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• 9TH CIRCUIT COURT

HEADWATERS FOREST DEFENSE,
Plaintiff,

and

MOLLY BURTON; VERNELL "SPRING"
M. LUNDBERG; MICHAEL MCCURDY;
ERIC SAMUEL NEUWIRTH; MAYA
PORTUGAL; LISA MARIE SANDERSON-
FOX; JENNIFER SCHNEIDER; TERRI
SLANETZ; NOEL TENDICK,
Plaintiffs-Appellants,
No. 98-17250
v.
D.C. No.
THE COUNTY OF HUMBOLDT, a
CV-97-03989-VRW
political subdivision of the State
OPINION
of California; HUMBOLDT COUNTY
SHERIFF'S DEPARTMENT; DENNIS
LEWIS, Sheriff; GARY PHILP, Chief
Deputy; MARVIN KIRKPATRICK,
Deputy; JOHN SYLVIA, Deputy;
CIARBELLINI, Sgt.; CITY OF EUREKA,
a political division of the State of
California; EUREKA POLICE DEPT;
BILL HONSAL, Captain; JAMES
MANOS, Sgt.,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding

Argued and Submitted
December 6, 1999--San Francisco, California
Filed May 4, 2000

Before: Myron H. Bright,1 Harry Pregerson, and
William A. Fletcher, Circuit Judges.

Opinion by Judge Harry Pregerson;
Concurrence by Judge Bright

Pepper spray is designed to inflict intense pain, disorienta-
tion, and panic. Manufacturer's instructions discouraged
spraying the agent from less than three feet. The Sheriff's
deputy in charge of chemical agent training recommended
application with a Q-tip only. A general order issued by
appellee Humboldt County stated that pepper spray was to be
used only as a defensive weapon, or when the law permits the
use of force.

During a demonstration at the headquarters of Pacific Lum-
ber Company in Scotia, California, appellant Molly Burton
and other protestors locked themselves together with black
bears. When Sheriff's deputies arrived, the officer in charge
decided that using pepper spray was appropriate.

The officers did not attempt to negotiate, warned the dem-
onstrators that they would apply pepper spray if they did not
release themselves from the black bears, and applied the agent
repeatedly at close range to the eyelids and faces of the prote-
stors when they did not comply. In some instances, the depu-
ties used Q-tips to apply the agent to the demonstrators' eyes.

The protestors who were sprayed experienced extreme
pain. The officers then appeared to have no trouble carrying
protestors out, and it took only ten minutes to extricate one
pair from a black bear with a grinder. When some protestors
were released from black bears, the deputies did not immedi-
ately remove them from the premises. Two more demonstra-
tions produced similar results.

Appellant Headwaters Forest Defense and nine protestors
who had been pepper-sprayed brought a civil rights action
against the County, the Sheriff's Department, Sheriff Lewis,
Chief Deputy Philp, and others. The complaint alleged that
the defendants' application of pepper spray to the nonviolent
protestors constituted unreasonable and excessive use of force
in violation of the Fourth Amendment.

On the defendants' motion for summary judgment, the dis-
trict court granted qualified immunity to the individual defen-
dants except to Lewis and Philp. However, the court denied
the motion as to the excessive force claims, concluding that
whether the use of pepper spray was reasonable was an issue
for a jury.

At trial, the district court granted judgment as a matter of
law for Lewis and Philp, ruling that they were entitled to qual-
ified immunity. The jury deadlocked as to the remaining
defendants, and the court declared a mistrial.

However, when the defendants renewed their motion, the
court granted it, ruling that there was no reasonable basis for
jurors to find that the officers' use of pepper spray was objec-
tively unreasonable under the circumstances. The court found
that the severity of the intrusion on the arrestees' personal
integrity was minimal; the primary governmental interests at
stake were quickly removing the trespassing plaintiffs and
preventing organized lawlessness by a large group of
protestors; and the protestors failed to show that the police
had any viable alternative for effecting the arrests. The dem-
onstrators appealed.

[1] Judgment as a matter of law is proper if the evidence,
construed in the light most favorable to the nonmoving party,
allows only one reasonable conclusion. If conflicting infer-
ences may be drawn from the facts, the case must go to the
jury.

[2] The district court failed to view the evidence in the light
most favorable to the plaintiffs as the nonmoving parties, and
to resolve all inferences and conflicts in their favor. The
court's decision was replete with assertions that the weight of
the evidence favored the defendants and conclusions reached
by resolving conflicts in the evidence against the nonmoving
parties.

[3] The Fourth Amendment prohibition against unreason-
able seizure permits law-enforcement officers to use only
such force to effect an arrest as is objectively reasonable
under the circumstances. The test for reasonableness is fact-
specific.

[4] Determining whether the force used is reasonable
requires a balancing of the nature and quality of the intrusion
on the individual's Fourth Amendment interests against the
countervailing governmental interests at stake. Assessing the
nature and quality of an intrusion requires the factfinder to
evaluate the type and amount of force inflicted. Weighing
governmental interests requires the factfinder to evaluate the
severity of the crime; whether the suspect posed a threat to the
safety of others; whether he was actively resisting arrest or
attempting to evade arrest; and other exigent circumstances.
The force applied must be balanced against the need for it.
When there is no need for force, any force is unreasonable.

[5] The district court erred in focusing on the absence of a
significant risk of physical injury from the use of pepper
spray. Whether the use of force poses a risk of injury is a fac-
tor to be considered in evaluating the need for force, but it is
not dispositive. [6] Moreover, the evidence established that
the protestors suffered excruciating pain. A rational juror
could have concluded that the intrusion was more than "mini-
mal."

[7] The governmental interests at stake did not compel the
conclusion that the use of pepper spray was reasonably neces-
sary in the totality of the circumstances. In assessing the gov-
ernmental interests, the district court failed to view the
evidence and inferences in a light most favorable to the plain-
tiffs.

[8] The decisions to use pepper spray had nothing to do
with the government's purported interest in quickly removing
the trespassing plaintiffs. If the officers used the pepper spray
to hasten the removal of protestors, failing to remove prote-
stors who had been released from black bears belied that
intent. [9] The evidence suggested that full-blast pepper
sprays actually delayed arrests and prolonged one incident.

[10] The decision to use pepper spray was not made
because of the presence of a large group of protestors. The
officer in charge testified that the decision was made solely
because of the difficulty in using a grinder to remove the
black bears. [11] The defendants testified that the pepper
spray was needed because a handful of protestors had used
lockdown devices.

