On May 13, 2013, the Ninth Circuit Court of Appeals decided Gonzales v. City of Anaheim et al. [i], which serves as an excellent review of the law as it pertains to reasonable force.  The facts of Gonzales, taken directly from the case, are as follows:

On September 25, 2009, at 2:00 AM in the morning, Officers Daron Wyatt and Matthew Ellis, members of the Anaheim Police Department, were responding to a routine call to check on a transient. While turning left at an intersection they were cut off by a van driven by Adolf Anthony Sanchez Gonzalez. Gonzalez made an illegal left turn in front of them and pulled into a gas station. The officers had to brake aggressively to avoid a collision, but they continued on their way to complete the call. Unable to locate the transient, the officers headed back the way they came only a minute or two later, and noticed that Gonzalez’s van was still at the gas station.

Their suspicions raised by the near collision, the officers ran the van’s plates through the mobile data terminal in their patrol car and discovered that the van had been involved in a prior narcotics stop. According to Wyatt’s testimony, the officers decided to follow the van for a short way to see if any law enforcement action was necessary. A few blocks later, they noticed that the van was weaving within its lane and decided to pull it over.

After the officers turned on their lights, the van continued driving for about 200 feet before making a wide-sweeping turn to pull over. The officers pulled in behind the van and approached the vehicle from both sides; Ellis approached on the driver’s side and Wyatt on the passenger’s side. As Wyatt approached, he saw Gonzalez reach back with his right hand toward the area between the driver and the passenger seats. Wyatt drew his gun and yelled at Gonzalez, warning that if Gonzalez reached back again, he would shoot him.

Gonzalez clenched his hands tightly in his lap. Ellis told him to turn off the vehicle at least twice, but Gonzalez did not respond or comply. Ellis noticed that Gonzalez appeared to be concealing a plastic baggy in his right hand, which he believed could contain drugs. Both officers told Gonzalez to open his hands.

Gonzalez continued to ignore the officers’ orders. The officers reached through Gonzalez’s open windows to unlock the driver-and passenger-side doors. Wyatt reached through the now-open door and struck Gonzalez on the arm with his flashlight three times.

At this point, Gonzalez moved his right hand toward his mouth, and his left hand toward the area between the seat and the door. Ellis believed Gonzalez was trying to swallow whatever was in his hand. According to Wyatt, Ellis—reaching through the driver-side window—attempted to apply a carotid restraint (or “sleeper hold”)1 on Gonzalez. Ellis claims that he was attempting only to gain control of Gonzalez’s arms. As Ellis struggled with Gonzalez, Wyatt radioed for assistance. Wyatt believed Gonzalez was attempting to strike Ellis, although Ellis himself testified that Gonzalez never attempted to hit him. Wyatt entered the van from the passenger side and, with both of his knees on the seat, began punching Gonzalez in the head and face.

Still struggling with the officers, Gonzalez tried to shift the van into gear by slapping the gearshift with his right hand. Ellis, in an attempt to stop Gonzalez from shifting the van into gear, hit him on the back of the head three times with his flashlight. Gonzalez nonetheless managed to put the  car into drive and pulled away with Wyatt still in the passenger seat.

According to Wyatt, Gonzalez “floor[ed] the accelerator.” Wyatt moved from his knees to a sitting position and yelled at Gonzalez to stop. Wyatt then attempted to knock the vehicle’s gearshift out of gear, but Gonzalez slapped his hand away. Without giving another warning, Wyatt pulled out his gun and shot Gonzalez in the head. According to Wyatt, the van had traveled “approximately fifty feet” in “less than ten” and possibly “less than five” seconds. After the shot, the van hit a parked vehicle and came to a stop. Other officers then arrived and removed Gonzalez from the van, handcuffed him, and performed chest compressions. Gonzalez died shortly thereafter. [ii]

Gonzales’ father and other family members sued the City and officers for excessive force under the Fourth Amendment.  The district court granted summary judgment for the city and officers.  The plaintiff’s appealed to the Ninth Circuit Court of Appeals.

On appeal, the plaintiffs argued that he officers used excessive force in five instances during the encounter that led to Gonzalez’s death.  The five instances of alleged excessive force are as follows:

(1) Wyatt’s use of his flashlight to hit Gonzalez on the arm; (2) Ellis’s attempt to place Gonzalez in a carotid restraint;(3) Wyatt’s punches to Gonzalez’s head and face while Ellis was  attempting to restrain him; (4) Ellis’s strikes to the back of Gonzalez’s head with the flashlight; and (5) Wyatt’s close-range shot to Gonzalez’s head. [iii]

The Ninth Circuit began by examining the law that pertains to analyzing the reasonableness of a use of force.  The lead case for use of force is the Supreme Court case of Graham v. Connor. [iv]  First, the Ninth Circuit noted that according to Graham v. Connor, they must “balance the level of force used against the need for that force.” [v]  Second, the court noted, according to Graham v. Connor, there are three factors they must consider when evaluating the reasonableness of a use of force incident.  The three factors are as follows:

