Anderson addresses the Ninth 
Circuit’s first prong (whether the governing standard 
was clearly established) rather than the second (whether 
an officer could have thought his conduct lawful). In 
fact, in Anderson there was no dispute about the “first 
prong” because the standard governing the officer’s 
conduct—there, a warrantless search—was not in dis- 
pute. 

14 The only question in Anderson was whether 

14 Anderson concerned officers who allegedly searched a home 
for a fugitive, without a warrant, in the absence of probable cause 
and exigent circumstances. The legal standards and verbal formu- 
lae governing such conduct were well settled before the incident 
that gave rise to that case. Anderson, 483 U.S. at 640; Johnson v. 
United States, 333 U.S. 10 (1948); Steagald v. United States, 451 
U.S. 204 (1981); Payton v. New York, 445 U.S. 573, 578 (1980); 
Wong Sun v. United States, 371 U.S. 471, 479 (1963). 

22 

qualified immunity protected officers who might have 
erred in applying the established standard, i.e., in de- 
termining that probable cause and exigent circum- 
stances were present on the facts before them. See 483 
U.S. at 640-641 (court of appeals erred by refusing to 
consider, on qualified immunity, “the argument that it 
was not clearly established that the circumstances with 
which Anderson was confronted did not constitute 
probable cause and exigent circumstances”). See also 
Hunter, 502 U.S. at 228 (officers entitled to immunity 
“if a reasonable officer could have believed” probable 
cause existed). Thus, in Anderson itself, this Court 
held that the relevant question for qualified immunity is 
“whether a reasonable officer could have believed An- 
derson’s warrantless search to be lawful, in light of 
clearly established law and the information the search- 
ing officers possessed.” 483 U.S. at 641. That is what 
the Ninth Circuit considers to be the second prong, ex- 
pressed in nearly identical language. See App., infra, 
8a (under second prong, court asks whether “a reason- 
able official could have believed the conduct was 
lawful”). 

15 

c. Equating the qualified immunity inquiry with the 
Fourth Amendment reasonableness standard in exces- 
sive force cases, moreover, fundamentally undermines a 
critical function served by qualified immunity. Quali- 
fied immunity is “an immunity from suit rather than a 
mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 
511, 526 (1985). Consequently, this Court “repeatedly 

15 The Ninth Circuit also distinguished Anderson as a case 
about warrantless searches rather than excessive force, App., 
infra, 14a n.4, but the Ninth Circuit offered no reason for treating 
the two Fourth Amendment claims differently. See Slattery, 939 
F.2d at 215 (finding “no principled reason” for distinguishing quali- 
fied immunity in excessive force cases from qualified immunity in 
other Fourth Amendment cases); Brown, 878 F.2d at 873 (similar). 

23 

ha[s] stressed the importance of resolving immunity 
questions at the earliest possible stage in litigation,” so 
that officers do not “err always on the side of caution 
because they fear being sued.” Hunter, 502 U.S. at 227, 
229 (internal quotation marks omitted). 

Equating qualified immunity with Fourth Amend- 
ment reasonableness is inconsistent with that require- 
ment. In the Ninth Circuit (and elsewhere in practice), 
“[t]he question of the reasonableness of force” under 
the Fourth Amendment “is usually” treated as “a ques- 
tion of fact for the jury,” and therefore generally must 
be resolved at trial. App., infra, 14a n.5; Roy v. Inhab- 
itants of City of Lewiston, 42 F.3d 691, 694-695 (1st Cir. 
1994) (“Judgments about reasonableness are usually 
made by juries in arguable cases, even if there is no 
dispute about what happened.”). By equating qualified 
immunity with substantive Fourth Amendment reason- 
ableness, the Ninth Circuit effectively requires the 
question of qualified immunity in excessive force cases 
generally to be resolved at trial as well. Indeed, under 
the Ninth Circuit’s approach, summary judgment on 
qualified immunity must be denied unless “the evidence 
compels the conclusion that [the officer’s] use of force 
was reasonable.” App. infra, 15a n.5 (emphasis added). 
That standard, however, is virtually indistinguishable 
from the one this Court rejected in Hunter v. Bryant, 
precisely because “it routinely places the question of 
immunity in the hands of the jury.” 502 U.S. at 228. 

16 

The Ninth Circuit’s approach, moreover, turns the 
qualified immunity inquiry on its head. Summary judg- 

16 In Hunter, the Ninth Circuit stated that “[w]hether a rea- 
sonable officer could have believed he had probable cause is a ques- 
tion for the trier of fact, and summary judgment * * * based on 
lack of probable cause is proper only if there is only one reasonable 
conclusion a jury could reach.” 502 U.S. at 228. 

24 

ment should not be limited to cases where the force was 
so clearly reasonable as to “compel[]” the conclusion 
that it was lawful. App., infra, 15a n.5. Quite the oppo- 
site: Summary judgment on qualified immunity is 
required unless (viewing the facts in the light most 
favorable to the plaintiff) the standards and relevant 
cases “truly compel (not just suggest or allow or raise a 
question about), the conclusion * * * that what 
defendant [did] violates federal law in the circum- 
stances.” Priester, 208 F.3d at 927. Thus, qualified 
immunity serves an “important purpose” at summary 
judgment in excessive force cases, because it permits 
the entry of judgment not only where no one could 
think the force unreasonable, but also where “reason- 
able minds could differ.” Ellis v. Wynalda, 999 F.2d 
243, 246 n.2 (7th Cir. 1993). 

2. This case, moreover, illustrates the importance of 
distinguishing the Fourth Amendment merits question 
from the qualified immunity inquiry in unreasonable 
force cases. As the district court noted, petitioner 
asserts qualified immunity for (1) the “degree of force 
used to remove [respondent] from the crowd,” and 
(2) the force used to “place [respondent] inside the van.” 
App., infra, 29a. See also id. at 27a (analyzing the two 
uses of force). Whatever one might think of the con- 
stitutionality of those uses of force, neither was so 
clearly unreasonable that no officer could have thought 
it to be lawful at the time. 

a. As to the first use of force, petitioner and Ser- 
geant Parker removed respondent from the crowd by 
each taking one of his arms, lifting him, and rushing him 
out to the police van. See pp. 3-4, supra; App., infra, 4a, 
24a-25a; id. at 27a (describing videotape). The Ninth 
Circuit denied qualified immunity for that conduct, con- 
cluding that “no reasonable officer could have believed 
that” grabbing hold of respondent “without warning or 

25 

speaking to him” and partially carrying him from the 
crowd “was necessary under the circumstances,” id. at 
15a, because respondent’s crime was not serious and 
respondent did not pose an immediate threat to public 
safety. 

17 The court stated: 

Unfurling a banner at a public event does not 
appear to be a particularly severe crime. Katz was 

17 The Ninth Circuit’s use of the phrase “no reasonable officer” 
echoes a component of the qualified immunity standard required 
by Anderson v. Creighton. That does not mean, however, that the 
Ninth Circuit articulated and applied the correct standard under 
Anderson. To the contrary, the Ninth Circuit held that the rele- 
vant immunity standard could not be met (and summary judgment 
was improper) unless “the amount of force [petitioner] used in 
arresting [respondent] was so minimal that it was per se reason- 
able.” App., infra, 14a (emphasis added). That latter articulation 
is clearly at odds with any notion of resolving close questions in 
favor of the officer, as qualified immunity ordinarily requires. See 
Hunter, 502 U.S. at 235 (Kennedy, J., concurring) (given that doubt 
“has been expressed” on “whether the Court of Appeals applied 
the correct legal standard to resolve the qualified immunity issue 
on summary judgment,” it would be appropriate to “set the case 
for full briefing and oral argument.”). Indeed, the court of appeals 
held that even close cases must be resolved at trial because the 
“reasonableness of force”—a question the court of appeals equated 
with the qualified immunity inquiry—“is usually a question of fact 
for the jury,” and can be resolved on summary judgment only 
when “the evidence compels the conclusion that [the officer’s] use 
of force was reasonable.” App., infra, 14a-15a n.5 (emphasis 
added). As explained above, that approach turns the inquiry 
upside down; it is precisely where reasonable minds could differ on 
the force’s reasonableness that immunity is appropriate. See pp. 
23-24, supra. Second, the court of appeals improperly focuses on 
the issue of “necess[ity].” App., infra, 10a, 11a, 15a. The question 
for qualified immunity purposes, however, is whether an officer 
could reasonably have thought the amount of force employed to be 
reasonable and thus lawful. Cf. Seekamp v. Michaud, 109 F.3d 
802, 807-808 (1st Cir. 1997) (officer not required to use the least 
intrusive degree of force possible). 

26 

sixty years old and wearing a leg brace. There is no 
indication he was armed or dangerous. From all 
that appears at this stage of the case, he did not 
pose an immediate threat to the safety of the 
officers or anyone else. 

Ibid. 

By holding that the use of such minimal force is not 
only unreasonable, but so obviously unreasonable that 
no officer could have thought it lawful, the Ninth 
Circuit has effectively held that, in cases like this, 
officers are prohibited from using any force at all to 
make an arrest. That suggestion is difficult to reconcile 
with this Court’s decision in Graham, which recognizes 
“that the right to make an arrest or investigatory stop 
necessarily carries with it the right to use some degree 
of physical coercion or threat thereof to effect it.” 490 
U.S. at 396. It conflicts with cases from other circuits. 

18 

And it conflicts with common sense. The officers were 

18 See, e.g., Curd v. City Court, 141 F.3d 839, 841 (8th Cir.) 
(where officer “seized [arrestee’s] arm, spun her around and told 
her to get into the police car,” the “limited amount of force” was 
not “objectively unreasonable” under Graham, “[e]ven if * * * un- 
necessary to effect the arrest,” especially given that the plaintiff 
“does not allege, and there is no evidence, that she was injured or 
experienced physical pain”), cert. denied, 525 U.S. 888 (1998); 
Hinton v. City of Elwood, 997 F.2d 774, 781 (10th Cir. 1993) (simi- 
lar). Indeed, the Eleventh Circuit has, in a long line of cases, re- 
peatedly applied the “de minimis” label to uses of force that exceed 
the amount used in this case. Nolin v. Isbell, 207 F.3d 1253, 1255- 
1258 (2000) (summarizing). See, e.g., Jones v. City of Dothan, 121 
F.3d 1456, 1460 (11th Cir. 1997) (immunity proper where officer 
“slammed” the plaintiff against a wall and “kicked his legs apart,” 
causing him to suffer pain). We do not preclude the possibility 
that, in some circumstances, the only reasonable amount of force is 
no force at all. As explained in text, however, the minimal force 
used in this case was not so obviously unreasonable that no officer 
could have thought it lawful. 

27 

confronted with the possibility of escalation (other 
potential protestors were in the crowd) and charged 
with ensuring the safety of the Vice President, who 
stood only steps away. According to the court of ap- 
peals, the officers’ use of surprise to their advantage in 
those circumstances—by seizing respondent (who was 
openly flouting the bar on banners) quickly and whisk- 
ing him away—was unreasonable; instead, the court of 
appeals suggested, the officers should have “warn[ed] 
or sp[oken] to” respondent first. App., infra, 15a. We 
know of no decision of this Court holding that the 
police, confronted with a suspect who openly defies the 
law, must discuss the possibility of seizure with him in 
advance and thus may not use surprise to take him into 
custody quickly. Even if the Fourth Amendment were 
construed as containing such a requirement, petitioner 
surely was not “plainly incompetent” not to have known 
that at the time. Malley, 475 U.S. at 341. 

b. With respect to the force used to place respondent 
in the van, the court of appeals suggested that, because 
respondent denies resisting, it may not have been 
necessary to push respondent inside. App., infra, 15a. 
But “ ‘[n]ot every push or shove, even if it may later 
seem unnecessary in the peace of a judge’s chambers,’ 
Johnson v. Glick, 481 F.2d [1028, 1034 (2d Cir.), cert. 
denied, 414 U.S. 1033 (1973)], violates the Fourth 
Amendment.” Graham, 490 U.S. at 396. A fortiori, a 
single push, later deemed unnecessary, cannot be so 
clearly unconstitutional as to defeat qualified immu- 
nity. 

Nor does it matter that respondent, in his complaint 
and his court of appeals brief, claimed that he was 
shoved “violently.” See App., infra, 15a. As an initial 
matter, the shove to which respondent refers did not 

28 

come from petitioner—it came from Sergeant Parker 

19 

—and the Ninth Circuit nowhere articulated any basis 
for holding petitioner liable for Parker’s conduct. 
Besides, merely quoting the adverb “violently” from 
the complaint cannot substitute for reasoned analysis of 
whether the admissible evidence shows force that was 
so clearly excessive as to render qualified immunity 
inappropriate. See Fed. R. Civ. P. 56(e) (party may not 
“rest upon the mere allegations” of a pleading to defeat 
a properly supported motion for summary judgment). 

20 

Here, after reviewing a videotape of the actual events 
in question, the district court declared that, when 
viewed “in a light most favorable to” respondent, the 
tape showed the officers “removing” respondent from 
the crowd, “carrying or pulling him” toward the van, 
and “push[ing]” or “placing” him inside. App., infra, 
27a. The videotape itself—which is being lodged with 
this Court—not only confirms that analysis, but dispels 
the notion that the force petitioner used was so 
excessive as to be clearly and obviously unlawful. 

c. The court of appeals, moreover, fundamentally 
erred by employing hindsight to second-guess the per- 

19 The videotape makes that clear. As respondent is placed into 
the van, Sergeant Parker appears on the right side of the screen; 
petitioner appears on the left, wearing glasses. See Saucier Dep. 
24; Parker Dep. 58. 