[12] There was no evidence that the police needed to use
pepper spray to maintain order and preserve the rights of citi-
zens against a "large group" of "lawless " and "menacing"
protestors. The force used to effect arrests cannot be justified
on the basis of abstract notions of law and order.

[13] The protestors were nonviolent and unarmed. None
were physically menacing. [14] They posed no danger to
themselves. A reasonable factfinder could have concluded
that using pepper spray bore no reasonable relation to the
need for force.

[15] That the defendants were frustrated by the protestors
was irrelevant. [16] The reasonableness of a use of force must
be judged from the perspective of a reasonable officer on the
scene. [17] The decision to use pepper spray was not a "split-
second judgment" made in rapidly evolving circumstances.
The only exigency was the use of the lockdown devices, and
the decision was made before the officers were called to the
protests. A reasonable factfinder could have concluded that
the decision was not made in the heat of the moment.

[18] The only crime the protestors had committed was tres-
pass. Commission of a misdemeanor militates against finding
reasonable the force used to effect an arrest when the suspect
was nonviolent and posed no threat to the officers or others.
[19] The use of pepper spray is not reasonable simply because
police have the legitimate objective of making an arrest. A
rational juror could have concluded that the nonviolent tres-
pass did not render pepper spray necessary to effect the
arrests.

[20] Given conflicting evidence concerning available alter-
natives to pepper spray, the district court should not have
directed a verdict in favor of the defendants. Where the evi-
dence suggested that other tactics were available, reasonable-
ness of the force used was for the jury to decide.

[21] Because the facts were in dispute concerning the
amount of force used and the circumstances that might have
justified the force used, the district court erred in granting
qualified immunity to Sheriff Lewis and Chief Deputy Sheriff
Philp.

Judge Bright concurred separately, writing to urge the par-
ties to compromise their positions and settle the case.

_________________________________________________________________

COUNSEL

Mark Hughes, University of Denver, Denver, Colorado, for
the plaintiffs-appellants.

Nancy K. Delaney, Mitchell, Dedekam & Angell, Eureka,
California, for the defendants-appellees.

Margaret C. Crosby, American Civil Liberties Union Founda-
tion of Northern California, San Francisco, California, for the
amicus curiae.

_________________________________________________________________
OPINION

PREGERSON, Circuit Judge:

Nine environmental activists, along with an entity called
Headwaters Forest Defense, brought this action under 42
U.S.C. S 1983, alleging that the use of pepper spray on the
activists during three protests in Humboldt County constituted
excessive and unreasonable force in violation of their Fourth
Amendment rights. The named defendants included Hum-
boldt County and its Sheriff's Department; Humboldt County
Sheriff Dennis Lewis and Chief Deputy Sheriff Gary Philp,
who authorized the use of pepper spray; the City of Eureka
and its Police Department; as well as each law enforcement
officer who participated in the protesters' arrests. The district
court granted summary judgment on qualified immunity
grounds in favor of all individual defendants, except for Sher-
iff Lewis and Chief Deputy Sheriff Philp.2  A jury trial in this
case consumed nine days. At the close of plaintiffs' case-in-
chief, the district court ruled that Lewis and Philp were also
entitled to qualified immunity as a matter of law and dis-
missed the case against them. After deliberating for six hours
on the remaining claims, the jury announced that it was irrec-
oncilably deadlocked. The district court declared a mistrial
and set a new trial date. But eight weeks later, the district
court reversed itself and granted defendants' motion for judg-
ment as a matter of law.

Plaintiffs contend on appeal that the district court erred in
ruling that Sheriff Lewis and Chief Deputy Sheriff Philp were
entitled to qualified immunity as a matter of law because his-
torical facts were in dispute and that the court erred in direct-
ing a verdict in favor of the remaining defendants. We agree.

I.

Factual Background

In the fall of 1997, environmental activists staged three
nonviolent protests against what they perceived to be the
unnecessary logging of ancient redwood trees in the Headwa-
ters Forest along California's northern coast. During each pro-
test, two to seven protesters linked themselves together using
self-releasing lock-down devices known as "black bears." A
"black bear" is a ten to twenty-five pound steel cylinder
(about one-fourth of an inch thick) with a rod or post welded
into the center. The protesters placed their arms into the steel
cylinders and attached steel bracelets worn around their wrists
to the center rods or posts in the "black bears " by using moun-
tain climbers' carabiners. Each "black bear" linked two pro-
testers together. When in place, the devices completely
immobilized their arms and prevented their separation. By
simply using their hands to unclip the carabiners on the inside
of the cylinder, the protesters could disengage themselves
from the devices. If the protesters did not voluntarily agree to
release themselves, the lock-down devices made it difficult,
but not impossible, for law enforcement officers to take the
protesters into custody upon arrest. To forcibly remove "black
bears," the officers had to use a Makita grinder. A Makita
grinder is a hand-held electric grinder that can cut through
steel.

The protesters' use of these lock-down devices is at the
heart of this case. Since 1990, nonviolent environmental
activists had on many previous occasions used these and other
mechanical devices to link themselves physically together
during similar protests in Humboldt County. Over the years,
the devices became increasingly sturdy and more difficult for
the police to remove forcibly. The initial devices were bicycle
locks or lightweight metal cylinders, weighing less than five
pounds. By 1995, they had evolved into the "black bears" that
were used here.

In 1997, the Humboldt County Sheriff's Department orga-
nized a special response team comprised of Special Services
Deputies to deal with the environmental protests. The officers
selected for the team were those with special training and
experience in the use of a Makita grinder to remove lock-
down devices safely. By the fall of 1997, one of the officers
had used a Makita grinder to remove hundreds of lock-down
devices from the arms of environmental protesters. He had
done so safely, without causing injuries to either himself or
the protesters.

Nevertheless, because a Makita grinder generates sparks
when used, the defendants claim to have had a growing con-
cern about the danger involved in using it. So, in the summer
of 1997, the Humboldt County Sheriff's Department explored
alternatives for effecting the arrest of environmental protest-
ers in lock-down devices -- including the use of oleoresin
capsicum aerosol ("OC" or "pepper spray"). Defendants
Lewis and Philp consulted a certified trainer in the use of pep-
per spray, the county's risk manager, and its district attorney.
And they read much of the available literature on the subject.
By summer's end, defendants concluded that the use of a
lock-down device by any protester -- even an otherwise non-
violent protester who posed no danger to the public, himself,
or the arresting officers -- constituted "active resistance" to
arrest, warranting police use of pepper spray as a "pain com-
pliance technique."