(1) the severity of the crime, (2) whether the suspect posed an immediate threat to the officers or others, and (3) whether the suspect was actively resisting arrest. [vi]

Lastly, noting that use of force cases are very fact specific, the court noted that they must, in addition to the factors above, consider the “totality of the circumstances.” [vii]

The Ninth Circuit then set out to examine the facts of the case in light of the above rules.  The court first analyzed whether the flashlight strikes Gonzalez’s arm constituted excessive force.  The court noted that, at the time of the strikes, Gonzalez had refused to obey the officer’s commands to open his hands and turn off his vehicle.  Citing a Seventh Circuit case, the court stated:

Officers may use a reasonable level of force to gain compliance from a resisting suspect who poses a minor threat. [viii]

The Ninth Circuit then held that the flashlight strikes to Gonzalez’s arm were not excessive force in light of his refusal to obey the officers.

Second, the court analyzed whether the carotid restraint, which was alleged, the punches to the face and the flashlight strikes to the head were excessive force.  Here, the court looked to the factors from Graham v. Connor.  First to consider is the seriousness of the crime at issue.  In this case, the officers had reason to believe that Gonzalez possessed illegal drugs and was trying to destroy the evidence.  The court noted that this was a serious, “felony-grade offense.” [ix]

The second factor from Graham v. Connor was whether the suspect posed a threat to the officer or others.  The court noted that his is “undoubtedly the most important factor.” [x]  The court stated the relevant facts as follows:

Here, both officers testified that they saw Gonzalez reach down with his left hand between the driver’s side door and the seat. At that moment, a reasonable officer in their position could be concerned that Gonzalez was concealing a weapon in that area. Given Gonzalez’s repeated refusal to obey the officers’ orders and his multiple furtive reaches, the officers had reason to suspect danger. Then, when Gonzalez tried to shift the van into  drive with an officer in the vehicle, the situation became substantially more dangerous, and the officers’ justification for force increased commensurately. [xi]

Thus, the court held that because of the possibility of hidden weapons and the threat posed by the running vehicle, this second factor weighed in favor of the officers.

The third factor from Graham v. Connor was whether the suspect was actively resisting or attempting to evade arrest by flight.  The court noted that in Mattos v. Agarano [xii], they previously held that a suspect who refused to get out of a car, stiffened her body and clutched her steering wheel to avoid being pulled from the car by officers was engaged in active resistance.  As such, the court stated that here, Gonzalez was engaged in active resistance when he struggled with the officers and then attempted flight when he put the van in drive and accelerated. Thus, this factor weighed in favor of the officers.

The court then stated:

Because all three Graham factors support the officers, they were justified in applying significant force. Not only was Gonzalez acting strangely, but the officers had reason to believe he was committing and then attempting to conceal a drug offense. He continually ignored the officers’ commands and resisted their attempts to physically restrain him. And when he attempted to drive away with an officer in the passenger seat, he made a volatile situation all the more dangerous. [xiii]

Lastly, the court considered whether it was excessive force to shoot Gonzalez as he put the car in gear and accelerated with the officer inside.  The plaintiffs argued that the moving vehicle did not pose a serious threat to the officer and that the officer’s statements regarding the moving vehicle were inconsistent.  Regarding the statements, the court stated:

The record taken as a whole does not support any inferences other than essentially what the officers claim: Wyatt was an unbuckled passenger in a rapidly accelerating van with an escaping and noncompliant suspect. Gonzalez’s flight could have killed or seriously injured Wyatt. This was not a case where Wyatt had time to deliberate and consider the most measured response; he testified that he tried to knock the vehicle’s gearshift out of gear and that he yelled at Gonzalez to stop. When these methods failed, further hesitation may have been fatal. Given the speed with which these events occurred, Wyatt was objectively reasonable in resorting to deadly force. [xiv]

As such, the court affirmed grant of summary judgment for the city and the officers.


Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



[i] No. 11-56360, 2013 U.S. App. LEXIS 9607 (9th Cir. Decided May 13, 2013)

[ii] Id. at 2-6

[iii] Id. at 7-8

[iv] 490 U.S. 386 (1989)

[v] Id. at 8

[vi] Id.

[vii] Id.

[viii] Id. at 9 (see See, e.g., Padula v. Leimbach, 656 F.3d 595, 603 (7th Cir. 2011) (holding that officers reasonably used “‘stern’ but not ‘severe'” baton strikes to control a noncompliant suspect); Gregory v. Cnty. of Maui, 523 F.3d 1103, 1106-07 (9th Cir. 2008) (force was not excessive when three officers tackled, pinned, and forcefully subdued an individual who was trespassing and refusing to comply with orders to drop his pen); Forrester v. City of San Diego, 25 F.3d 804, 807 (9th Cir. 1994) (upholding jury verdict in favor of officers; officers use of “pain compliance techniques” to arrest demonstrators was objectively reasonable).

[ix] Id. at 10

[x] Id.

[xi] Id. at 10-11

[xii] 661 F.3d 433, 441 (9th Cir. 2011)

[xiii] Id. at 11-12

[xiv] Id. at 16

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