20 The characterization of the push as “violent[],” even if ac- 
cepted, does not itself establish that qualified immunity should 
have been denied. Black’s defines “violently” as “[b]y the use of 
force; forcibly,” Black’s Law Dictionary 1570 (6th ed. 1990), and 
“violent” as “characterized” by “physical force, especially by ex- 
treme and sudden or by unjust or improper force.” Ibid. Conse- 
quently, the inclusion of the word “violently” in the complaint 
merely underscores the fact that the push involved force, and po- 
tentially “unjust and improper” force. It does not demonstrate 
that the force used was so extreme and unjustified that no rea- 
sonable officer could have thought it lawful. 

29 

ceptions and actions of the officers on the scene. 
Fourth Amendment and qualified immunity issues, this 
Court has admonished, must be examined from “the 
perspective of a reasonable officer on the scene,” 490 
U.S. at 396, and should not be reconstructed in view of 
the more expansive knowledge that extensive litigation 
and leisurely examination can produce years later. See 
Hunter, 502 U.S. at 228 (“the court should ask whether 
the agents acted reasonably under settled law in the 
circumstances, not whether another reasonable, or 
more reasonable, interpretation of the events can be 
constructed five years after the fact”). 

In this case, the court of appeals repeatedly ignored 
those admonitions. First, without acknowledging the 
atmosphere of uncertainty confronting the officers, the 
court of appeals faulted their treatment of respondent 
because, “at this stage of the case,” it “appears” that 
respondent posed no “immediate threat.” App., infra, 
15a. See also ibid. (relying on the fact that “[t]here is 
no indication” that respondent was armed or danger- 
ous) (emphasis added). The relevant question, how- 
ever, is not what “appears” now, after years of litiga- 
tion; the question instead is what the police knew at the 
time. Hunter, 502 U.S. at 228. Thus, the court of 
appeals also erroneously attributed significance to the 
fact that respondent was wearing a leg brace, App., 
infra, 15a, 27a, when there was no evidence that either 
officer was aware of the brace, and respondent testified 
that the brace was underneath the leg of his trousers. 
Resp. Dep. 34; Parker Dep. 47; Saucier Dep. 17. 

Similarly, the court of appeals mistakenly thought 
summary judgment was defeated by respondent’s claim 
that he did not resist being placed in the van, App., 
infra, 15a, when the relevant inquiry is whether— 
accepting respondent’s assertion that he did not resist 
—the officers reasonably could have believed that re- 

30 

spondent was resisting. It is undisputed that respon- 
dent took actions that could have created the appear- 
ance of resistance: petitioner testified that respondent 
resisted by putting his feet on the van’s bumper and 
pushing away, id. at 25a, while respondent testified that 
he put his feet on the van’s entry or the bumper as the 
officers attempted to place him inside, Resp. Dep. 40-41. 

The court of appeals thus engaged in—and invited— 
precisely the sort of omniscient hindsight analysis that 
qualified immunity and the Fourth Amendment both 
forbid. By denying qualified immunity, the court in 
effect established a rule that law enforcement officers 
making an arrest may use no more force than abso- 
lutely necessary and, in many cases, may use no force at 
all. That rule is unsupported by precedent, and in any 
event is not so clearly established as to defeat qualified 
immunity. 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

DAVID W. OGDEN 

Acting Assistant Attorney 

General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

JEFFREY A. LAMKEN 

Assistant to the Solicitor 

General 

BARBARA L. HERWIG 
EDWARD HIMMELFARB 

Attorneys 

JUNE 2000 

APPENDIX A 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 98-16298 

ELLIOT M. KATZ; IN DEFENSE OF ANIMALS 
PLAINTIFFS-APPELLEES 

v. 

UNITED STATES OF AMERICA; CORBIN LEE, MAJOR; 
BRIAN O’NEILL; STEVEN PARKER, SERGEANT; 
GLYNN C. MALLORY, JR., GENERAL, DEFENDANTS 
AND 

DONALD SAUCIER, PRIVATE, DEFENDANT-APPELLANT 

Appeal from the United States District Court for the 

Northern District of California 

[Filed: Oct. 22, 1999] 

Before: THOMPSON and GRABER, Circuit Judges, 
and CARROLL, District Judge.1 

DAVID R. THOMPSON, Circuit Judge: 

Army Private Donald Saucier (“Saucier”), acting as a 
military police officer, arrested Elliot M. Katz (“Katz”) 

1 The Honorable Earl H. Carroll, United States Senior District 
Judge for the District of Arizona, sitting by designation. 

(1a) 

2a 

during a public event at the San Francisco Presidio. 
Katz was holding up a sign when he was arrested. 
According to Katz, Saucier and another officer grabbed 
him, tore the sign out of his hands, dragged him fifty 
feet, and violently tossed him into a van. Katz brought 
a Bivens action against Saucier and others for violations 
of his constitutional rights. See Bivens v. Six Unknown 
Named Agents of the Fed. Bureau of Narcotics, 403 
U.S. 388, 91 S. Ct. 1999, 29 L.Ed.2d 619 (1971). Saucier 
filed a motion for summary judgment, contending he 
was entitled to qualified immunity. The district court 
denied Saucier’s motion as to Katz’s Fourth Amend- 
ment claim, which was grounded on Saucier’s alleged 
use of excessive force in effecting Katz’s arrest. Sau- 
cier appeals. 

Saucier contends that, although our circuit has a long 
line of cases in which we have held that the reasonable- 
ness inquiry on the merits of a Fourth Amendment 
excessive force claim is the same as the reasonableness 
inquiry posed by a qualified immunity defense, these 
cases conflict with our en banc holding in Hammer v. 
Gross, 932 F.2d 842, 850 (9th Cir. 1991). We disagree, 
and affirm the district court. 

FACTUAL BACKGROUND2 

This case arises out of Katz’s arrest for his conduct 
during a speech given by Vice President Gore at the 
Presidio Army base in San Francisco. Katz, an animal 
rights activist, seeks damages from Saucier for violat- 
ing his Fourth Amendment rights by using excessive 

2 Consistent with the standard of review on summary judg- 
ment, the facts are presented in the light most favorable to Katz. 
See Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998). 

3a 

force. This claim is one of multiple claims brought by 
Katz and In Defense of Animals (“IDA”), an animal 
rights organization of which Katz is president, against 
the United States, a national parks official, and various 
military officials. 

On September 24, 1994, the public was invited to 
attend a special presentation by Vice President Gore, 
followed by other speakers, on the main post at the 
Presidio. The event was to celebrate the anticipated 
conversion of most of the Presidio to a national park. 
The conversion of the Presidio was a subject of public 
controversy, with animal rights activists concerned 
about the possibility of animal experimentation at the 
Army’s Letterman Hospital. 

Katz, a veterinarian who was then sixty years old, 
and other members of IDA were among the several 
hundred members of the public who attended the event. 
Katz arrived early and sat at the front of the public 
seating area, which was separated from the stage and 
dignitary seating area by a waist-high cyclone fence. 
He was wearing a visible, knee-high leg brace because 
of a broken foot. He was not wearing a shoe on his in- 
jured foot. 

On the day of the event, Saucier was working as a 
military police officer. In his deposition, Saucier testi- 
fied that he had been told by his superiors that demon- 
strations would not be allowed. He had been instructed 
to “diffuse the situation if it arises,” but not to “draw 
that much attention if we didn’t have to.” Saucier ad- 
mits that Katz was “pointed out as one of the potential, 
you know, activists” and that he knew “who this person 
was . . . the person we need[ed] to keep an eye on.” 

4a 

Either before or as Vice President Gore began 
speaking, Katz silently removed a cloth banner from his 
jacket. As Gore was speaking, Katz started to unfold 
the banner and walked to the barrier. The banner 
measured approximately four feet by three feet and 
stated “Please Keep Animal Torture Out of Our Na- 
tional Parks.” Katz intended to hang the banner over 
the fence so that Vice President Gore and the other 
speakers could read it. 

According to Katz’s deposition, before he could fully 
unfurl the banner, a military police officer “grabbed 
[him] from behind and somebody else tore the banner 
away.” These individuals were Defendants Saucier and 
Steven Parker, an Army sergeant. Katz did not try to 
prevent them from taking the banner. The two military 
police officers then each took one of Katz’s arms and 
“started sort of picking [Katz] up and kind of walking 
[him] out, kind of like very hurriedly, sort of like the 
bum’s rush.” They took Katz to a military van parked 
behind the seating area and “violently threw” him 
inside. As the military police officers “shoved” Katz 
into the vehicle, he was able “to kind of prevent” his 
head from smashing into the floor of the van. He “was 
able to stop the downward and the forward motion by 
just catching [himself ] so that [he] didn’t smash 
[himself].” With “a great deal of effort,” he was barely 
able “to prevent [himself ] from getting seriously hurt.” 

The military police officers never spoke to Katz. 
They closed the door to the van, leaving Katz alone in 
the vehicle for about twenty minutes. At some point, 
the military police officers placed another IDA member 
in the van, and they searched and handcuffed Katz and 
the other IDA member. They then drove Katz and the 

5a 

other IDA member to a military police station. After 
being briefly detained, Katz was released and allowed 
to drive home. Katz was never informed of the basis for 
his detention or cited with any violation of any law or 
regulation. 

PROCEDURAL HISTORY 

Katz and IDA filed a lawsuit in the district court 
alleging multiple claims against the United States, a na- 
tional parks official, and various military officials. 
Against Saucier, Katz alleged claims predicated upon 
violations of the First Amendment, by depriving Katz 
of his right to free speech, and the Fourth Amendment, 
by arresting Katz without probable cause and with 
excessive force. Katz asserted the same claims against 
Sergeant Parker, but at the time of this appeal Parker 
had not been served. 

As to Katz’s First Amendment-based claim, the dis- 
trict court granted summary judgment in favor Saucier 
and several of the military officials on the ground of 
qualified immunity. The district court determined that, 
“[i]n light of the transitional stage of the Presidio on 
September 24, 1994, . . . the [c]onstitutional rights of 
protestors at the base were not well settled on that 
date. [Thus], a reasonable military officer could have 
concluded that preventing protests at the base was 
[c]onstitutional.” The district court also granted sum- 
mary judgment in favor of Saucier on Katz’s false ar- 
rest claim, holding that Saucier was entitled to qualified 
immunity. The district court, however, denied Sau- 
cier’s motion for summary judgment on Katz’s exces- 
sive force claim. 

6a 

The district court described in detail the factual dis- 
putes between the parties concerning the amount of 
force used, the nature of the risk posed by Katz, and 
whether and to what degree Katz resisted arrest. The 
district court concluded that “[a] triable issue of fact 
exists as to whether [the] defendants employed exces- 
sive force in removing Katz from the crowd and placing 
him in the police van.” On the issue of qualified immu- 
nity, the district court held that the law governing the 
use of force in an arrest was clearly established. 
Stating that “the qualified immunity inquiry is the 
same as the inquiry on the merits” in an excessive force 
claim, the district court concluded that “a question of 
fact [exists] regarding whether a reasonable officer 
could believe [Saucier’s] use of force was lawful.”3 

Saucier timely filed this interlocutory appeal of the 
district court’s order denying him qualified immunity. 

DISCUSSION 

I. 

STANDARD OF REVIEW 

We review de novo a denial of summary judgment on 
qualified immunity. See Knox v. Southwest Airlines, 
124 F.3d 1103, 1105 (9th Cir. 1997). 

3 Because of the lack of a link between the actions of Defen- 
dants General Glynn Mallory, Jr., and Major Corbin Lee and 
Saucier’s use of force, the district court granted summary judg- 
ment in favor of those defendants on Katz’s Fourth Amendment- 
based claims. 

7a 

II. 

JURISDICTION 

We have jurisdiction under the collateral order doc- 
trine to review an interlocutory appeal of the district 
court’s order denying summary judgment on a qualified 
immunity defense. See Armendariz v. Penman, 75 F.3d 
1311, 1316 (9th Cir. 1996) (citing Mitchell v. Forsyth, 
472 U.S. 511, 528, 105 S. Ct. 2806, 86 L.Ed.2d 411 
(1985)). The collateral order doctrine, however, “does 
not sanction review of a district court’s order denying 
the defendant’s motion for summary judgment on 
qualified immunity grounds when the basis for the 
defendant’s motion is that the evidence in the pretrial 
record is insufficient to create a genuine issue of fact for 
trial.” Id. at 1317 (citing Johnson v. Jones, 515 U.S. 
304, 313-319, 115 S. Ct. 2151, 132 L.Ed.2d 238 (1995)). 
Thus, on summary judgment, our review is generally 
“limited to determining whether clearly established law 
existed at the time of the incident that [the defendant’s] 
actions could have violated.” Watkins v. City of Oak- 
land, 145 F.3d 1087, 1091 (9th Cir. 1998). We also have 
jurisdiction, however, to review the question whether 
there is any genuine issue of material fact as to whether 
an officer’s conduct “met the [qualified immunity] stan- 
dard of ‘objective legal reasonableness.’” Behrens v. 
Pelletier, 516 U.S. 299, 313, 116 S. Ct. 834, 133 L.Ed.2d 
773 (1996); see also Collins v. Jordan, 110 F.3d 1363, 
1370 (9th Cir. 1996) (“An appellate court [also] has 
jurisdiction to consider defendants’ assertion that the 
dispute of fact is not material.”). 

8a 

III. 

Qualified Immunity Analysis In An Excessive 
Force Case 

Saucier argues that our en banc holding in Hammer, 
932 F.2d at 850, conflicts with our later cases in which 
we have equated the reasonableness test for the de- 
fense of qualified immunity with the reasonableness 
test for the merits of an excessive force claim. We dis- 
agree. 