But, according to then-California Attorney General Dan
Lungren, the use of pepper spray under these circumstances
was unprecedented; its use had been previously "limited to
controlling hostile or violent subjects." Even Sheriff Lewis
conceded at trial that no law enforcement officer in Humboldt
County, the State of California, or anywhere in the nation had
ever used pepper spray on nonviolent protesters as it was used
in this case. The defendants nonetheless contend, and the dis-
trict court found as a matter of law, that the officers' use of
pepper spray during the three protests at issue here was rea-
sonable and appropriate under the circumstances.

A. The Scotia Protest

The first protest took place on September 27, 1997, at the
headquarters of the Pacific Lumber Company in Scotia, Cali-
fornia ("the Scotia protest"). During the Scotia protest, plain-
tiffs Vernell "Spring" Lundberg (a minor at the time), Jennifer
Schneider, Molly Burton, and Eric "Sam" Neuwirth, along
with three others, ran into the Pacific Lumber Company
lobby, sat down in a circle, and locked themselves together
using the "black bears." Meanwhile, other activists held a
peaceful rally (including folk music and protest songs) and a
mock trial of the owner of Pacific Lumber Company on the
sidewalk in front of the Pacific Lumber Company building.
Still other activists hung protest signs from the roof of the
Pacific Lumber building.

Pacific Coast Lumber employees called the Humboldt
County Sheriff's Department, which dispatched its special
response team. Upon arrival, the officers observed that the
seven protesters had placed the "black bears" under their arms
and legs, making it particularly difficult to use a grinder to
remove them. The officer in charge decided that using pepper
spray was the most appropriate and safest way to arrest the
trespassing protesters. He and the other officers testified that
they made this decision solely because of the difficulty in
using a grinder in these circumstances. It was "immaterial" to
them that the protesters were peacefully engaged in an act of
civil disobedience, as opposed to being violent. And the pro-
testers outside the building were not a factor in their decision
to use the pepper spray on those inside the building. Indeed,
it is undisputed that the protesters both on the roof and outside
the building were nonviolent, did not interfere with ingress or
egress to and from the Pacific Lumber building, posed no
safety risks to the public or to the officers, and willingly dis-
persed when their rally and mock trial were ended or when
the police directed them to do so.

The Sheriff's videotape of the incident reveals that the offi-
cers never attempted to negotiate with the protesters. Once
they made the decision to use the pepper spray, the officers
simply warned the protesters repeatedly that if they refused to
release themselves from the "black bears" the officers would
apply pepper spray to their faces. The protesters tucked their
heads into their chests and refused to release. The officers
then forced four protesters' heads back and applied pepper
spray with a Q-tip to the corners of their closed eyes. The pro-
testers screamed in pain. The three other protesters, including
one who announced that she had asthma, then voluntarily
released. The officers put plastic handcuffs on these three pro-
testers and placed them on the couch right next to those still
protesting. They remained there for more than an hour, cheer-
ing on the others who continued protesting and excoriating
the officers for using pepper spray on them. At this point, the
officers did not offer to flush out the protesters' eyes with
water.

The four protesters who remained in the lock-down devices
were seated in sets of two. The circle of human legs and arms
had been broken. Nevertheless, the officers reapplied the pep-
per spray with Q-tips to the protesters' eyelids. The protesters
still did not release. Twenty minutes after the pepper spray
was first applied and six minutes after its second application,
the officers sprayed water into the eyes of the protesters to
dilute the OC, continuing to do so periodically for more than
an hour. Thereafter, the officers escorted the three protesters
who were never pepper sprayed out of the building and car-
ried the two pairs of remaining protesters out of the building
on stretchers. It took two officers just three minutes to carry
each of the two pairs of protesters out of the building; a few
other officers present opened doors and directed their move-
ment. The officers appeared to have no trouble lifting and car-
rying the protesters out. Once outside the building, one pair
of protesters voluntarily released themselves. A Makita
grinder was used to extricate the other pair from the "black
bears." It took ten minutes to remove the device by grinder.
The officers threw a fire blanket over the protesters to protect
them from the sparks generated by the grinder's use.

B. The Bear Creek Protest

The second protest took place on October 3, 1997, when
two pairs of protesters, including plaintiffs Michael McCurdy
and Noel Tendick, using "black bears" locked themselves to
two Pacific Lumber Company bulldozers at a remote logging
site on Pacific Lumber Company property (the "Bear Creek
protest"). Again the special response team was called to the
scene. The same officer in charge at the Scotia protest was in
charge at Bear Creek. He testified that he told the protesters
that the officers were going to use pepper spray on them if
they didn't release because "we're getting out of here quicker
that way." He also testified to his concern that using a grinder
would have presented a fire hazard because of the diesel fuel
and oil canisters around the bulldozers. He added that protest-
ers hiding in the woods presented an unspecified danger,
although the Sheriff's videotape does not show the threaten-
ing presence of any other demonstrators. The officers made
no attempt to negotiate with the protesters. They simply
threatened repeatedly to use pepper spray unless the protesters
released themselves from the "black bears." But before pro-
ceeding, the officers waited more than half an hour for the
videographer to arrive.

The Sheriff's videotape reveals that two protesters released
themselves from the "black bears" when threatened with the
immediate use of pepper spray. Despite repeated warnings,
two others refused. The last warning told the protesters that
they had "five minutes" to release themselves from the "black
bears." But the actual elapsed time between that last warning
and the first application of pepper spray was less than two
minutes. The officers applied the pepper spray with a Q-tip to
the closed eyes of both protesters. Despite the protesters'
pleas for water to flush the pepper spray out of their eyes, one
of the officers can be heard on the videotape saying that they
will only be given water if they release and that the pain will
only get worse in thirty seconds when he sprays the OC in
their faces. A minute later, he sprayed the OC directly into
both of the protesters' faces in short full bursts from inches
away. The videotape reveals that the blast of pepper spray ran
down one protester's face and into his mouth.

Five minutes later, the protesters again refused to release
and the officer in charge said that they "have all day to do this
. . . [and] all kinds of cans of chemical weapons." Protester
Tendick then said, "If you've got all day to do this, why don't
you cut us out?" To which the officer in charge responded,
"because we are already committed here." The officers then
offered to spray water from hand-held spray bottles onto the
protesters' faces to try to flush the pepper spray out. Tendick
testified that lightly spraying his face with water only made
the pain worse because the water caused the OC to drip into
his nose and mouth. On the videotape, Tendick can be heard
screaming in pain after the water was administered. Thereaf-
ter, a Makita grinder was safely used to cut both protesters
out. Despite the officers' stated concern for the danger posed
by using the grinder around fuel and oil canisters, the officers
did not remove the canisters when they decided to use the
grinder. No injuries resulted from the use of the grinder.

