Jonathan CROWELL and Samantha Kilmurray, Plaintiffs-Appellants, v. Robert KIRKPATRICK, Michael Gorman, Chuck Aleck, Peter Dimarino, Defendants-Appellees. Jeremy Evans, Defendant, 400 F. App'x 592

SUMMARY ORDER Plaintiffs-Appellants Jonathan Crowell and Samantha Kilmurray appeal from a September 14, 2009, order of the District Court of Vermont (Conroy, Mag. J.) granting

summary judgment to Defendants-Appellees, members of the Brattle-boro Police Department (BPD), on the Plaintiffs’ action brought under 42 U.S.C. § 1983. See Crowell v. Kirkpatrick, 667 F.Supp.2d 391 (2009). Plaintiffs, alleging that Defendants’ use of force in effecting their arrest was excessive, challenge the District Court’s conclusion both that the use of force was not unreasonable under the Fourth Amendment and that, even if it were unreasonable, Defendants were entitled to qualified immunity. We assume the parties’ familiarity with the facts and procedural history of the case and the issues on appeal. This Court “review[s] a grant of

summary judgment de novo, construing the record in the light most favorable to the non-moving party.” Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir.2007). “[Cjlaims of excessive force are to be judged under the Fourth Amendment’s ‘objective reasonableness’ standard.” Brosseau v. Haugen, 543 U.S. 194, 197, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (quoting Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).

Assessing whether the use of force to make an arrest is “reasonable” under the Fourth Amendment “requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)).

The reasonableness inquiry, an objective one, is “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. “[Tjhe fact finder must determine whether, in light of the totality of the circumstances faced by the arresting officer, the amount of force used was objectively reasonable at the time.” Amnesty America v. Town of West Hartford, 361 F.3d 113, 123 (2d Cir.2004).

The balancing must be done with sensitivity to the factual circumstances of each case, “including 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.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. Qualified immunity is evaluated on the basis of a two-part test. First, we must inquire whether “[tjaken in the light most favorable to the party asserting the injury ... the facts alleged show the officer’s conduct violated a constitutional right.” Saucier v.

Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Second, assuming we find that the facts alleged do establish a violation of a constitutional right, we must then “ask whether the right was clearly established.” Id. The Saucier Court emphasized that this second inquiry must be undertaken “in light of the specific context of the case, not as a broad general proposition.” Id. Further, “[ojnly Supreme Court and Second Circuit precedent existing at the time of the alleged violation is relevant in deciding whether a right is clearly established.” Moore v. Vega, 371 F.3d 110, 114 (2d Cir.2004).

Moreover, “[ejven if the right at issue was clearly established in certain respects, ... an officer is still entitled to qualified immunity if ‘officers of reasonable competence could disagree’ on the legality of the action at issue in its particular factual context.” Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir.2007). With respect to the appropriate sequence for this inquiry, the Supreme Court has clarified that “while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory.” Pearson v. Callahan, 555 U.S. 223,-, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009).

The District Court found both that Defendants’ use of force in this case was reasonable and that, assuming arguendo it was not, Plaintiffs’ rights in this situation were not clearly established. We find that the use of force in these particular circumstances was objectively reasonable and affirm. In this case, Plaintiffs were arrested for relatively minor crimes of trespass and resisting arrest and were not threatening the safety of any other person with their behavior.

However, they were actively resisting their arrest at the time they were tased by the officers in this case, having chained themselves to a several hundred pound barrel drum and having refused to free themselves, even though they admitted they were able to release themselves from the barrel at any time throughout the encounter. Plaintiff Kilmurray admits that prior to the officers’ use of their ta-sers, she had asked an acquaintance at the scene to call other members of their group to return to the property.

Moreover, both Plaintiffs admitted that the officers at the scene considered and attempted several alternate means of removing them from the property before resorting to use of their tasers, that the officers expressly warned them that they would be tased and that it would be painful, and that the officers gave them another opportunity to release themselves from the barrel after this warning. Finally, both Plaintiffs were given opportunities again to release themselves from the barrel prior to the subsequent uses of the tasers.

While we do not suggest that the use of a taser to effect an arrest is always, or even often, objectively reasonable, under the circumstances here, even construing the facts in the light most favorable to Plaintiffs, we conclude that it was. Because they had chained themselves to the drum, Plaintiffs could not have been arrested and removed from the scene by more conventional means, and the apparently imminent arrival of some number of their compatriots added a degree of urgency to the need to remove Plaintiffs quickly, before the presence of other protestors made that more difficult to accomplish.

The officers attempted to use other means to effectuate the arrest, none of which proved feasible, and used the taser only as a last resort, after warning Plaintiffs and giving them a last opportunity to unchain themselves from the barrel and leave the premises peacefully. Finally, Defendants set the taser on “drive stun” mode, which typically causes temporary, if significant, pain and no permanent injury. See Brooks v.

City of Seattle, 599 F.3d 1018, 1027 (9th Cir.2010) (“The use of the Taser in drive-stun mode is painful, certainly, but also temporary and localized, without incapacitating muscle contractions or significant lasting injury.”), rehearing en banc granted, 623 F.3d 911 (9th Cir.2010). Given the totality of those circumstances, it is difficult to see how a rational factfinder could conclude that the officers’ actions were anything other than reasonable.

In any event, since the facts alleged, even taken in the light most favorable to the Plaintiffs, do not amount to a constitutional violation, the officers are entitled to qualified immunity. It certainly was not clearly established that the use of force here violated Plaintiffs’ constitutional rights under the case law of the Supreme Court or this Circuit.

In support of their contention that the officers’ actions violated their clearly established constitutional rights, Plaintiffs cite to the Second Circuit’s decision in Amnesty America, a case involving allegations of the use of excessive force by police officers against abortion clinic protestors who were allegedly “purely passive” in resisting arrest. 361 F.3d at 123. The Court did find the allegations of excessive force in that case sufficient to defeat a motion for

summary judgment. See id. at 124. However, the plaintiffs there had alleged that the police used “far more force than was necessary, and inflicted severe pain on the demonstrators” in effecting their arrest, id. at 118, including claims that they had thrown a protestor face-down on the ground, “ramm[ed] [a protestor’s] head into a wall at high speed,” and committed several other acts of violence, id. at 123. The allegations of violence in that case were both decidedly more serious than the use of a taser here and significantly less clearly directed at the goal of effecting the arrest of the protestors.

Another recent Second Circuit case involving claims of the use of excessive force against protestors, Jones v. Parmley, 465 F.3d 46 (2d Cir.2006), similarly involved allegations of force that was both significantly greater in degree and less tethered to the goal of effecting an arrest. See id. at 52-53. We have found no Second Circuit case clearly establishing that conduct of the type and gravity alleged in this case would violate the Plaintiffs’ constitutional rights under the Fourth Amendment.

For these reasons, we hold that the use of force in this case was objectively reasonable, and that, as a result, Defendants did not violate Plaintiffs’ Fourth Amendment rights. Moreover, we hold that Defendants are in any event entitled to qualified immunity here. We have considered Plaintiffs’ other arguments on appeal and find that they are without merit or moot. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED. . The parties consented to the exercise of jurisdiction by a magistrate judge, pursuant to 28 U.S.C. § 636(c).