“The doctrine of qualified immunity protects ‘govern- 
ment officials performing discretionary functions . . . 
from liability for civil damages insofar as their conduct 
does not violate clearly established statutory or consti- 
tutional rights of which a reasonable person would have 
known.’ ” Somers v. Thurman, 109 F.3d 614, 616-17 (9th 
Cir.) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 
102 S. Ct. 2727, 73 L.Ed.2d 396 (1982)), cert. denied, 522 
U.S. 852, 118 S. Ct. 143, 139 L.Ed.2d 90 (1997). The 
qualified immunity analysis is the same for Bivens ac- 
tions against federal officials as it is for claims against 
state officials under 42 U.S.C. § 1983. See Harlow, 457 
U.S. at 818 n. 30, 102 S. Ct. 2727. “To determine 
whether an official is entitled to qualified immunity, we 
conduct a two-part analysis: (1) We consider whether 
the law governing the official’s conduct was clearly 
established. If it was not clearly established, the official 
is entitled to immunity from suit. (2) If the law was 
clearly established, we proceed to ask if under that law, 
a reasonable official could have believed the conduct 
was lawful.” Somers, 109 F.3d at 617 (citing Act 
Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 
1993)). 

9a 

Qualified immunity is a defense. In a civil rights ac- 
tion in which qualified immunity is asserted, the reason- 
ableness of an officer’s conduct comes into play under 
the second prong of that defense. In a civil rights action 
founded on the use of excessive force under the Fourth 
Amendment, the reasonableness of the officer’s conduct 
also comes into play, not as an element of the officer’s 
defense, but as an element of the plaintiff ’ s case. 

The 
Supreme Court held in Graham v. Connor, 490 U.S. 
386, 395, 109 S. Ct. 1865, 104 L.Ed.2d 443 (1989), that 
“all claims that law enforcement officers have used 
excessive force . . . in the course of an arrest . . . 
should be analyzed under the Fourth Amendment and 
its ‘reasonableness’ standard . . . .” The Court 

explained that this “ ‘reasonableness’ inquiry in an 
excessive force case is an objective one: the question is 
whether the [officer’s] actions are ‘objectively reason- 
able’ in light of the facts and circumstances confronting 
[him].” Id. at 397, 109 S. Ct. 1865. 

The essence of the Graham reasonableness inquiry is 
a balancing of the “force which was applied . . . 
against the need for that force.” Liston v. County of 
Riverside, 120 F.3d 965, 976 (9th Cir. 1997) (internal 
quotation marks and citations omitted). In evaluating 
whether the force used to effect a particular arrest is 
reasonable, a court must pay careful attention to the 
following non-exhaustive list of factors: “(1) the sever- 
ity of the crime at issue; (2) whether the suspect poses 
an immediate threat to the safety of the officers or 
others; and (3) whether the suspect actively resists de- 
tention or attempts to escape.” Id. (citing Graham, 490 
U.S. at 396, 109 S. Ct. 1865). 

10a 

Both the second prong of the qualified immunity de- 
fense (whether a reasonable officer could have believed 
his conduct was lawful), and the merits of an excessive 
force claim focus on the objective reasonableness of the 
officer’s conduct. To determine whether an officer is 
entitled to the defense of qualified immunity when the 
use of force is in issue, the question asked is whether a 
hypothetical officer reasonably could have believed that 
the amount of force used was reasonable. To resolve 
the merits of an excessive force claim, the question is 
whether a reasonable officer could have believed that 
the force used was necessary under the circumstances. 
See Graham, 490 U.S. at 397, 109 S. Ct. 1865. Because 
of this parity, we have repeatedly held that “the inquiry 
as to whether officers are entitled to qualified immunity 
for the use of excessive force is the same as the inquiry 
on the merits of the excessive force claim.” Alexander 

v. County of Los Angeles, 64 F.3d 1315, 1322 (9th Cir. 
1995); accord Acosta v. City and County of San Fran- 
cisco, 83 F.3d 1143, 1147-48 (9th Cir.), cert. denied, 519 
U.S. 1009, 117 S. Ct. 514, 136 L.Ed.2d 403 (1996); Scott 

v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994), cert. denied, 
515 U.S. 1159, 115 S. Ct. 2612, 132 L.Ed.2d 855 (1995); 
Alexander v. City and County of San Francisco, 29 
F.3d 1355, 1367 (9th Cir. 1994), cert. denied, 513 U.S. 
1083, 115 S.Ct. 735, 130 L.Ed.2d 638 (1995); Palmer v. 
Sanderson, 9 F.3d 1433, 1435-36 (9th Cir. 1993); Morgan 

v. Woessner, 997 F.2d 1244, 1259-60 (9th Cir.), cert. dis- 
missed, 510 U.S. 1033, 114 S. Ct. 671, 126 L.Ed.2d 640 
(1994); Hopkins v. Andaya, 958 F.2d 881, 885 n. 3 (9th 
Cir. 1992); Curnow v. Ridgecrest Police, 952 F.2d 321, 
325 (9th Cir. 1991), cert. denied, 506 U.S. 972, 113 S. Ct. 
460, 121 L.Ed.2d 369 (1992). 

11a 

The majority of other circuits have taken similar 
positions. See Bass v. Robinson, 167 F.3d 1041, 1051 
(6th Cir. 1999); Thomas v. Roach, 165 F.3d 137, 143 (2d 
Cir. 1999); Frazell v. Flanigan, 102 F.3d 877, 886-87 
(7th Cir. 1996); Scott v. District of Columbia, 101 F.3d 
748, 759 (D.C. Cir. 1996), cert. denied, 520 U.S. 1231, 117 
S. Ct. 1824, 137 L.Ed.2d 1031 (1997); Mick v. Brewer, 76 
F.3d 1127, 1135 n. 5 (10th Cir. 1996); Rowland v. Perry, 
41 F.3d 167, 173 (4th Cir. 1994); cf. Roy v. Inhabitants 
of the City of Lewiston, 42 F.3d 691, 695 (1st Cir. 1994) 
(“In police misconduct cases, however, the Supreme 
Court has used the same ‘objectively reasonable’ stan- 
dard in describing both the constitutional test of liabil- 
ity and the Court’s own standard for qualified immu- 
nity.” (citations omitted)). But see, Snyder v. Trepag- 
nier, 142 F.3d 791, 800-01 (5th Cir. 1998) (“There is no 
inherent conflict between a finding of excessive force 
and a finding of qualified immunity.”), cert. granted, 
—— U.S. ——, 119 S. Ct. 863, 142 L.Ed.2d 716 (includ- 
ing “[w]hether a jury finding that a constitutional 
violation incurred by use of excessive force in an arrest 
necessarily precludes a finding of qualified immunity, so 
as to make such dual findings irreconcilable”), cert. 
dimissed, —— U.S. ——, 119 S. Ct. 1493, 143 L.Ed.2d 
575 (1999) (pursuant to agreement between the par- 
ties). 

As the district court recognized, in an excessive force 
case, a material issue of fact as to whether an officer 
used excessive force precludes summary judgment on a 
qualified immunity defense. An officer cannot have an 
objectively reasonable belief that the force used was 
necessary (entitling the officer to qualified immunity) 
when no reasonable officer could have believed that the 
force used was necessary (establishing a Fourth 

12a 

Amendment violation). See Street v. Parham, 929 F.2d 
537, 540 (10th Cir. 1991). If genuine issues of material 
fact as to the amount of force used, or the circum- 
stances that might justify the amount of force used, 
prevent a court from concluding as a matter of law that 
the force was objectively reasonable, then a material 
issue of fact necessarily exists as to whether an objec- 
tively reasonable officer could have believed the 
amount of force used was lawful. 

We reject Saucier’s assertion that our many and con- 
sistent panel opinions on this subject are in conflict with 
our en banc opinion in Hammer, 932 F.2d at 850. In 
Hammer, the plaintiff alleged that an arresting officer 
had used excessive force to obtain a blood sample from 
him after his arrest for drunken driving. See id. at 843- 

44. At the time of the arrest, prevailing Supreme Court 
authority expressly permitted the withdrawal of blood 
over the objection of the subject. See id. at 850 (citing 
Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 
L.Ed.2d 908 (1966) and Breithaupt v. Abram, 352 U.S. 
432, 77 S. Ct. 408, 1 L.Ed.2d 448 (1957)). The constitu- 
tionality of the use of force to extract blood was judged 
by the “shock the conscience” standard, which standard 
the plaintiff Hammer conceded was not met. See id. 
We held that, although “Graham imposes a balancing 
test that can . . . result in force being found excessive 
even though it did not rise to the level that shocks the 
conscience[, r]easonable officers . . . cannot be required 
to have anticipated the ruling in Graham.” Id. Thus, 
we concluded that the defendants were “immune from 
personal liability in damages for their actions in apply- 
ing or authorizing the use of force that was unreason- 
able in all the circumstances but well below the level 

13a 

that shocks the conscience.” Id. It was in this context 
that we stated: 

[The plaintiff] suggested at oral argument that an 
officer who has used unreasonable force cannot, by 
definition, have acted reasonably. A similar conten- 
tion was rejected, however, in [Anderson v. Creigh- 
ton, 483 U.S. 635, 107 S. Ct. 3034, 97 L.Ed.2d 523 
(1987)]. Whether a search is “unreasonable” within 
the meaning of the Fourth Amendment is an en- 
tirely different question from whether an officer 
could have believed his actions lawful under the 
Fourth Amendment. [See id.] at 643-44, 107 S. Ct. 
3034. To accept [the plaintiff ’s] contention would be 
to eliminate all possibility of immunity for violations 
of the Fourth Amendment, an unacceptable out- 
come. See id. at 643, 107 S. Ct. 3034. 

Id. 

Saucier contends this passage contradicts and invali- 
dates our subsequent holdings that the “objective rea- 
sonableness” tests for excessive force and qualified im- 
munity are the same. It does not. Hammer involved 
circumstances not at issue here or in the subsequent 
line of cases Saucier challenges. Graham articulated a 
new objective reasonableness test that was different 
from what had been the clearly-established “shock-the- 
conscience” test. The amount of force used in Hammer 
violated the Fourth Amendment because it was objec- 
tively unreasonable, but an objectively reasonable offi- 
cer could have believed that his conduct did not “shock 
the conscience” and thus was in fact lawful under the 
legal test used at the time. Such an outcome is specifi- 
cally contemplated by the qualified immunity test, par- 

14a 

ticularly the first prong.4 
See, e.g., Chew v. Gates, 27 

F.3d 1432, 1446-50 (9th Cir. 1994) (affirming qualified 
immunity because the training and use of police dogs 
did not contravene clearly established law). 

Unlike the situation in Hammer, our subsequent line 
of cases which have equated the merits of the “objec- 
tive reasonableness” inquiry in a use-of-force case with 
the “objective reasonableness” inquiry in a qualified im- 
munity defense do not eliminate the availability of 
qualified immunity as a defense in excessive force 
cases. A defendant will always be entitled to qualified 
immunity when the law governing his or her conduct 
was not clearly established—the first prong of the 
qualified immunity defense. 

As a fallback position, Saucier argues that even if the 
district court applied the correct legal test to his quali- 
fied immunity defense, the amount of force he used in 
arresting Katz was so minimal that it was per se 

4 Most of the Supreme Court’s qualified immunity discussion in 
Anderson focuses on the proper formulation of the “clearly esta- 
blished” prong. See Anderson, 483 U.S. at 639-41, 107 S. Ct. 3034; 
cf. Harlow, 457 U.S. at 818-19, 102 S. Ct. 2727 (“If the law was 
clearly established, the immunity defense ordinarily should fail, 
since a reasonably competent public official should know the law 
governing his conduct.”). Although in Anderson the Court re- 
jected the argument that qualified immunity is never available in 
Fourth Amendment cases, the Court did not address the appli- 
cation of the second prong of the qualified immunity analysis, let 
alone its application in excessive force cases. See Anderson, 483 
U.S. at 643-44, 107 S. Ct. 3034; see also Graham, 490 U.S. at 399 n. 
12, 109 S. Ct. 1865 (expressly reserving the question whether 
qualified immunity is available in excessive force cases). 

15a 

reasonable.5 We disagree. The facts are in dispute. 
According to Katz, without warning or speaking to him, 
Saucier and Parker approached him from behind, grab- 
bed his banner, dragged him about fifty feet, and tossed 
him into the back of a van so violently that he narrowly 
avoided serious injury. Taking these facts as true for 
the purpose of summary judgment, no reasonable offi- 
cer could have believed that the alleged amount of force 
used to arrest Katz was necessary under the circum- 
stances. See Liston, 120 F.3d at 976 (“[W]e must pay 
careful attention to (1) the severity of the crime at 
issue; (2) whether the suspect poses an immediate 
threat to the safety of the officers or others; and 
(3) whether the suspect actively resists detention or at- 
tempts to escape.”). Unfurling a banner at a public 
event does not appear to be a particularly severe crime. 
Katz was sixty years old and wearing a leg brace. 
There is no indication that he was armed or dangerous. 
From all that appears at this stage of the case, he did 
not pose an immediate threat to the safety of the 
officers or anyone else. Although Saucier disputes 
whether Katz resisted arrest, Katz says he did not. 

In sum, taking the facts as asserted by Katz in the 
light most favorable to him, no reasonable officer could 
have believed that the amount of force used was lawful. 
See, e.g., Sheth v. Webster, 145 F.3d 1231, 1238 (11th Cir. 
1998) (officer not entitled to qualified immunity for 

5 The question of the reasonableness of force is usually a 
question of fact for the jury. “However, on summary judgment, the 
court may make a determination as to reasonableness when, 
viewing the evidence in the light most favorable to [the plaintiff], 
the evidence compels the conclusion that [the officer’s] use of force 
was reasonable.” Hopkins, 958 F.2d at 885. 

16a 

pushing, handcuffing, and dragging plaintiff in absence 
of justification); Alexis v. McDonald’s Restaurants of 
Massachusetts, Inc., 67 F.3d 341, 353 (1st Cir. 1995) 
(“[W]e are not persuaded that the record evidence com- 
pelled the conclusion that the force with which [the de- 
fendant officer] effected the sudden, unannounced, vio- 
lent seizure and removal of Alexis’s person was objec- 
tively reasonable . . . .”). Saucier was not entitled to 

summary judgment as a matter of law. 