C. The Riggs Protest

The third protest took place less than two weeks later, on
October 16, 1997, in the Eureka office of Congressman Frank
Riggs. Plaintiffs Terri Slanetz, Lisa Sanderson-Fox, Maya
Portugal (a minor at the time), and Jennifer Schneider entered
the Congressman's office, dropped wood chips on the floor,
and chained themselves together using "black bears" around
a tree stump that another protester had brought into the Con-
gressman's office. Meanwhile, a crowd of fifty nonviolent
protesters gathered on the street outside the Congressman's
office.

Officers from the Eureka Police Department and from the
Humboldt County special response team arrived at the scene
in response to calls for assistance made by the Congressman's
staff. The Humboldt County special response team deter-
mined that the wood chips would create a fire hazard if a
grinder was used. Although Congressman Riggs's staff made
a vacuum cleaner available to them to remove the wood chips,
the officers chose not to use it. Instead, on the basis of the
Humboldt officers' recommendation, the Eureka Police Cap-
tain in charge authorized the use of pepper spray on the pro-
testers. Again no attempt at negotiation was made.

The Sheriff's videotape shows that the officers repeatedly
warned the protesters that pepper spray would be used if they
did not voluntarily release. One of the protesters declared that
they had to take a stand against the use of pepper spray
against nonviolent civil protesters. Another pleaded with the
officers not to use the pepper spray. She pointed out that the
protesters were all young women -- one a minor -- and
asked the officers if they would want someone to use pepper
spray on their own daughters. She also pointed out that the
protesters posed no danger to anyone. Nevertheless, the offi-
cers pulled each of the protester's heads back and applied
pepper spray to their eyes with a Q-tip. One protester, Maya
Portugal, claims that one of the officers pried open her eyes
and applied the pepper spray directly on them. Although the
videotape lends some support to this claim, it is ultimately
unclear whether this occurred. One of the protesters can be
heard on the videotape yelling, "no, don't open them [my
eyes]." The defendants deny that any of the protesters' eyes
were opened when the pepper spray was used.

At this point, no water was offered to wash the pepper
spray off the protesters' eyes. Seven minutes after the initial
application, one of the officers can be heard on the videotape
saying that water will be given if the protesters release them-
selves from the "black bears." At that point, one of the pro-
testers released, followed shortly thereafter by another,
leaving the two remaining protesters attached only to each
other. Then, one of the remaining protesters asked why the
officers could not physically carry them out of the Congress-
man's office and use a grinder to cut them out once they were
outside the building. An officer responded by saying that the
jail "would not accept you like this" and that it "is too danger-
ous to transport you like this."

One officer then stood within a foot of one of the remaining
protesters and sprayed the pepper spray directly into her face.
Within three minutes, the remaining two protesters released.
The officers then offered water from spray bottles to wash the
pepper spray off the protesters' faces.

II.

Procedural History

On October 30, 1997, the nine protesters on whom the
police had used pepper spray and an entity called the Headwa-
ters Forest Defense filed this action under 42 U.S.C. S 1983,
claiming that the application of pepper spray to the eyelids
and faces of nonviolent protesters constituted use of excessive
and unreasonable force to effect their arrests in violation of
their Fourth Amendment rights. Each plaintiff sought dam-
ages for the pain and emotional trauma that each suffered and
for the violation of their constitutional rights. Because no one
sought medical treatment for physical injuries, special dam-
ages were not claimed. But plaintiffs sought punitive damages
from the individual defendants.

On defendants' motion for summary judgment, the district
court granted all individual defendants qualified immunity
except for Humboldt County Sheriff Dennis Lewis and Chief
Deputy Sheriff Gary Philp, the officers who initially autho-
rized the use of pepper spray on the nonviolent protesters. The
court, however, refused to grant summary judgment in favor
of the defendants on the excessive force charges. On those
charges, the court stated in its written decision that whether
the use of pepper spray "is reasonable is for the jury to deter-
mine. Jury consideration is particularly appropriate here in
that OC, a chemical agent, has not been used in past demon-
strations." The court's decision noted that the parties vigor-
ously disputed what occurred before, during, and after the use
of pepper spray on the protesters during each protest. All of
the disputed facts directly addressed the question whether the
use of pepper spray was needed to effect the arrest of nonvio-
lent protesters in lock-down devices. For example, the court's
decision noted that the manufacturer's instructions on the can-
isters of pepper spray that the officers used "expressly dis-
couraged" spraying OC from distances of less than three feet.
Similarly, the decision noted that the Humboldt County Sher-
iff's deputy in charge of chemical agent training -- the only
certified trainer in the use of OC with whom Lewis and Philp
had consulted before authorizing its use -- recommended
applying pepper spray with a Q-tip only. Yet here, the officers
applied full blast sprays of OC into some of the protesters'
faces from just inches away.

In addition, the court noted that Humboldt County had only
one official general order that addressed police use of chemi-
cal agents such as pepper spray. And it stated in pertinent part
that:

       The department issues non-lethal aerosol chemical
       agents to each sworn member of the Department.
       This aerosol is furnished as a defensive weapon  for
       the protection of department members and as a pos-
       sible alternative to the additional use of force . .. .
       The chemical agent is intended for use in those cases
       wherein a member of the Department is attempting
       to subdue an attacker or a violently resisting sus-
       pect, or under other circumstances which under the
       law permit the lawful and necessary use of force,
       which is best accomplished by the use of a chemical
       agent.

(Emphasis added). Similarly, the Eureka Police Department
use-of-force policy statement "classified the use of OC-based
products as a compliance technique directly below intermedi-
ate force on the use-of-force continuum." (Emphasis added).
According to that policy statement, even intermediate force
may not be used on nonviolent suspects who are passively
resisting arrest. The policy stated in pertinent part that:

       [OC] shall be used instead of baton strikes whenever
       practical and when the failure to use it would result
       in the need to apply more force which holds the
       greater potential for injury. OC shall not be used to
       harass or punish a prisoner. Chemical agents are
       nonlethal devices designed to temporarily subdue or
       overcome [an arrestee] by spraying the agent into
       the face . . . ."

(Emphasis added).