CONCLUSION 

The district court correctly relied on our long line of 
cases consistently holding that the reasonableness in- 
quiry as to whether a defendant is entitled to the de- 
fense of qualified immunity in a claim of excessive force 
under the Fourth Amendment is the same as the rea- 
sonableness inquiry on the merits of such a claim. Genu- 
ine issues of material fact are in dispute as to whether 
Saucier used excessive force in effecting Katz’s arrest. 
The district court did not err in denying Saucier’s mo- 
tion for summary judgment predicated on qualified im- 
munity. 

AFFIRMED. 

17a 

APPENDIX B 

UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA 

No. C-94-3466 DLJ 

ELLIOT M. KATZ AND IN DEFENSE OF ANIMALS, 
PLAINTIFFS 

v. 

UNITED STATES, MAJOR CORBIN LEE, 
SERGEANT STEVEN PARKER, PRIVATE DONALD 
SAUCIER, GENERAL GLYNN C. MALLORY, JR., BRIAN 
O’NEILL, AND DOES 1 THROUGH X, INCLUSIVE, 
DEFENDANTS 

[Filed: May 15, 1998] 

ORDER 

Now before the Court are defendant Saucier’s and 
defendants Mallory and Lee’s motions for summary 
judgment. Having considered the arguments of coun- 
sel, the papers submitted, the applicable law and the 
record in this case, the Court GRANTS IN PART and 

DENIES IN PART defendant Saucier’s motion and 

GRANTS defendants Mallory and Lee’s motion. 

18a 

I. BACKGROUND 

A. Factual Background and Procedural History 

Plaintiffs are In Defense of Animals, an animal rights 
organization, and Elliot Katz, its president. Defendants 
are Major Corbin Lee, Commanding Officer for the 
Military Police in the Presidio; Lieutenant General 
Glynn C. Mallory, Jr., Commanding General of the 
Sixth United States Army; Sergeant Steven Parker, 
squad leader on duty September 24, 1994 in the Presi- 
dio; and Private First Class Donald Saucier, military 
police officer on duty September 24, 1994 in the 
Presidio. 

By press release dated September 20, 1994 and other 
publicity, the National Park Service invited the public 
to attend base conversion celebration activities at the 
Presidio on September 24, 1994. See Exh. A attached to 
Plaintiffs’ Supplemental Opposition filed Mar. 22, 1998. 
The objective of the event was to commemorate “the 
Presidio’s historic transfer from military post to na- 
tional park” on October 1, 1994. Id. Government offi- 
cials, including Vice President Gore, gave speeches. 
Hundreds of people attended the event. 

Plaintiffs claim to have suffered civil rights violations 
caused by defendants at the base conversion celebra- 
tion. Plaintiffs filed their original complaint on Sep- 
tember 29, 1994, seeking damages, declaratory relief 
and injunctive relief. They allege that plaintiff Katz 
was prohibited from displaying a banner expressing 
sentiments critical of the treatment of animals in 
medical research to be conducted at the Presidio’s Let- 
terman Hospital. They allege that Katz was sitting be- 

19a 

hind a gate which blocked the public from the stage. 
They claim that as Vice President Gore began speaking 
about the Presidio becoming a “global learning center,” 
Katz, without saying anything, removed a cloth banner 
from his jacket. The banner was approximately 4 feet 
by 3 feet and stated “Please Keep Animal Torture Out 
of Our National Parks.” They allege that Katz intended 
to display the banner by hanging it over the fence so 
that it could be read by Vice President Gore and the 
other speakers. 

Plaintiffs claim that before Katz could display the 
banner, a Military Police officer grabbed him from be- 
hind, ripped the banner out of his hands, forcibly grab- 
bed him, and violently threw him into the police van. 
They allege that Katz was searched and handcuffed but 
never informed of the basis for his detention and never 
cited with violation of any law or regulation. Plaintiffs 
contend that they never received written notice of any 
restrictions on expressive activity on the Presidio dur- 
ing the September 24, 1994 event. 

The Court has dealt with a number of dispositive 
motions in this case. Most recently, and relevant to the 
instant motion, the Court granted summary judgment 
in favor of defendants Mallory and Lee on plaintiffs’ 
First Amendment claim. The Court found that defen- 
dants Mallory and Lee were entitled to qualified im- 
munity because plaintiffs’ First Amendment rights 
were not well-settled at the time of the base conversion 
celebration. The Court deferred ruling on defendants’ 
motion for summary judgment with regard to the 
Fourth Amendment claim. Mallory and Lee’s motion 
for summary judgment on the Fourth Amendment 
claim is now before the Court. 

20a 

On October 3, 1997, defendant Saucier moved for 
summary judgment on the Fourth Amendment claim. 
Plaintiffs filed their opposition on October 22, 1997, and 
defendant Saucier replied on October 28, 1997. The 
matter was heard on November 12, 1997, at which time 
the Court granted the parties leave to file supplemental 
briefing. The Court took defendant Saucier’s motion 
for summary judgment under submission on February 
27, 1998. 

B. Legal Standard 

The Federal Rules of Civil Procedure provide for 
summary adjudication when “the pleadings, deposi- 
tions, answers to interrogatories, and admissions on 
file, together with the affidavits, if any, show that there 
is no genuine issue as to any material fact and that the 
party is entitled to a judgment as a matter of law.” 
Fed. R. Civ. P. 56(e). 

In a motion for summary judgment, “[i]f the party 
moving for summary judgment meets its initial burden 
of identifying for the court those portions of the 
materials on file that it believes demonstrate the ab- 
sence of any genuine issues of material fact,” the bur- 
den of production then shifts so that “the nonmoving 
party must set forth, by affidavit or as otherwise pro- 
vided in Rule 56, ‘specific facts showing that there is a 
genuine issue for trial.’ ” 

T.W. Elec. Service, Inc. v. 
Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 
Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317 
(1986)); Kaiser Cement Corp. v. Fischbach & Moore, 
Inc., 793 F.2d 1100, 1103-04 (9th Cir.), cert. denied, 479 
U.S. 949 (1986). 

21a 

A moving party who will not have the burden of 
proof at trial need only point to the insufficiency of the 
other side’s evidence, thereby shifting to the nonmov- 
ing party the burden of raising genuine issues of fact by 
substantial evidence. T.W. Electric, 809 F.2d at 630 
citing Celotex, 477 U.S. at 323; Kaiser Cement, 793 F.2d 
at 1103-1104. 

In judging evidence at the summary judgment stage, 
the Court does not make credibility determinations or 
weigh conflicting evidence, and draws all inferences in 
the light most favorable to the nonmoving party. T.W. 
Electric, 809 F.2d at 630-31 (citing Matsushita Elec. 
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 
(1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th 
Cir. 1991). 

The evidence the parties present must be admissible. 
Fed. R. Civ. P. 56(e). Conclusory, speculative testi- 
mony in affidavits and moving papers is insufficient to 
raise genuine issues of fact and defeat summary judg- 
ment. See Falls Riverway Realty, Inc. v. Niagara 
Falls, 754 F.2d 49 (2nd Cir. 1985); Thornhill Pub. Co., 
Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). 
Hearsay statements found in affidavits are inadmis- 
sible. See, e.g., Fong v. American Airlines, Inc., 626 
F.2d 759, 762-63 (9th Cir. 1980). The party who will 
have the burden of proof must persuade the Court that 
it will have sufficient admissible evidence to justify 
going to trial. The standard for judging a motion for 
summary judgment is the same standard used to judge 
a motion for a directed verdict: “whether the evidence 
presents a sufficient disagreement to require submis- 
sion to a jury or whether it is so one-sided that one 

22a 

party must prevail as a matter of law.” Anderson v. 
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). 

II. ANALYSIS 

Defendants Saucier, Mallory and Lee contend that 
they are entitled to summary judgment because they 
did not violate Katz’s Fourth Amendment rights. 

A. Probable Cause to Arrest 

The Fourth Amendment prohibits an officer from 
making an arrest without probable cause. Mackinny v. 
Nielsen, 69 F.3d 1002, 1005 (9th Cir. 1995) (citing 
United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir. 
1989), cert. denied, 498 U.S. 825 (1990)). Probable cause 
exists when the “facts and circumstances within the ar- 
resting officer’s knowledge are sufficient to warrant a 
prudent person to believe that a suspect has committed, 
is committing, or is about to commit a crime.” Id. 

Defendants claim that there was probable cause to 
arrest Katz. Defendants claim that Military Police per- 
sonnel had been briefed on the morning of the event 
and informed that demonstrations would not be al- 
lowed. Parker Depo. at 40. They refer to Katz’s own 
statement that during the speeches, he removed the 
banner from inside his jacket and “stood up, opened the 
banner up, unfolded the banner, and walked to the 
barrier.” Katz Decl. at 36:5-11. Katz states that he 
then placed the banner on top of the barrier so as to 
allow it to “fall down and open up so it would just be 
hanging from the barrier.” Id. Defendants argue that 
they had probable cause to believe that plaintiff was 
about to engage in an unlawful demonstration when 

23a 

they observed him unfurl the banner and approach the 
barricade. 

Plaintiffs argue that defendants lacked probable 
cause to believe that a crime was taking place because 
the First Amendment protected Katz’ demonstration. 
However, in its February 24, 1997 Order, this Court 
expressly found that the constitutional rights of pro- 
testors on the base were not well defined at the time of 
the base conversion celebration. The Court stated: 

In light of the transitional state of the Presidio on 
September 24, 1994, the Court finds that the 
Constitutional rights of protestors at the base were 
not well settled on that date. Because the rights of 
protestors at the Presidio were not well established 
on the date in question, a reasonable military officer 
could have concluded that preventing protests at 
the base was Constitutional. 

February 24, 1997 Order at 10 (footnote omitted). If a 
reasonable officer could have concluded that protests on 
base were unlawful on the day in question, then the 
officers had probable cause to believe that Katz was 
about to commit a crime when he approached the barri- 
cade carrying a banner. Accordingly, the decision to 
apprehend Katz did not amount to a Fourth Amend- 
ment violation. 

B. Use of Force 

Regardless of whether Katz’s arrest was supported 
by probable cause, defendants may have acted in vio- 
lation of the Fourth Amendment if they used excessive 
force to effectuate the arrest. A free citizen’s section 
1983 claim that law enforcement officials used excessive 

24a 

force in the course of seizing the person is analyzed 
under the Fourth Amendment’s “objective reasonable- 
ness” standard. Graham v. Connor, 490 U.S. 386, 388 
(1989). The question is whether the officers’ actions are 
“objectively reasonable” in light of the facts and circum- 
stances confronting them, without regard to their un- 
derlying intent or motivation. Id. at 397. 

Following Graham, in deciding a claim of excessive 
force, the Ninth Circuit considers the severity of the 
crime at issue, whether the suspect poses an immediate 
threat to the safety of the officers or others, and 
whether he is actively resisting arrest or attempting to 
evade arrest by flight. See Liston v. County of River- 
side, 120 F.3d 965, 976 (9th Cir. 1997); Alexander v. City 
and County of San Francisco, 29 F.3d 1355, 1366 (9th 
Cir. 1994), cert. denied, 513 U.S. 1083 (1995); Hopkins v. 
Andaya, 958 F.2d 881, 885 (9th Cir. 1991). 

According to Katz, after he placed the banner over 
the barrier, “[s]omebody grabbed me from behind, and 
somebody else tore the banner away.” Katz. Decl. 
37:14-15. He explains the incident as follows: 

Basically, I just held the banner in place so that Vice 
President Gore could see it, as well as give it a 
chance to unfold itself, because it never really, I 
don’t believe, totally unfolded. Before it unfolded— 
this thing happened really quick. So, I think it un- 
folded about half down, or something like that. And 
then I just held it in place while I think they had 
their arms around me, or one of them had their arms 
around me. ¶ 

Katz Depo. at 38:1-10. Katz was then removed from the 
crowd: 

25a 

. . . I think each one of them took an arm, and they 
sort of started sort of picking me up and kind of 
walking me out, kind of like very hurriedly, sort of 
like the bum’s rush: Let’s just get this guy out of 
here. 

Katz Depo. at 38:11-15. Katz states that once he 
reached the van, he was “shoved” into the van: 

I managed to kind of prevent myself from—as it was 
happening, it was like flashing that I was—my head 
was going to smash down, or I was going to go full 
length into—with my head going into the end of the 
van, and I was able to stop the downward and the 
forward motion by just catching myself so that I 
didn’t smash myself. 

Katz Depo. at 41:17-23. 

Defendants offer a markedly different description of 
the events in question. Officer Parker states that he 
approached Katz as Katz was reaching into his jacket. 
Parker Depo. at 42:25-26. Parker claims that he than 
put his “arms around [Katz], and [Katz] put both his 
arms onto the barricade. And I was trying to pull him 
up from the barricade, and he wasn’t letting go.” Id. at 
42:26-43:4. 

According to defendants, once the officers removed 
Katz from the barricade, Parker and Saucier “escorted 
him back approximately 50 yards” to the van stationed 
nearby. Parker Depo. at 46:24-26. Defendant Saucier 
states that plaintiff resisted going into the van “by 
sticking his legs up on the bumper and pushing away. 
So we had to use our heads putting him in the back of 
the vehicle.” Saucier Depo. 18:14-17. 

26a 

Defendants claim that the use of force was justified 
because at the time of the arrest, they were concerned 
for the safety of the public and for the speakers. Ser- 
geant Parker asserts that he approached Katz as Katz 
began moving toward the barricade and putting his 
hand inside his jacket. Parker Depo. at 42:3-6, 25-26. 
Parker states that he was concerned for the safety of 
the persons attending the ceremony. He explains that 
he perceived it to be his duty to ensure “the safety of 
the Vice President and personnel there” and particu- 
larly “to ensure that if this individual was trying to do 
something, pull a gun out or anything like that, I was 
there to ensure that that did not happen.” Id. at 43:11- 

16. 

The evidence suggests that defendants overstate the 
risk of danger posed by Katz. At the outset, the Court 
notes that Parker’s testimony directly conflicts with 
Katz’s statement that he approached the barrier only 
after removing the banner from his jacket. See Katz 
Decl. at 36:5-11 (stating that he “stood up, opened the 
banner up, unfolded the banner, and walked to the 
barrier”). Defendants’ own testimony further under- 
cuts their characterization of the risk posed by Katz. 
Parker states that he had been warned of the possi- 
bility of demonstrations on the morning of the event. 
Parker Depo. at 40. Saucier’s testimony suggests that 
defendants identified Katz in particular as a potential 
protestor. Saucier explained in his deposition, “Oh, I 
noticed [Katz] before we even—because he was pointed 
out as one of the potential, you know, activists. So we 
pretty much had a heads-up on him, sir.” Saucier Depo. 
at 14. Saucier testified that Parker informed him 
“exactly who this person was” and that Parker identi- 

27a 

fied Katz as “a possible activist” and “the person we 
need to keep on eye on.” Id. at 14-15. 

Moreover, the evidence now before the Court tends 
to contradict defendants’ characterization of the physi- 
cal threat posed by Katz. On the day of the event, Katz, 
a 60-year-old man, wore a brace on his leg because he 
had previously fractured his foot. Katz Depo. at 34:10- 

12. The brace extended from his foot up to a point just 
below his knee. Id. at 34:14-16. He was not wearing a 
shoe on the injured foot. Id. at 18-21. Finally, the 
Court notes Parker’s statement that Katz did not 
overpower the officers at any time. Parker Depo. at 
47:19-20. Based on this evidence, the Court finds that 
an issue of fact exists as to the nature of the risk pre- 
sented by Katz. 

The Court cannot conclude that the use of force was 
not excessive as a matter of law. The Court has review- 
ed the declarations and deposition testimony submitted 
by the parties, as well as a videotape of television news 
coverage of the events at the Presidio conversion cere- 
mony. See Pls.’ Exh. D attached to Pls.’ Complaint. 
Viewed in a light most favorable to plaintiffs, the video- 
tape shows two officers, on each side of Katz, removing 
him from the crowd and carrying or pulling him toward 
the van. Once they arrive at the van, the officers push 
Katz into the van. Given the nature of the crime at is- 
sue and the circumstances surrounding the incident, the 
Court cannot conclude that the use of force was reason- 
able as a matter of law. A triable issue of act exists as 
to whether defendants employed excessive force in re- 
moving Katz from the crowd and placing him in the 
police van. 

28a 

C. Qualified Immunity 

Defendants contend that they cannot be held liable 
for a violation of Katz’s Fourth Amendment rights be- 
cause they are entitled to qualified immunity. Under 
the doctrine of qualified immunity, officers “performing 
discretionary functions generally are shielded from lia- 
bility for civil damages insofar as their conduct does not 
violate clearly established statutory or constitutional 
rights of which a reasonable [police officer] would have 
known.” Harlow v. Fitzgerald, 457 U.S. 818 (1982). 
Even in the face of a clearly established constitutional 
right, police officers are entitled to qualified immu- 
nity if a reasonable police officer could have believed 
that the conduct involved was legal. See Anderson v. 
Creighton, 483 U.S. 635, 639 (1987). Thus the availabil- 
ity of qualified immunity depends upon the “ ‘objective 
legal reasonableness’ of the action . . . in light of the 
legal rules that were ‘clearly established’ at the time it 
was taken.” Id. (quoting Harlow, 457 U.S. at 818-19). 

The Ninth Circuit has established a two-prong analy- 
sis to determine whether qualified immunity is appro- 
priate. First, the district court must determine 
whether the law governing the official’s challenged con- 
duct was clearly established at the time the challenged 
conduct occurred. The second step then asks whether, 
under the clearly established law, a reasonable officer 
could have believed the conduct was lawful. Liston v. 
County of Riverside, 120 F.3d 965, 975 (9th Cir. 1997); 
Mendoza v. Block, 27 F.3d 1357, 1360 (9th Cir. 1994); 
Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 
1993). 

29a 

1. Clearly Established 

The Court must first decide whether defendants’ 
acted in violation of clearly established law governing 
plaintiffs’ constitutional rights. For qualified immunity 
purposes, “[t]he contours of the right must be suffi- 
ciently clear that [at the time the allegedly unlawful 
action is taken] a reasonable officer would understand 
that what he is doing would violate the law.” Mendoza, 
27 F.3d at 1361 (citing Anderson, 483 U.S. at 640). It is 
clearly established that the use of excessive force in an 
arrest violates the arrestee’s Fourth Amendment right 
to be free from an unreasonable seizure.1 

Chew v. 
Gates, 27 F.3d 1432, 1457 (9th Cir. 1994), cert. denied, 
513 U.S. 1148 (1995), (citing White v. Pierce County, 797 
F.2d 812, 816 (9th Cir. 1986)). 

2. Reasonable Officer 

The next step is to determine whether, under the 
clearly established law, a reasonable officer could have 
believed that defendants acted lawfully with regard to 
the degree of force used to remove Katz from the crowd 
and place him inside the van. See Liston, 120 F.3d at 
975; Mendoza, 27 F.3d at 1360; Act Up!, 988 F.2d at 871. 

1 Plaintiffs contend that the relevant question is whether the 
defendants acted in violation of clearly established law governing 
plaintiffs’ First Amendment rights. The Court rejects this 
approach for two reasons. First, the Court has already concluded 
that the law regarding the First Amendment rights of protestors 
was not clearly established on the day in question. Moreover, 
whether defendants are entitled to qualified immunity on the 
excessive force claim does not depend on whether the First 
Amendment rights of the protestors were well settled. To the 
contrary, the issue is whether the law regarding the use of force is 
clearly established. 

30a 

In the Fourth Amendment context, the qualified immu- 
nity inquiry is the same as the inquiry made on the 
merits. Hopkins, 958 F.2d at 885 n.3. The Court must 
consider whether the totality of the circumstances 
justified the particular type of seizure. See Curnow v. 
Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991). As 
recited above, the Court finds a question of fact regard- 
ing whether a reasonable officer could believe defen- 
dant’s use of force was lawful. See infra Section IIB. 
Defendants are therefore not entitled to summary judg- 
ment on the basis of qualified immunity. 

D. The Participation of Defendants Mallory and Lee 

Defendants Mallory and Lee contend that they are 
entitled to summary judgment on the Fourth Amend- 
ment claim because there is no evidence that either 
defendant participated in arresting Katz. A supervisor 
may be liable under section 1983 if (1) he was personally 
involved in the constitutional deprivation, or (2) there is 
a sufficient causal connection between the supervisor’s 
wrongful conduct and the constitutional violation. 
Mackinney v. Nielsen, 69 F.3d 1002, 1008 (9th Cir. 
1995); see also Harris v. Roderick, 126 F.3d 1189, 1204 
(9th Cir. 1997) (citing Taylor v. List, 880 F.2d 1040, 1045 
(9th Cir. 1989)). 

Defendant Mallory asserts that he played no role in 
the seizure of Katz. Mallory explains: 

I did not issue prior to the September 24, 1994 
ceremony any general orders or guidance as to how 
potential protestors should be handled, nor was I 
consulted as to how the military police or secret ser- 
vice agents intended to respond to protest activity. 

31a 

I did not participate in any order to apprehend Mr. 
Katz. 

Mallory Decl. at ¶ 5. Plaintiffs concede that there is 
little evidence of defendant Mallory’s personal involve- 
ment in the events at issue. They state that “there is 
limited evidence that [General Mallory] personally 
participated in, or set off a chain of actions leading to 
the use of excessive force . . . ” Pls.’ Supp. Opp. at 10, 

n.5. In fact, plaintiffs offer no evidence to connect Mal- 
lory to the force used to detain Katz. In light of the 
absence of any facts to suggest that defendant Mallory 
was involved in the events in question, he cannot be 
held liable under section 1983 in this case. Defendant 
Mallory is therefore entitled to summary judgment on 
plaintiff ’s Fourth Amendment claim.2 

Defendant Lee also seeks summary judgment on the 
theory that he played no role in the events at issue in 
this suit. He states that he was not present at the 
apprehension of plaintiff. At the time of the detention, 
Lee contends, he was in the “command cell” that had 
been set up on the Presidio to coordinate security for 
the event. Lee insists that he was not involved in the 
detention of Katz: 

Neither Sergeant Parker nor Private First Class 
Saucier sought instruction from me as to whether 

2 Plaintiffs contend that Mallory should remain in the case “be- 
cause he caused arrests in violation of the [F]irst [A]mendment to 
be made.” Pls.’ Supp. Opp. at 10, n.5. In its prior order, the Court 
granted summary judgment on the First Amendment claim in Mal- 
lory’s favor on the basis of qualified immunity. See Order dated 
February 27, 1997. As a result, there is no reason for Mallory to 
remain in this case. 

32a 

to apprehend Mr. Katz, nor did I order them at any 
time to apprehend Mr. Katz. 

Lee Decl. ¶ 5. 

In contrast, plaintiffs contend Lee played a “direct 
role” and “set in motion a series of acts by others that 
brought about the excessive force applied” to plaintiff 
Katz. Pls.’ Supp. at 8. The causal connection required 
to establish liability of a supervisor may be established 
by showing that the supervisor “set[] in motion a series 
of acts by others which the actor knows or reasonably 
should know would cause others to inflict the constitu- 
tional injury.” McRorie v. Shimoda, 795 F.2d 780, 783 
(9th Cir. 1986) (citing Johnson v. Duffy, 588 F.2d 740, 
743-44 (9th Cir. 1978)). 

Plaintiffs direct the Court’s attention to evidence in 
the record that Lee instructed his subordinates on the 
morning of the base conversion celebration. Parker 
testified that he understood Lee to be responsible for 
the overall planning of the security for the event. 
Parker Depo. at 40. Similarly, plaintiffs rely on Sau- 
cier’s testimony that he was following Lee’s orders at 
the time he apprehended Katz. Saucier testified that 
the officers “knew exactly what we were supposed to 
do” because Lee “told us exactly how to handle the 
situation.” Saucier Depo. at 26:10-14, 21-22. Plaintiffs 
have not, however, established the content of these in- 
structions. There is no evidentiary basis to support 
plaintiffs’ assertion that Lee’s directions on the morn- 
ing of the base conversion ceremony caused the alleged 
constitutional deprivation. 

Plaintiffs also attempt to establish Lee’s liability on 
the basis of his testimony reviewing the officers’ ac- 

33a 

tions. Lee testified at his deposition that he reviewed 
and approved of the officers’ actions on the day in ques- 
tion: 

Q. And is it accurate that you talked to them 
afterwards and told them that they had done exactly 
what they were supposed to do an in a professional 
manner? 

A. Yes. And it was my standard operating proce- 
dure, that after any major event, I would conduct an 
after-action review with my military policemen and 
my soldiers, and we would cover the events that had 
transpired. [¶] And, yes, I felt they did an extremely 
good job and they were very professional and cour- 
teous in dealing with everyone in the general public. 

Id. at 46:4-17. Lee’s after-the-fact statements express- 
ing approval of his subordinates’ actions are insufficient 
to establish the requisite causal link to support the 
extension of liability in this case. 

Plaintiffs also argue that Lee should be held liable for 
the unconstitutional actions of his staff because he was 
responsible for the placement of the vans near the site 
of the ceremony. Lee gave the following testimony at 
his deposition: 

Q. So it was understood from your orders to people 
there, that if someone was taken into custody at the 
site they were to be put into the van . . . ? 

A. That was one of the possible purposes that we 
could use that vehicle for. We had vehicles preposi- 
tioned in numerous areas. 

34a 

Lee Depo. at 38:5-12. The Court rejects plaintiffs’ 
contention that Lee’s decision regarding the placement 
of the vans, and the possible use of those vans to detain 
individuals, caused the alleged violation of plaintiff ’ s 
constitutional rights. Even assuming that Lee directed 
the use of the vans to detain individuals, nothing in the 
record supports the conclusion Lee caused the officers 
to employ excessive force in apprehending detainees. 

Plaintiffs have proffered no evidence to suggest that 
Lee knew or should have known that he acted in a way 
that would cause others to violate Katz’s Fourth 
Amendment rights. See McRorie, 795 F.2d at 783. As a 
result, plaintiffs have failed to establish a direct causal 
link between Lee’s directions and the alleged constitu- 
tional violation. Lee therefore cannot be held liable 
under section 1983 for the acts of his subordinates. 

III. CONCLUSION 

For the reasons stated above, the Court hereby 

GRANTS IN PART and DENIES IN PART defendant 
Saucier’s motion for summary judgment and GRANTS 

defendants Mallory and Lee’s motion for summary 
judgment. 

IT IS SO ORDERED. 

Dated: May 15, 1998 

/s/ D. LOWELL JENSEN 

D. LOWELL JENSEN 
United States District Judge 

35a 

APPENDIX C 

UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA 

No. C-94-3466 DLJ 

ELLIOT M. KATZ AND IN 
DEFENSE OF ANIMALS, PLAINTIFFS 

v. 

UNITED STATES, MAJOR CORBIN LEE, 
SERGEANT STEVEN PARKER, 
PRIVATE DONALD SAUCIER, 
GENERAL GLYNN C. MALLORY, DEFENDANTS 

[Filed: Feb. 24, 1997] 

ORDER 

On February 5, 1997, the Court heard arguments 
on defendant Mallory and defendant Lee’s motion for 
summary judgment. J. Kirk Boyd and David H. 
Williams appeared on behalf of plaintiffs; Elliot M. Katz 
and R. Joseph Sher appeared on behalf of defendants 
Major Lee and General Mallory. Having considered the 
arguments of counsel, the papers submitted, the appli- 
cable law, and the record in this case, the Court hereby 
GRANTS in part and DEFERS in part defendants’ 
motion for summary judgment. 