The case proceeded to trial. After nine days, plaintiffs com-
pleted their case-in-chief. Thereupon, on defendants' motion,
the district court ruled that Lewis and Philp were entitled to
qualified immunity as a matter of law and dismissed the case
against them. After deliberating for only six hours, the jury
announced it was deadlocked.

The district court declined to give a formal Allen charge3 to
the jury as both parties requested, but the court did query the
jury foreperson "to get some sense from the jury of the degree
to which they [felt] that they [were] deadlocked." Without
polling each juror, the court satisfied itself that the jurors had
fully reviewed the evidence, considered each other's views,
and were irreconcilably deadlocked. In a colloquy with coun-
sel on the record but out of the jury's presence, the court
stated that the issue in this case is "a simple and straightfor-
ward one . . . . It's obviously one on which reasonable people
can differ." (Emphasis added). Thereafter, the district court
declared a mistrial, set a new trial date, and took under sub-
mission defendants' renewed motion for judgment as a matter
of law.

Eight weeks later, the district court granted defendants'
renewed motion, vacated the new trial date, and entered judg-
ment for the defendants, finding that "there is no reasonable
basis for jurors to find that the officers' use of [pepper spray]
was objectively unreasonable in light of the facts and circum-
stances confronting them." (Emphasis added). Plaintiffs
timely appeal. We have jurisdiction to review the final order
of the district court under 28 U.S.C. S 1291.
III.

A. Judgment as a Matter of Law

We review de novo the district court's grant of judgment as
a matter of law, see Acosta v. City and County of San Fran-
cisco, 83 F.3d 1143, 1145 (9th Cir. 1996), using "the same
standard as the district court . . . under Fed. R. Civ. P. 50(a)."
Forrett v. Richardson, 112 F.3d 416, 419 (9th Cir. 1997),
overruled on other grounds, ChromaLighting v. GTE Prod-
ucts Corp., 127 F.3d 1136 (9th Cir. 1997). Rule 50(a)(1) pro-
vides in pertinent part that:

       If during a trial by jury a party has been fully heard
       on an issue and there is no legally sufficient eviden-
       tiary basis for a reasonable jury to find for that party
       on that issue, the court may determine the issue
       against that party and may grant a motion for judg-
       ment as a matter of law against that party with
       respect to a claim . . . .

Fed. R. Civ. P. 50(a)(1).4

[1] "Judgment as a matter of law is proper if the evidence,
construed in the light most favorable to the non-moving party,
allows only one reasonable conclusion . . . ." Acosta, 83 F.3d
at 1145. "If reasonable minds could differ as to the import of
the evidence, however, a verdict should not be directed."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 -51 (1986).
Indeed, " `[i]f conflicting inferences may be drawn from the
facts, the case must go to the jury.' " Pierce v. Multnomah
County, Oregon, 76 F.3d 1032, 1037 (9th Cir. 1996) (quoting
Rutherford v. City of Berkeley, 780 F.2d 1444, 1448 (9th Cir.
1986)).5

[2] Here, in its written decision granting defendants judg-
ment as a matter of law, the district court acknowledged its
obligation to view the evidence in the light most favorable to
the plaintiffs as the nonmoving parties and to resolve all infer-
ences and conflicts in the evidence in their favor. But, as the
discussion below reveals, the district court failed to do so. Its
decision is replete with assertions that the weight of the evi-
dence favors the defendants and with conclusions that the
court reached by resolving conflicts in the evidence against
the nonmoving parties. In this regard, the district court erred.
As the Supreme Court has held in ruling on a motion for judg-
ment as a matter of law,

       the [district court] judge must ask himself not
       whether he thinks the evidence unmistakably favors
       one side or the other but whether a fair-minded jury
       could return a verdict for the plaintiff on the evi-
       dence presented.

Anderson, 477 U.S. at 252.

B. Excessive Force

[3] The Fourth Amendment prohibition against unreason-
able seizures permits law enforcement officers to use only
such force to effect an arrest as is "objectively reasonable"
under the circumstances. Graham v. Connor, 490 U.S. 386,
397 (1989); see also Chew, 27 F.3d at 1440-41. As we have
repeatedly said, whether the force used to effect an arrest is
reasonable "is ordinarily a question of fact for the jury." Lis-
ton v. County of Riverside, 120 F.3d 965, 976 n.10 (9th Cir.
1997) (citing, e.g., Forrester v. City of San Diego, 25 F.3d
804, 806 (9th Cir. 1994)); see also Barlow v. Ground, 943
F.2d 1132, 1135 (9th Cir. 1991). Although excessive force
cases can be decided as a matter of law, they rarely are
because the Fourth Amendment test for reasonableness is
inherently fact-specific. See Chew, 27 F.3d at 1443 (citing
Reed v. Hoy, 909 F.2d 324, 330 (9th Cir. 1989)). It is a test
that escapes "mechanical application" and "requires careful
attention to the facts and circumstances of each particular
case," Graham, 490 U.S. at 396, and thus naturally favors
jury resolution.

[4] According to Graham, "[d]etermining whether the force
used to effect a particular seizure 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 governmen-
tal interests at stake." 490 U.S. at 396 (quoting Tennessee v.
Garner, 471 U.S. 1, 8  (1985)) (emphasis added). Assessing
"the nature and quality" of a given "intrusion" requires the
fact finder to evaluate "the type and amount of force inflict-
ed." Chew, 27 F.3d at 1440. Weighing the governmental
interests involved requires the fact finder to evaluate such fac-
tors as "(1) the severity of the crime at issue, (2) whether the
suspect pose[d] an immediate threat to the safety of the offi-
cers or others, . . . (3) whether he [was] actively resisting
arrest or attempting to evade arrest by flight," and any other
"exigent circumstances [that] existed at the time of the arrest."
Chew, 27 F.3d at 1440-41 & n.5. As we have previously
explained, "the essence of the Graham objective reasonable-
ness analysis" is that " `[t]he force which was applied must be
balanced against the need for that force: it is the need for
force which is at the heart of the Graham factors.' " Liston,
120 F.3d at 976 (quoting Alexander v. City and County of San
Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994)) (emphasis
added). Thus, where there is no need for force, any force used
is constitutionally unreasonable. See P.B. v. Koch, 96 F.3d
1298, 1303-04 & n.4 (9th Cir. 1996).