36a 

I. BACKGROUND 

A. Factual Background and Procedural History 

Plaintiffs are In Defense of Animals, an animal rights 
organization, and Elliot Katz, its 60-year-old president. 
Defendants are Major Corbin Lee, Commanding Officer 
for the Military Police in the Presidio; Lieutenant 
General Glynn C. Mallory, Jr., Commanding General of 
the Sixth United States Army; Sergeant Steven 
Parker, squad leader on duty September 24, 1994 in the 
Presidio; and Private First Class Donald Saucier, mili- 
tary police officer on duty September 24, 1994 in the 
Presidio.1 

Plaintiffs filed their original complaint on September 
29, 1994, seeking monetary damages as well as declara- 
tory and injunctive relief. Plaintiffs allege that defend- 
ants violated their civil rights on September 24, 1994 
while Katz was attending a public gathering at the San 
Francisco Presidio. Specifically, Katz alleges that on 
September 24, 1994 he was prohibited from placing a 
protest banner on a gate in front of the stage where 
Vice President Gore and others were speaking. 
Plaintiff Katz alleges that he was taken from the crowd, 
through the use of unnecessary and excessive force, and 
placed in a police van before ultimately being released 
without having charges filed against him. 

1 Brian O’Neill, Superintendent of the Golden Gate National 
Recreation Area is also a defendant in this complaint. However, 
the complaint against Superintendent O’Neill arises from activities 
at the Presidio after it became a National Recreation Area and is 
therefore not relevant to the instant motion. 

37a 

Vice President Gore’s speech was part of base con- 
version celebration activities at the Presidio. By press 
release dated September 20, 1994 and other publicity, 
the National Park Service invited the public to attend 
an event to be held at the Presidio on September 24, 
1994 “commemorating the Presidio’s historic transfer 
from military post to national park” on October 1, 1994. 
Hundreds of people attended the event. Plaintiff Katz 
alleges that the banner was confiscated from him by 
defendants in order to prevent him and his organization 
from expressing sentiments critical of the treatment of 
animals in medical research to be conducted at the 
Presidio’s Letterman Hospital. 

Katz was sitting in the front of the crowd behind a 
gate which blocked the public from the stage. He 
alleges that as Vice President Gore began speaking 
about the Presidio becoming a “global learning center,” 
Katz, without saying anything, removed a cloth banner 
approximately 4 feet by 3 feet which stated “Please 
Keep Animal Torture Out of Our National Parks” with 
the intent of displaying the banner by hanging it over 
the fence so that it could be read by Vice President 
Gore and the other speakers. Katz claims that before 
he could do so, a Military Police officer grabbed him 
from behind, ripped the banner out of his hands, grab- 
bed him, and violently threw him into the police van. 
He was searched and handcuffed but never informed of 
the basis for his detention or cited with violation of any 
law or regulation. Katz alleges that he never received 
written notice of any restrictions on expressive activity 
at the Presidio during the September 24, 1994 event. 

On February 15, 1995 the Court dismissed plaintiffs’ 
damage claims against the United States and ordered 

38a 

plaintiffs to file an amended complaint clarifying de- 
fendant Lee’s role in the incident. 

On March 22, 1995, plaintiffs filed a First Amended 
Complaint, which alleged additional facts relating to 
defendant Lee and named Lieutenant General Glynn 
Mallory, Sergeant Steven Parker, and Private First 
Class Donald Saucier as additional defendants.2 Defend- 
ant Parker had not been served and is not before this 
Court. Defendants Mallory and Lee now move the 
Court for summary judgment on the grounds that 

1) they are entitled to qualified immunity on the First 
Amendment cause of action; 2) they are not liable for 
the actions of the arresting officers; and 3) no First 
Amendment violation occurred. 

B. Legal Standard 

The Federal Rules of Civil Procedure provide for 
summary adjudication when “the pleading, depositions, 
answers to interrogatories, and admissions on file, 
together with the affidavits, if any, show that there is 
no genuine issue as to any material fact and that the 
party is entitled to a judgment as a matter of law.” 
Fed. R. Civ. P. 56(e). 

In a motion for summary judgment, “[i]f the party 
moving for summary judgment meets its initial burden 
of identifying for the court those portions of the mate- 
rials on file that it believes demonstrate the absence of 
any genuine issues of material fact,” the burden of 
production then shifts so that “the nonmoving party 

2 Plaintiffs inadvertently named the United States as a de- 
fendant in their amended complaint. They acknowledge that the 
United States has been dismissed from this case. 

39a 

must set forth, by affidavit or as otherwise provided in 
Rule 56, ‘specific facts showing that there is a genuine 
issue for trial.’ ” T.W. Elec. Service, Inc. v. Pacific Elec. 
Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) 
(citing Celotex Corp. v. Catrett, 477 U.S . 317 (1986)); 
Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 
F.2d 1100, 1103-04 (9th Cir.), cert. denied, 479 U.S. 949 
(1986). 

A moving party who will not have the burden of 
proof at trial need only point to the insufficiency of the 
other side’s evidence, thereby shifting to the non- 
moving party the burden of raising genuine issues of 
fact by substantial evidence. T.W. Electric, 809 F.2d at 
630 citing Celotex, 477 U.S. at 323; Kaiser Cement, 793 
F.2d at 1103-04. 

In judging evidence at the summary judgment stage, 
the Court does not make credibility determinations or 
weigh conflicting evidence, and draws all inferences in 
the light most favorable to the nonmoving party. T.W. 
Electric, 809 F.2d at 630-31 (citing Matsushita Elec. 
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 
(1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th 
Cir. 1991). 

The evidence the parties present must be admissible. 
Fed. R. Civ. P. 56(e). Conclusory, speculative testi- 
mony in affidavits and moving papers is insufficient to 
raise genuine issues of fact and defeat summary judg- 
ment. See Falls Riverway Realty, Inc. v. Niagara 
Falls, 754 F.2d 49 (2nd Cir. 1985); Thornhill Pub. Co., 
Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). 
Hearsay statements found in affidavits are inadmiss- 
ible. See, e.g., Fong v. American Airlines, Inc., 626 

40a 

F.2d 759, 762-63 (9th Cir. 1980). The party who will 
have the burden of proof must persuade the Court that 
it will have sufficient admissible evidence to justify 
going to trial. The standard for judging a motion for 
summary judgment is the same standard used to judge 
a motion for a directed verdict: “Whether the evidence 
presents a sufficient disagreement to require sub- 
mission to a jury or whether it is so one-sided that one 
party must prevail as a matter of law.” Anderson v. 
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). 

II. ARGUMENTS 

A. Liability of Mallory and Lee 

The first question presented is whether defendants 
Mallory and Lee can be held liable for the alleged 
violation of Katz’s First and Fourth Amendment rights. 
Defendants argue that they cannot be held liable on the 
First Amendment cause of action because they are 
entitled to qualified immunity from liability and that 
they cannot be held liable on either cause of action 
because they were not responsible for the arresting 
officers’ conduct. 

1. Immunity of Mallory and Lee 

Under the doctrine of qualified immunity, officers 
“performing discretionary functions generally are 
shielded from liability for civil damages insofar as their 
conduct does not violate clearly established statutory or 
constitutional rights of which a reasonable [police 
officer] would have known.” Harlow v. Fitzgerald, 102 
S. Ct. 2727, 2738 (1982). However, even in the face of a 
clearly established constitutional right, police officers 
are entitled to qualified immunity if a reasonable police 

41a 

officer could have believed that the conduct involved 
was legal. Anderson v. Creighton, 107 S. Ct. 3034, 3038- 
39 (1987). Thus the availability of qualified immunity 
depends upon the “ ‘objective legal reasonableness’ of 
the action . . . in light of the legal rules that were 
‘clearly established’ at the time it was taken.” Ander- 
son, 107 S. Ct. at 3038 (1987) (quoting Harlow, 102 S. 
Ct. at 2738-39). 

The Ninth Circuit has described the proper analysis 
for determining whether qualified immunity is appro- 
priate: 

First, the district court must determine whether the 
law governing the official’s challenged conduct was 
clearly established at the time the challenged con- 
duct occurred. The second step then asks whether, 
under the clearly established law, a reasonable 
officer could have believed the conduct was lawful. 
This is a test of the ‘objective reasonableness’ of the 
defendant’s actions.” 

Mendoza v. Block, 27 F.3d 1357, 1360 (9th Cir. 1994) 
(citations omitted). 

1. Established law at the Time of the Challenged 
Conduct 

a. Free Speech Fora 

In Perry Educational Ass’n v. Perry Local Educa- 
tors’ Ass’n, 460 U.S. 37 (1983), the Supreme Court 
recognized three distinct fora in First Amendment 
analysis: the “traditional” or “quintessential” public 
forum, the “designated” public forum, and the “non- 
public” forum. 

42a 

The traditional public forum consists of places such as 
streets or parks which “ have immemorially been held 
in trust for the use of the public and, time out of mind, 
have been used or [sic] purposes of assembly, com- 
municating thoughts between citizens, and discussing 
public questions.” Perry, 460 U.S. at 45. 

The designated public forum is a public place which 
the State has opened to the public for the purpose of 
expressive activity. Perry, 460 U.S. 37, 45 (1983). 
Intent is required to create a designated public forum: 
“The government does not create a public forum by 
inaction or by permitting limited discourse, but only by 
intentionally opening a nontraditional forum for public 
discourse.” Cornelius, 473 U.S. 788, 802 (1985). 

A nonpublic forum is “[p]ublic property which is not 
by tradition or designation a forum for public communi- 
cation.” Perry, 460 U.S. at 46. 

b. Regulations Permissible in Each Forum 

If a facility is a traditional or designated public 
forum, the government may establish reasonable “time, 
place, and manner” restrictions on speech, but such 
restrictions must be (1) content-neutral;3 (2) narrowly- 
tailored to further an important government interest; 
and (3) leave open ample alternative means of communi- 
cation. Perry, 460 U.S. at 45; Ward v. Rock Against 
Racism, 109 S. Ct. 2746, 2753 (1989) (citing Clark v. 
Community for Creative Non-Violence, 468 U.S. 288, 
293 (1984)). 

3 If the regulations are content-based, they are subject to strict 
scrutiny and presumptively invalid. R.A.V. v. City of St. Paul, 112 
S. Ct. 2538 (1992) 

43a 

If a facility is a nonpublic forum, the government has 
a lesser burden, but must nonetheless show that the 
restrictions on First Amendment activity are reason- 
able and viewpoint-neutral. Perry, 460 U.S. at 46. 

c. The Status of the Presidio 

From the foregoing, it appears clear that the status 
of defendant’s rights depends critically on whether the 
Presidio was a designed public forum or a non-public 
forum on the date in question. Generally, military 
bases are not traditional public fora. “A military base 

. . . is ordinarily not a public forum for First 
Amendment purposes even if it is open to the public.” 
United States v. Albertini, 472 U.S. 675, 684 (1985). 
However, the Presidio, particularly on the day in ques- 
tion, was not a typical military base. As the late Judge 
Peckham wrote of the Presidio, “thousands of tourists 
visit the Presidio each month to inspect Fort Point, an 
historical monument, or to enjoy the open spaces and 
greenery the Presidio grounds provide.” CCCO-West- 
ern Region v. Fellows, 359 F.Supp. 644 (N.D.Cal. 1972). 

While the public nature of the Presidio might not 
have sufficed to convert it into a designated public 
forum, the Presidio’s invitation to the public on the day 
in question might well have done so. In a press release, 
the Golden Gate National Recreation Area stated that 

The public is invited to attend a special pre- 
sentation by Vice President Al Gore at 10:00 a.m. on 
Saturday, September 24 at Pershing Square on the 
main post of the Presidio, San Francisco. The 
address will begin a week of activities commemo- 
rating the Presidio’s historic transfer from military 
post to national park. 

44a 

The Vice President will speak about this one-of-a- 
kind base conversation and is expected to announce 
several new environmental initiatives. Other digni- 
taries scheduled to speak are Secretary of the 
Interior Bruce Babbitt, Senator Dianne Feinstein 
and Congresswoman Nancy Pelosi. 

Thus, not only was the public expressly invited to the 
base, it was asked to participate in the process of 
moving the Presidio from military to civilian control. 
The conversion of the Presidio to a civilian park was a 
controversial development, and the Park’s future was a 
matter of public concern, as was evidenced both by Dr. 
Katz’s protest and by the presence of a number of 
prominent politicians at the event. 

In light of the transitional state of the Presidio on 
September 24, 1994, the Court finds that the Consti- 
tutional rights of protestors at the base were not well 
settled on that date.4 Because the rights of protestors 
at the Presidio were not well established on the date in 
question, a reasonable military officer could have con- 
cluded that preventing protests at the base was Consti- 
tutional. Therefore, the defendants are entitled to 
qualified immunity for the alleged deprivation of 
plaintiffs’ First Amendment rights. 

4 In reaching this conclusion the Court expresses no opinion on 
the merits of plaintiff ’s First Amendment complaint. For the 
reasons discussed in Section II.B., infra, a decision on this question 
is not now required. 

45a 

2. Responsibility of Mallory and Lee 

a. Connection to the Arrest 

Generally, government supervisors are not subject to 
vicarious liability, but are liable only for their own 
conduct. See, e.g., Monell v. Department of Social 
Services, 436 U.S. 658, 694 n. 58. However, supervisors 
may be liable for failing to adequately train and/or 
supervise those under their control if it can be shown 
that the supervisors acted with “deliberate indif- 
ference” or “gross negligence.” See Bergquist v. 
County of Cochise, 806 F.2d 1364, 1370 (9th Cir. 1986). 
In Bergquist, the court reaffirmed that “the required 
causal connection between supervisor conduct and the 
deprivation of a constitutional right is established 
either by direct personal participation or by setting in 
motion a ‘series of acts by others which the actor knows 
or reasonably should know would cause others to 
inflict the constitutional injury.’ ” Id. (quoting Johnson 

v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)). How- 
ever, in a footnote the Court pointed out that a plan or 
policy on the part of supervisors “cannot be proved 
through reference to a single unconstitutional activity 
unless ‘proof of the incident includes proof that it was 
caused by an existing unconstitutional . . . policy.’ ” 
Id. at 1370, n.9 (quoting City of Oklahoma City v. 
Tuttle, 471 U.S. 808 (1985)). 

Here, the proof of a link between the arrest of Katz 
and the defendants consists of declarations by Lee and 
Mallory and a policy letter allegedly circulated by 
Mallory. The policy letter, dated May 4, 1994 (more 
than four months before the arrest of Dr. Katz) states 
in full: 

46a 

1. Picketing, demonstrating, sit-ins, protest 
marches, political speeches and other acts of public 
persuasion (to include circulation of petitions for 
signature, distribution of political handbills, flyers, 
signs and carry placards) are prohibited by Army 
regulation and will not be conducted on the Presidio 
of San Francisco without permission. 

2. No one shall enter or remain on this post for 
any of the above purposes and such entry will 
constitute a violation of Title 18 USC Sec. 1382, 
which provides in part that: “Whoever within the 
jurisdiction of the United States, goes upon any 
military . . . reservation, post, fort arsenal, yard, 
station for any purpose prohibited by law or lawful 
regulation . . . shall be fined not more than $500 or 
imprisoned not more than six months, or both.” 

3. You are hereby warned that violaters [sic] will 
be issued a citation to appear before the United 
States Magistrate. Application for permission to 
demonstrate may be made through the Command 
Executive Assistant. 

Exhibit B to Plaintiffs’ Opposition. A jury could rea- 
sonably conclude that Mallory’s circulation of the base 
policy letter was an act which Mallory knew or should 
have known would lead to the violation of plaintiff 
Katz’s First Amendment rights. This policy letter is 
thus sufficient to create a triable issue of fact as to 
Mallory’s role in the alleged suppression of Dr. Katz’s 
speech.5 It does not, however, tie Mallory to the Fourth 

5 Given the Court’s conclusion that General Mallory is entitled 
to qualified immunity on the First Amendment claim, however, the 
conclusion that he can be tied to the incident is largely irrelevant. 

47a 

Amendment violation, as the letter states that violators 
of the policy would be issued a citation, not arrested. 

Plaintiffs also seek to rely on the affidavits of Lee 
and Mallory in which both men express the opinion that 
First Amendment activity was not permitted at the 
Presidio. It is not clear exactly how the subjective 
beliefs of Lee and Mallory led to the arrest of Dr. Katz, 
as there is no evidence that this belief was communi- 
cated to others. Plaintiffs further argue that “it is 
simply not believable that Private Saucier or Sergeant 
Parker issued the order to ban all first amendment 
activity on September 24, 1994.” Opposition at 8: 11-12. 
This is exactly the sort of proof, the use of a single 
incident to show the existence of an unconstitutional 
policy, that was expressly prohibited in Bergquist. 

There is thus nothing, other than Lee’s position as 
commanding officer of the military police at the Pre- 
sidio and his view on the Constitutionality of protests 
within the Presidio, to suggest that he participated in a 
plan or policy to deprive plaintiff Katz of his Consti- 
tutional rights.6 Therefore, although the policy letter 

6 In its opposition to defendants’ motion to dismiss, incor- 
porated by reference into its current opposition, plaintiff argues 
that Judge Armstrong’s decision in Veterans’ Speakers Alliance v. 
Fowler, C-91-4459 SBA is “on all fours” with the current suit. This 
interpretation of Veterans’ Speakers Alliance is faulty. In that 
case, the court found that “defendant Fowler directly participated 
in the unlawful arrest of plaintiff by actually ordering their arrest 
at the scene and that defendant Harrison personally participated 
in the wrongful conduct by issuing the bar letters to plaintiffs.” In 
contrast, here, the plaintiffs are wholly unable to make a showing 
of direct involvement by Lee and Mallory in the alleged Fourth 
Amendment violations. 

48a 

creates a triable issue of fact with regards to Mallory’s 
ties to the suppression of Dr. Katz’s speech, there does 
not appear to be any evidence sufficient to tie either 
man to the arrest. 

b. Rule 56(f ) 

Plaintiffs argue that if the Court finds that the causal 
link between these defendants and the arrest of Dr. 
Katz is not a triable issue, that the Court defer ruling 
on defendants’ motion pursuant to rule 56(f). Rule 56(f) 
states that when a party opposing a motion for 
summary judgment has demonstrated 

that the party cannot for reasons stated present by 
affidavit facts essential to justify the party’s opposi- 
tion, the court may refuse the application for judg- 
ment or may order a continuance to permit affi- 
davits to be obtained or depositions to be taken or 
discovery to be had or may make such other order 
as is just. 

Here, plaintiffs’ attorney states by way of affidavit that 
he has been unable to depose the arresting officers be- 
cause they have been stationed overseas during the 
pendency of this action. Counsel argues that the testi- 
mony of the men who made the arrest is instrumental in 
establishing whether Mallory and Lee played a role in 
the arrest and that plaintiffs cannot defend a motion for 
summary judgment without the opportunity to elicit 
this information. 

Defendants oppose plaintiffs’ Rule 56(f) argument on 
two grounds. First, they argue that plaintiffs have not 
been diligent in seeking discovery, and therefore cannot 
take refuge in Rule 56(f). See, e.g., Qualls v. Blue Cross 
of California, 22 F.3d 839, 844 (1994) (“We will only find 

49a 

that the district court abused its discretion if the 
movant diligently pursued its previous discovery op- 
portunities, and if the movant can show how allowing 
additional discovery would have precluded summary 
judgment.”) (emphasis in the original). Defendants 
maintain that plaintiffs’ counsel has not attempted to 
depose any of the other relevant parties including 
defendants Lee, Mallory, or O’Neil. Furthermore, 
defendants maintain that Private Saucier has been 
stationed at West Point since Mid-December of 1996, 
and yet plaintiffs have made no attempt to depose him.7 
Plaintiffs’ counsel answers that he has only recently 
learned that Private Saucier has returned to the United 
States. Furthermore, counsel contends that it makes 
no sense to take any depositions until those individuals 
who actually made the arrests have been deposed. 

Second, defendants argue that plaintiffs have failed 
to demonstrate what evidence they expect to uncover 
and how this evidence will be relevant to the liability 
of Mallory and Lee. This objection is without 
merit. Plaintiffs clearly wish to interview the arresting 
officers in order to determine whether they had been 
instructed by Mallory and Lee to arrest any 
demonstrators at the Presidio on the day in question. 
Such evidence would directly rebut the claim by 
Mallory and Lee that they did not participate in the 
arrest of Dr. Katz, and is thus highly material. 

The Court concludes that there is merit to the 
plaintiffs’ Rule 56(f) motion. The testimony of Parker 
and Saucier is directly relevant to the question of 

7 Sergeant Parker has still not been served in this action and is 
currently stationed in Germany. 

50a 

Mallory and Lee’s liability on the Fourth Amendment 
cause of action. Therefore, the Court will defer ruling 
on defendants’ motion for summary judgment on the 
Fourth Amendment cause of action in order to permit 
plaintiffs to conduct additional discovery. Plaintiffs 
shall have sixty days from the issuance of this order to 
question Private Saucier and Sergeant Parker re- 
garding the role of defendants Mallory and Lee in the 
arrest of Katz. The Court reminds counsel that such 
questioning need not necessarily be done by way of 
deposition, and that the plaintiffs may attempt to 
interview the relevant parties and provide their testi- 
mony by way of declaration. 

Along with their additions to the factual record the 
plaintiffs may also file a supplemental memorandum in 
opposition to defendants’ motion for summary judg- 
ment. This memorandum shall not exceed ten pages in 
length. No later than seven days after the plaintiffs file 
their additional papers, the defendants may file a 
supplemental reply, again not to exceed ten pages in 
length. The motion will then be under submission. No 
further hearing shall be held. 

B. First Amendment Violation 

Defendants argue that they are entitled to summary 
judgment on the issue of liability because the facts 
indicate that, as a matter of law, plaintiffs’ First 
Amendment rights were not violated. The Court 
considered this issue in defendants’ motion to dismiss 
but concluded that the record was insufficiently devel- 
oped to analyze the issue.8 The issue has now been fully 

8 Plaintiffs inexplicably misread the Court’s October 3, 1995 
order as deciding that a First Amendment violation occurred. The 

51a 

briefed and supported by affidavits and exhibits. There 
do not appear to be any factual issues in dispute, and 
the issue of liability appears to come down to whether 
or not the Presidio was a public forum on the date in 
question.9 

However, the Court finds that it need not decide 
whether or not there was a First Amendment violation 
in this case. Because the Court has already decided 
that defendants Mallory and Lee are entitled to 
qualified immunity on the alleged First Amendment 
violations, defendants’ motion for summary judgment 
on the merits of those allegations is rendered moot. 

III. CONCLUSION 

For the reasons specified above, the Court orders the 
following: 

1) Defendants’ motion for summary judgment on 
the First Amendment cause of action on the basis of 
qualified immunity is hereby GRANTED, as the 
First Amendment rights of the plaintiffs were not 
well-settled on the date in question. 

2) Pursuant to F.R.Civ.P. 56(f), the Court 
DEFERS ruling on defendants’ motion for sum- 

Court was quite clear in stating that it did not have sufficient 
information before it to rule on the Constitutionality of the officers’ 
conduct. Thus, plaintiffs’ argument that defendants’ motion for 
summary judgment is barred by the Law of the Case doctrine is 
rejected. 

9 Again, the plaintiffs badly misread prior proceedings on this 
question. Plaintiffs maintain that the settlement agreement 
entered into in Veterans Speakers Alliance, et al. v. Fowler, et al., 
C 91 4459 SBA conclusively establishes that the Presidio is a public 
forum. In fact it does nothing of the sort. The stipulation agreed to 
by the parties in that case simply stated that in some circum- 
stances military bases can become public fora. 

52a 

mary judgment on the Fourth Amendment Cause of 
Action pending addition [sic] submissions by the 
parties. 

3) Finally, the Court does not reach the merits of 
the defendants’ motion for summary judgment on 
the First Amendment cause of action. 

IT IS SO ORDERED. 

Dated: February 24, 1997 

/s/ D. LOWELL JENSEN 

D. LOWELL JENSEN 
United States District Judge 

53a 

APPENDIX D 

UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA 

No. C-94-3466 DLJ 

ELLIOT M. KATZ AND IN DEFENSE OF ANIMALS, 
PLAINTIFFS, 

v. 

THE UNITED STATES OF AMERICA, ET AL., 
DEFENDANTS 

[Filed: June 27, 1996] 

ORDER 

On May 8, 1996, the Court heard arguments on 
plaintiffs’ motion for declaratory relief and partial 
summary judgment. J. Kirk Boyd of Boyd, Huffman, 
Williams & Urla appeared on behalf of plaintiffs. R. 
Joseph Sher of the Department of Justice appeared on 
behalf of defendants. Having considered the arguments 
of counsel, the papers submitted, the applicable law, 
and the record in this case, the Court hereby DENIES 
plaintiffs’ motion. 

54a 

I. BACKGROUND 

A. Procedural History 

Plaintiffs are In Defense of Animals, an animal rights 
organization, and Elliot Katz, its 60-year-old president. 
Defendants are the United States of America; Major 
Corbin Lee, Commanding Officer for the Military Police 
in the Presidio; Lieutenant General Glynn C. Mallory, 
Jr., Command General of the Sixth United States 
Army; Sergeant Steven Parker, squad leader on duty 
September 24, 1994 in the Presidio; Private First 
Class Donald Saucier, military police officer on duty 
September 24, 1994 in the Presidio; and Brian O’Neill, 
Superintendent of the Golden Gate National Recreation 
Area. 

Plaintiffs filed their original complaint on September 
29, 1994, seeking damages, declaratory relief, and in- 
junctive relief. Plaintiffs claim that defendants violated 
their civil rights on September 24, 1994 during a public 
gathering at the San Francisco Presidio. Specifically, 
plaintiff Katz alleges that on September 24, 1994, he 
was prohibited from placing a protest banner on a gate 
in front of the stage where a speech by Vice President 
Gore and others was being given. Plaintiff Katz also 
alleges that he was taken from the crowd, using un- 
necessary and excessive force, and placed in a police 
van before being ultimately released without having 
charged filed against him. 

The speech in question was given to the public as 
part of base conversion celebration activities. By press 
release dated September 20, 1994 and other publicity, 
the National Park Service invited the public to attend 

55a 

an event to be held at the Presidio on September 24, 
1994 “commemorating the Presidio’s historic transfer 
from military post to national park” on October 1, 1994. 
Hundreds of people attended the event. Plaintiff Katz 
alleges that the banner was confiscated from him by 
defendants to prevent him and his organization from 
expressing sentiments critical of the treatment of 
animals in medical research to be conducted at the 
Presidio’s Letterman Hospital. 

On September 24, 1994, the date of the original 
incident, the Presidio was still a military installation.1 
On Wednesday, September 28, 1994, the National 
Park Service faxed plaintiffs a copy of their regulations 
regarding “First Amendment activity” for the Pre- 
sidio’s base conversion celebration on October 1, 1994. 
The regulations required plaintiffs to apply for a peti- 
tion before engaging in First Amendment activities, 
and restricted such activities to four designated areas. 