We begin our analysis of the reasonableness of the force
used in this case by examining the district court's assessment
of the "nature" of the use of pepper spray and the "quality of
the intrusion" caused on the protesters' bodily integrity under
the Fourth Amendment. We will then examine the district
court's assessment of the countervailing governmental inter-
ests at stake, focusing first on the interests on which the dis-
trict court relied in granting defendants' motion for judgment
as a matter of law. We will then examine the governmental
interests addressed in Fourth Amendment jurisprudence that
the district court failed to consider. Such interests include the
safety threat, if any, posed by the protesters to the public, to
the officers, or to themselves; the exigencies, if any, bearing
on the decision to use pepper spray during each protest; the
severity of the protesters' crimes; and the alternatives avail-
able to the police to effect the arrests of the protesters.

1. The Nature and Quality of the Intrusion 

Here, the district court concluded that "the severity of the
intrusion upon the arrestees' personal integrity was minimal"
because it did not involve the threat of "deadly force or even
. . . a significant level of physical force. Rather the force used
was merely the infliction of transient pain without significant
risk of physical injury." We disagree with this characteriza-
tion of the intrusion.

[5] Although the absence of deadly force or physical blows
can mean that a intrusion on an arrestee is "less significant
than most claims of force," Forrester, 25 F.3d at 807, that fact
alone is not dispositive in excessive force cases. Under Fourth
Amendment jurisprudence, the law is well settled that a plain-
tiff may recover " `nominal damages without proof of actual
injury' " for unreasonable intrusions on one's bodily integrity.
Larez, 946 F.2d at 640 (quoting Carey v. Piphus, 435 U.S.
247, 266 (1978) (holding nominal damages are available
under 42 U.S.C. S 1983)). Indeed, in Wilks v. Reyes, 5 F.3d
412 (9th Cir. 1993), we expressly rejected the Fifth Circuit's
requirement that a plaintiff show "significant injury" to estab-
lish an excessive force claim under the Fourth Amendment.
Id. at 416 ("The law of this circuit entitles a plaintiff to an
award of nominal damages if the defendant violated the plain-
tiff's constitutional right . . . even if the plaintiff suffered no
actual damage." (emphasis added)). Thus here, the district
court erred in focusing on the purported absence of evidence
of a "significant risk of physical injury" from the use of pep-
per spray. Under Graham and Forrester , whether the use of
force poses a risk of permanent or significant injury is a factor
to be considered in evaluating the need for the force used in
a particular case -- but it is certainly not dispositive.

[6] Moreover, the evidence in the record does not establish
that the use of pepper spray here constituted a "minimal"
intrusion on the protesters' bodily integrity as a matter of law.
The evidence suggests that the protesters suffered excrucia-
ting pain when the OC was applied to their eyelids with a
Q-tip -- and even more so when sprayed into their faces in
full blasts from inches away. In fact, the Humboldt County
Sheriff's deputy in charge of chemical agent training testified
that pepper spray is designed to cause intense pain, a burning
sensation that causes mucus to come out of the nose, an invol-
untary closing of the eyes, a gagging reflex, and temporary
paralysis of the larynx. He also testified that its known psy-
chological effects are "disorientation, anxiety, and panic." On
this record, a rational juror could readily conclude that the
intrusion suffered was more than "minimal." 6

Indeed, our opinion in Forrester suggests that the nature
and uncontrollable pain caused by pepper spray distinguishes
it from the "pain compliance technique" found reasonable in
that case. Forrester upheld the use of "Orcutt Police Non-
chakus" or "OPNs," which are "two sticks of wood connected
at one end by a cord." 25 F.3d at 805. "OPNs " are used to
grip a resisting arrestee's wrist in a progressively tighter and
more painful manner until the arrestee ceases resisting. See id.
at 808 n.5. In Forrester, the police used OPNs on hundreds
of "Operation Rescue" demonstrators who were attempting to
shut down the operations of an abortion clinic by blocking
access to the facility and threatening injury to the medical
staff and patients. See id. at 805, 807. 7 In finding this use of
OPNs "reasonable" under the circumstances, we stated:

       Unlike the use of a lighted cigarette, which would
       create immediate and searing pain, the discomfort
       produced by the OPNs was gradual in nature. The
       videotape (which was seen by the jurors) illustrates
       that the police first applied a loose grip and then pro-
       gressively tightened their hold until the demonstra-
       tors stood and ceased resistance. The moment the
       demonstrators complied, the police released the
       OPNs.

Id. at 808 n.5.
Here, the videotape evidence reveals that the application of
the pepper spray with a Q-tip and then by short full blasts cre-
ated "immediate and searing pain." Yet the district court's rul-
ing fails to mention this evidence, let alone view it in a light
most favorable to the plaintiffs as the nonmoving parties.8

Moreover, unlike the use of OPNs as a "pain compliance
technique," using pepper spray does not permit the police
immediately to stop inflicting pain the moment the protesters
comply with the officers' demands. According to the defen-
dants, the only way to relieve the pain caused by pepper spray
is to flush it out thoroughly with water. Police training tapes
recommend using a "free-flowing hose to wash the victim's
face" or "the use of a big bucket of water in which the victim
can actually stick [his or her] face down into to get relief."
But here, the officers offered only to spray water in short
bursts onto the protesters' faces from hand-held plastic bot-
tles, which the evidence suggests may have actually exacer-
bated the pain by causing the OC to run into the protesters'
noses and mouths rather than flushing it out. Moreover,
whether water was offered at all for this purpose during each
protest is disputed.

2. The Governmental Interests at Stake

The district court found that the primary governmental
interests at stake during the three protests were in "quickly
removing the trespassing plaintiffs" and in "preventing the
organized lawlessness" of a "large group of protesters." The
court stated:
       In each incident, plaintiffs were part of a large group
       of protesters operating in an organized and concerted
       effort to invade private property, obstruct business
       and hinder law enforcement. Although these crimes
       are misdemeanors, "[t]he wholesale commission of
       common state-law crimes creates dangers that are far
       from ordinary. Even in the context of political pro-
       test, organized, premeditated lawlessness menaces in
       a unique way the capacity of a State to maintain
       order and preserve the rights of citizens." Bray v.
       Alexandria Woman's Health Clinic, 506 U.S. 263,
       287 (1993) (Kennedy, J., concurring).