On September 29, 1994, plaintiffs sought a temporary 
restraining order asking the Court to enjoin defendants 
from preventing plaintiffs from distributing leaflets and 
materials at any of the public events at the Presidio 
on October 1, 1994. Plaintiffs claimed that the entire 
Presidio was a “public forum,” and that the restrictions 
on speech were invalid. Defendants claimed that cer- 
tain so-called “military footprint” areas of the Presidio 
were nonpublic fora, and that restrictions on speech 
were valid time, place, and manner restrictions. 

1 On October 1, 1994, the Presidio became part of the National 
Park Service. 

56a 

In light of the government’s representation that it 
would provide five additional designated areas within 
the Presidio for plaintiffs to engage in leafletting and 
other free speech activities on October 1, 1994, the 
Court denied plaintiff ’s motion for a temporary re- 
straining order. In an Order dated November 2, 1994, 
the Court explained in more detail its reasoning for 
denying the TRO. The Court concluded that plaintiffs 
had raised valid arguments as to the unconstitutionality 
of the Presidio regulations, but had not met the strict 
standard required for granting a TRO. 

On March 22, 1995, plaintiffs file a First Amended 
Complaint, which alleged additional facts relating to 
defendant Lee and named Lieutenant General Glynn 
Mallory, Sergeant Steven Parker, and Private First 
Class Donald Saucier as additional defendants. The 
first claim in the First Amended Complaint alleges that 
the defendants acted to unlawfully restrict plaintiffs’ 
First Amendment activity at a designated public forum 
and mistreated plaintiffs because of the content of 
their speech. Plaintiffs’ second claim alleges that the 
defendants violated plaintiff Katz’s fourth amendment 
right to be free from unreasonable searches and sei- 
zures and the use of excessive force. 

Defendants moved to dismiss the damages claims 
or, in the alternative, for summary judgment on two 
separate grounds: (1) that plaintiffs’ claims fail to state 
sufficient facts to satisfy the heightened pleading rule; 
and (2) that defendants are entitled to qualified immun- 
ity. At the same time, plaintiffs sought a declaration 
from this Court as to the legality of the Presidio’s 
regulations (1) that “No First Amendment activities 
are permitted within any areas [of the Presidio] 

57a 

permitted to the U.S. Army” because the area is not 
a public forum, and (2) that all “First Amendment 
Activities” are restricted to certain designated areas 
and that permits to conduct First Amendment activ- 
ities may be denied at the discretion of the Super- 
intendent. 

In an order dated October 3, 1995, the Court 
dismissed plaintiffs’ Fourth Amendment damages claim 
against Mallory with leave to amend by October 25, 
1995. In all other respects, the Court denied 
defendants’ motion to dismiss. In the same order, the 
Court also denied plaintiffs’ motion for partial summary 
judgment and declaratory relief, finding that plaintiffs 
were not entitled to a declaratory judgment that the 
Park Service’s restrictions on the location of dem- 
onstrations and leafletting are per se invalid as a 
matter of law and that application of the restrictions 
would have to be judged on a case-by-case basis. 

B. The October 1, 1994 Event 

The current motion for summary judgment chal- 
lenges the Park Service’s regulation as applied to 
plaintiffs at the Presidio’s base conversion celebration 
on October 1, 1994. According to plaintiffs, the areas 
designated by the Park Service for plaintiffs to pass out 
literature regarding the use of Presidio’s Letterman 
Hospital were out of sight and out of reach of the 
individuals who took the Letterman tour. Plaintiffs 
also allege, and defendants concede, that the Park 
Service treated plaintiffs differently than the event “co- 
sponsors” who were allowed to hand out leaflets and set 
up booths in the main event area. 

58a 

Plaintiffs ask this Court to declare that: (1) future 
regulation of First Amendment activities cannot pro- 
vide greater access to sponsors than to plaintiffs and 
other non-sponsors; (2) defendants’ governmental 
interest in protecting potentially unwilling listeners 
from being “hassled” with leaflets is not sufficient 
reason to justify time, place and manner restrictions; 
and (3) any regulation of First Amendment activity to 
designated areas must occur evenhandedly and provide 
for close proximity to the stream of pedestrian traffic. 
In response, defendants argue that (1) the law of the 
case doctrine precludes this Court from deciding the 
issues in plaintiffs’ motion; (2) plaintiffs do not have 
standing to secure First Amendment declaratory relief; 
(3) the Park Service’s restrictions are valid time, place 
and manner regulations; and (4) further discovery may 
be necessary pursuant to Rule 56(f). 

II. DISCUSSION 

A. Law of the Case Doctrine 

The law of the case doctrine does not bar this Court 
from hearing and deciding plaintiffs’ present summary 
adjudication motion. In general, the law of the case 
doctrine prevents courts from “reconsidering an issue 
previously decided by the same court, or a higher court 
in the identical case.” Securities Investor Protection 
Corp. v. Vigman, 74 F.3d 932, 937 (9th Cir. 1996) (quot- 
ing Milgard Tempering, Inc. v. Selas Corp. of Am., 902 
F.2d 703, 715 (9th Cir. 1990). For the doctrine to apply, 
however, “the issue in question must have been 
‘decided explicitly or by necessary implication in [the] 
previous disposition.’ ” Id. 

59a 

In this case, plaintiffs present new evidence and legal 
theories which were not available or before the Court in 
the previous summary judgment motion. Specifically, 
plaintiffs raise two new legal arguments based upon the 
deposition testimony of Superintendent Brian O’Neill 
and the written discovery responses of defendants. 
Because these new legal arguments were not addressed 
explicitly or by necessary implication in the prior 
summary judgment motion, the law of the case doctrine 
does not apply. 

Moreover, the Court’s October 1995 order denying 
summary judgment was not a final decision subject to 
the law of the case doctrine. As local rule 56-3 
emphasizes: 

Statements contained in an order of the court deny- 
ing a motion for summary judgment or summary 
adjudication shall not constitute issues deemed 
established for purposes of the trial of the case, 
unless the court so specifies. 

Civ. L.R. 56-3. “[U]ntil entry of judgment, [Rule 56(a) 
decisions] remain subject to change at any time. The 
doctrine of the law of the case does not limit the power 
of the court in this respect.” IB Moore’s Federal 
Practice 2d, Law of the Case, ¶0.404[2] at 124. Because 
the October 1995 order did not result in the entry of 
judgment, the law of the case doctrine does not prevent 
this Court from exercising its broad authority to revisit 
issues discussed in that order. 

B. Standing 

The Article III constitutional prerequisites to stand- 
ing are (1) an injury in fact which is concrete and not 
conjectural; (2) a causal connection between the injury 

60a 

and defendant’s conduct or omissions, and (3) a likeli- 
hood that the injury will be redressed by a favorable 
decision. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 
(1992). The burden of establishing standing rests with 
the party invoking federal jurisdiction. Id. 

Defendants argue that plaintiffs lack standing 
because the [sic] they have failed to satisfy the injury 
prong of the constitutional standing test. Where 
equitable relief from future conduct is sought, a litigant 
must demonstrate “a credible threat of future injury.” 
Presbyterian Church v. United States, 870 F.2d 518, 
528-29 (9th Cir. 1989) (citations omitted). Defendants 
argue that plaintiffs have no standing to request de- 
clarative relief addressing defendants’ future regulation 
of First Amendment activities because they have failed 
to demonstrate that they are “realistically threatened 
by a repetition of [their past] experience.” See City of 
Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). Plaintiffs 
respond that they have standing because the underly- 
ing dispute between the parties is “capable of repeti- 
tion, yet evading review.” See Southern Pacific Ter- 
minal Co. v. ICC, 219 U.S. 498, 515 (1911); Presbyterian 
Church, 870 F.2d at 528 (9th Cir. 1989). 

Because of the First Amendment context, the stand- 
ing issue presents a close question in this case. Courts 
often apply relaxed standing rules to First Amendment 
challenges to prevent chilling protected speech. See 
Blair v. Shanahan, 38 F.3d 1514 (9th Cir. 1994) (citing 
Ripplinger v. Collins, 868 F.2d 1043, 1047 (9th Cir. 
1989) and City Council v. Taxpayers for Vincent, 466 
U.S. 789, 798-99 (1984)). At a minimum, however, 
courts generally require that a plaintiff demonstrate a 
desire to continue to engage in the First Amendment 

61a 

activity proscribed by the challenged regulation and 
some reasonable likelihood that a similar opportunity to 
engage in that activity will arise. See Blair, 38 F.3d 
at 1519 (holding that plaintiff’s “First Amendment 
claim for a declaratory judgment is moot if he no longer 
wishes to engage in activity proscribed by the chal- 
lenged statute”); Golden v. Zwickler, 394 U.S. 103, 106 
(1969) (finding no standing when plaintiff no longer 
wished to distribute handbills because the member of 
Congress who was the target of the campaign was no 
longer running for office); Steffel v. Thompson, 415 U.S. 
452 (1974) (remanding for district court to determine 
whether petitioner still desired to engage in handbilling 
since the American involvement in Vietnam had sub- 
sided). 

Although plaintiffs have demonstrated a desire to 
continue to participate in First Amendment activity, on 
this record the Court cannot find that plaintiffs have 
demonstrated a reasonable likelihood that they will be 
presented with a similar opportunity to engage in that 
activity in the future. Plaintiffs fail to point to any 
evidence that they have sought or plan to seek accom- 
modation of the exercise of their First Amendment 
rights at any particular future Presidio event. More- 
over, they fail to present evidence that any organized 
events are planned at the Presidio in the foreseeable 
future. Instead, they note only that the future of the 
Presidio, especially the use of Letterman Hospital, has 
not been resolved and that they intend to “continue to 
voice their opinion and participate in public events in 
the Presidio.” 

This Court can only speculate about the possibility of 
injury to plaintiffs from a future application of the Park 

62a 

Service’s First Amendment restrictions. Although 
plaintiffs point to deposition statements by Super- 
intendent O’Neill indicating that defendants will con- 
tinue [sic] have sponsors and non-sponsors at future 
events, there is no certainty that conditions at future 
public events will mirror those which existed on 
October 1, 1994 or, indeed, that future events governed 
by Park Service regulations will even occur.2 In sum, 
given the precarious position of the Park Service at the 
Presidio and the unique nature of the October 1, 1994 
event, this Court cannot say with any certainty that the 
Park Service regulations will ever again be applied, 
much less applied to plaintiffs in the same manner and 
under the same circumstances as existed on October 1, 
1994. 

Each event at the Presidio has a different purpose 
and different logistics, and poses a different set of 
challenges for Park Service personnel charged with the 
responsibility of applying any restrictions on First 
Amendment activity. Despite the different circum- 
stances surrounding each event, however, a few general 
guidelines always will apply: persons wishing to distri- 
bute First Amendment literature must be permitted to 
reach the event audience, and any restrictions on their 
ability to leaflet within the Park must be both content- 
neutral and narrowly tailored. See Perry Educational 
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 
(1983); Ward v. Rock Against Racism, 109 S. Ct. 2746, 
2753 (1989) (citing Clark v. Community for Creative 
Non-Violence, 468 U.S. 288, 293 (1984)); see also 

2 At the hearing on this matter, defendants informed the Court 
that the Park Service’s tenure as operator of the Presidio may be 
limited. 

63a 

Bay Area Peace Navy v. United States, 914 F.2d 1224, 
1229 (9th Cir. 1990) (“an alternative is not ample if 
the speaker is not permitted to reach the intended 
audience”). Moreover, when an event in the Presidio 
focuses on a topic of public concern, the government 
must be particularly careful to neutrally apply any 
restrictions on First Amendment activity. As the 
Turner Broadcasting decision emphasized: 

At the heart of the First Amendment lies the prin- 
ciple that each person should decide for him or 
herself the ideas and beliefs deserving of expression, 
consideration, and adherence. Our political system 
and cultural life rests upon this ideal. (citations 
omitted) Government action that stifles speech on 
account of its message, or that requires the 
utterance of a particular message favored by the 
Government, contravenes this essential right. Laws 
of this sort pose the inherent risk that the 
Government seeks not to advance a legitimate regu- 
latory goal, but to suppress unpopular ideas or 
information or manipulate the public debate through 
coercion rather than persuasion. 

114 S. Ct. at 2458. 

Beyond these general constitutional guidelines, as 
this Court has already ruled, the application of Park 
Service regulations must be judged on a case-by-case 
basis. 

III. CONCLUSION 

For the reasons discussed above, the Court finds that 
plaintiffs have failed to meet their burden of demon- 
strating standing to request the declaratory relief 

64a 

sought. Plaintiffs’ motion for declaratory relief is 
DENIED. 

IT IS SO ORDERED. 

Dated: June 27, 1996 

/s/ D. LOWELL JENSEN 

D. LOWELL JENSEN 
United States District Judge 

65a 

APPENDIX E 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

No. 98-16298 
D.C. No. CV-94-03466-DLJ 

ELLIOT M. KATZ; IN 
DEFENSE OF ANIMALS, PLAINTIFFS-APPELLEES 

v. 

UNITED STATES OF AMERICA; CORBIN LEE, MAJOR; 
BRIAN O’NEILL; STEVEN PARKER, SERGEANT; 

GLYNN C. MALLORY, JR., GENERAL, DEFENDANTS 
AND 

DONALD SAUCIER, PRIVATE, DEFENDANT-APPELLANT 

[Jan. 10, 2000] 

ORDER 

Before: THOMPSON and GRABER, Circuit Judges, and 

CARROLL, District Judge* 

The panel has voted to deny appellant’s petition for 
rehearing. Judge Graber has voted to deny the petition 
for rehearing en banc, and Judges Thompson and 
Carroll have recommended denial of the petition for 
rehearing en banc. 

* The Honorable Earl H. Carroll, United States Senior District 
Judge for the District of Arizona, sitting by designation. 

66a 

The full court has been advised of the petition for 
rehearing en banc, and no judge of the court has 
requested a vote on it. Fed. R. App. P. 35(b). 

The petition for rehearing and the petition for 
rehearing en banc are DENIED.