[7] We disagree with the district court's characterization of
the evidence. In assessing the governmental interests, the
court failed to view the evidence in the record and all infer-
ences that could be drawn therefrom in a light most favorable
to the plaintiffs. Moreover, the court incorrectly applied the
Graham test and Justice Kennedy's concurrence in Bray.
When the evidence is viewed in the light most favorable to
the plaintiffs, it is clear that the governmental interests at
stake here do not compel the conclusion that the use of pepper
spray -- either with a Q-tip or by short full blasts -- was rea-
sonably necessary as a matter of law in the totality of the cir-
cumstances.

       i. Speedy Arrests

[8] The evidence in the record strongly suggests that the
officers' decisions to use pepper spray during each protest had
nothing to do with the government's purported interest in
"quickly removing the trespassing plaintiffs. " During the Sco-
tia protest, the deputies allowed the three protesters who had
complied with the police as soon as the pepper spray warnings
were given to remain on site -- and to continue to cheer on
their still-resisting cohorts. If the officers used the pepper
spray to hasten the removal of the protesters from private
property, failing to remove the protesters who had released
from the "black bears" belied this intent. Moreover, the
repeated applications of pepper spray actually prolonged the
incident for over an hour. Once the decision was made to
remove the protesters physically, all were out of the building
and in custody within six minutes. Ten minutes later, all were
safely ground-out of the lock-down devices.

[9] During the Bear Creek incident, the officers delayed
using the pepper spray for half an hour until the sheriff's
videographer arrived. In addition, one of the officers was
heard to say on the videotape that they "have all day to do
this." At Congressman Riggs' office, after the initial applica-
tions of pepper spray, two of the protesters voluntarily
released themselves from the lock-down devices, but they
were not immediately removed from the premises. Nor did the
officers physically remove the remaining two female protest-
ers still in the lock-down devices, despite their youth and
diminutive size. Instead, the officers chose to reapply the pep-
per spray in short full bursts into their faces. The evidence
suggests that full blast sprays of pepper spray actually delayed
the protesters' arrests and prolonged the incident.

Thus, the evidence simply does not support the district
court's conclusion that the use of pepper spray was needed to
remove the protesters from the premises quickly.

       ii. Organized Lawlessness

The district court concluded that one of the reasons the offi-
cers needed to use the pepper spray to effect the arrests of the
protesters was because "the officers had a substantial interest
in preventing the organized lawlessness" of a "large group of
protesters." Each incident involved two to seven protesters in
lock-down devices -- including six young women, two of
whom were sixteen and seventeen years old. During both the
Scotia and Riggs protests, the protesters in the lock-down
devices were demonstrating inside the Pacific Lumber Com-
pany building and Congressman Riggs's office. They were
physically and visually separated from the large peaceful
demonstrations that were taking place outside the two build-
ings. The evidence regarding the Bear Creek protest is at best
conflicting as to how many protesters -- other than the four
in lock-down devices -- were present. The officers claim that
many protesters were hiding in the woods. But there is no evi-
dence that a large, lawless group was anywhere in sight.

[10] Most importantly, the uncontroverted evidence is that
the decision to use pepper spray on the protesters during each
incident was not made because of the presence of "a large
group of protesters." The officer in charge during each inci-
dent testified that the decision to use pepper spray was made
solely because of the difficulty in using a Makita grinder to
remove the "black bears." With respect to the Scotia and
Riggs protests, all the officers who testified stated that the
presence of the protesters outside the buildings was not a fac-
tor in the decision to use the pepper spray on the protesters
inside the buildings.

[11] In fact, the defendants consistently testified that the
pepper spray was needed during each of the protests simply
because a handful of protesters had used lock-down devices,
which defendants argued constituted "active" resistance to
arrest. But this characterization of the protesters' conduct is
belied by the Eureka Police Department's own definition of
"active resistance," with which Sheriff Lewis agreed. Accord-
ing to that written definition, "active resistance" occurs when
the "subject is attempting to interfere with the officer's
actions by inflicting pain or physical injury to the officer
without the use of a weapon or object." No evidence in the
record suggests that the protesters here attempted to inflict
pain or serious injury on the arresting officers.

[12] Indeed, there is no evidence supporting the notion that
the police needed to use pepper spray in this case to "maintain
order and preserve the rights of its citizens" against a "large
group "of "lawless" and "menacing" protesters. Forrester, 25
F.3d at 807 (quoting Bray, 506 U.S. at 287 (Kennedy, J., con-
curring)). The force used to effect arrests can be deemed rea-
sonable only on the basis of the facts and circumstances
confronting the police when the arrests took place. Such force
cannot be justified on the basis of abstract notions of law and
order. Bray was not an excessive force case. Justice Kenne-
dy's cautionary words were uttered in the context of describ-
ing when deficiencies in the resources of state and local law
enforcement may necessitate the involvement of federal
authorities "to protect the lives and property of citizens or to
enforce the criminal law." Bray, 506 U.S. at 287-88 (quoting
42 U.S.C. S 10502(3)). His words should not be invoked to
justify the use of force to effect arrests in factual circum-
stances that do not justify the use of force.

       iii. Safety of Others

[13] Under our Fourth Amendment jurisprudence, "the
most important single element" in the Graham  analysis is
"whether the suspect pose[d] an immediate threat to the safety
of the officers or others." Chew, 27 F.3d at 1441. Here, the
protesters were nonviolent and unarmed. Most were young
women, two of whom were minors; none were physically
menacing. They posed no safety threat to themselves, the offi-
cers, or the public at large.

[14] Unlike the protesters in Forrester, the protesters here
did not block access to and from a medical clinic," `prevent-
ing patients, as well as physicians and medical staff, from
entering the clinic to render or receive medical or counseling
services.' " 25 F.3d at 805 n.1 (quoting Bray, 506 U.S. at
309). Nor did they behave threateningly toward the police. To
the contrary, the protesters repeatedly pleaded with the offi-
cers not to use the pepper spray because they posed no danger
to anyone. Finally, the protesters posed no danger to them-
selves. Cf. Monday v. Oullette, 118 F.3d 1099 (6th Cir. 1997)
(holding that the use of pepper spray to thwart a suicide
attempt of a mentally ill man who refused treatment was rea-
sonable). Because the protesters' conduct posed no danger to
themselves or others, a reasonable fact finder could conclude
that using pepper spray to effect their arrests bore "no reason-
able relation to the need" for force. Koch , 96 F.3d at 1304.

       iv. Split-Second Judgment

[15] Throughout the trial and in their papers on appeal,
defendants continually alluded to the ongoing battle the Hum-
boldt County Sheriff's Department and the Eureka Police
Department were having with environmental activists prior to
the protests in question. But the proper focus of the analysis
under Graham is on events immediately  confronting the offi-
cers when they decided to use pepper spray. The fact that the
defendants were increasingly frustrated by the protesters --
who had developed techniques such as lock-down devices to
prolong nonviolent civil protests -- is irrelevant under Gra-
ham.

[16] Under Graham and its progeny, "[t]he `reasonable-
ness' of a particular use of force must be judged from the per-
spective of a reasonable officer on the scene  . . . ." Graham,
490 U.S. at 396 (emphasis added). "The calculus of reason-
ableness must embody allowance for the fact that police offi-
cers are often forced to make split-second judgments -- in
circumstances that are tense, uncertain, and rapidly evolving
-- about the amount of force that is necessary in a particular
situation." Id. at 396-97. "[W]hen we evaluate whether the
police conduct was lawful or unlawful, we must do so in light
of the dangerousness of the particular situation that con-
fronted the police," Washington v. Lambert , 98 F.3d 1181,
1186 (9th Cir. 1996), "without regard to [the officers'] under-
lying intent or motivation," Graham, 490 U.S. at 397.

[17] Nothing in the record suggests that the decision to use
pepper spray during each of the three protests at issue in this
case was a "split-second judgment" made "in circumstances
that were `rapidly evolving.' " Chew , 27 F.3d at 1443 (quot-
ing Graham, 490 U.S. at 397)). To the contrary, the officers
testified that the only exigency here was the use of the "black
bear" lock-down devices. And they further testified that the
decision authorizing pepper spray's use on any protester using
such a lock-down device was made before the officers were
even called to the scenes of the protests. In light of this evi-
dence, a reasonable fact finder could conclude that the deci-
sions to use pepper spray during each of the protests were not
made in the heat of the moment.

       v. Severity of the Crime

[18] The evidence in this case suggests that the only crime
the protesters had committed when pepper-sprayed was tres-
pass. Cf. Lamb v. City of Decatur, 947 F. Supp. 1261 (C.D.
Ill. 1996) (holding that it was a jury question whether the use
of pepper spray on two thousand, nonviolent, unarmed labor
protesters who were exercising their First Amendment rights
and whose only crime was trespass and therefore "negligible"
was reasonable). Although the commission of a misdemeanor
offense is "not to be taken lightly," it militates against finding
the force used to effect an arrest reasonable where the suspect
was also nonviolent and "posed no threat to the safety of the
officers or others." Hammer v. Gross, 932 F.3d 842, 846 (9th
Cir. 1991) (holding that the fact that the crime committed was
a misdemeanor was a factor that the jury should consider in
determining whether the forced used by the arresting officer
against a DUI suspect to obtain a blood sample over the sus-
pect's verbal objection was reasonable); see also Chew, 27
F.3d at 1442 & n.9 (suggesting that a crime's "severity" in the
excessive force context turns on whether it involves violence
or an armed suspect).

[19] Indeed, the severity of the protesters' crime and their
nonviolent behavior stands in stark contrast to that of the fel-
ons on whom the use of pepper spray has been deemed rea-
sonable by other courts. For example, the protesters were not
belligerent felons resisting arrest for drunk driving as in Pas-
sino v. State, 669 N.Y.S.2d 793 (1998) (finding the use of
pepper spray to induce cooperation reasonable). Nor were
they narcotics suspects on the verge of swallowing contraband
as in United States v. Halloway, 906 F. Supp. 1437 (D. Kan.
1995) (finding severity of crime and threat of swallowing
contraband sufficient to justify use of pepper spray); Singleton
v. City of Newburgh, 1 F. Supp. 2d 306 (S.D.N.Y. 1998)
(same). As these cases illustrate, the use of pepper spray on
a suspect is not reasonable simply because the police have the
legitimate objective of making an arrest. It is only reasonable
if such force is needed to make an arrest in the circumstances.
Here, a rational juror could conclude that the protesters' non-
violent misdemeanor offense of trespass did not render pepper
spray necessary to effect their arrests.

       vi. Alternatives Available

Because the protesters posed no immediate threat to the
safety of anyone during the protests, the officers -- and the
district court in reviewing the reasonableness of their actions
-- were required to consider "[w]hat other tactics if any were
available" to effect their arrest. Chew, 27 F.3d at 1443. But,
in reviewing the availability of "other tactics, " the district
court erred. First, the court simply concluded that the "plain-
tiffs failed to present any evidence that the officers had a via-
ble alternative means for effecting arrest." To the extent that
the court regarded this finding to be determinative, it was mis-
taken. At most, whether alternatives existed is only a factor to
be considered in assessing the need for the force used by the
police. See Alexander, 29 F.3d at 1367.

Second, plaintiffs presented a great deal of evidence as to
alternatives that were available during the protests, including:
(a) negotiation; (b) using the Makita grinder or other tools to
remove the lock-down devices; (c) physically removing the
protesters; (d) and "waiting them out." The court, however,
dismissed these alternatives out of hand, resolving all con-
flicts in the evidence and drawing all inferences therefrom
against the plaintiffs. Defendants also presented evidence that
they were legitimately concerned about the potential for a
grinder's operation to cause a fire or accidental injuries to
protesters or to police-operators. Before the protests occurred,
defendants concluded that pepper spray was the "safer" tactic
for securing the protesters' release from the "black bears."
They made this decision despite the officers' extensive train-
ing in the use of a Makita grinder and the fact that no injuries
had yet occurred when the grinder had been used hundreds of
times to remove these lock-down devices.

[20] Given the conflicting evidence concerning available
alternatives to pepper spray, the district court should not have
directed a verdict in favor of defendants. Where the evidence
suggests that "other tactics" were available to the police to
effect an arrest, the reasonableness of the force used was for
the jury to decide. Cf. Chew, 27 F.3d at 1443. The standard
governing a court's decision whether to grant judgment as a
matter of law does not permit otherwise. See Anderson, 477
U.S. at 252.

IV.

In sum, the district court's conclusion that the officers did
not use excessive force to effect the arrests of the protesters
as a matter of law is untenable given the evidence presented
at trial. Whether the officers reasonably needed to apply pep-
per spray -- either with Q-tips to the protesters' eyelids or by
short full blasts into their faces -- to arrest the protesters was
in dispute. It is clear to us that a "fair-minded jury could
return a verdict for the plaintiff[s] on the evidence presented."
Id. The evidence reveals that the "nature and quality of the
intrusion" caused by the pepper spray on the protesters' bod-
ily integrity under the Fourth Amendment was more than
"minimal," as the district court had concluded. Indeed, the
pepper spray caused the protesters "immediate and searing
pain," Forrester, 25 F.3d at 808 n.5, which the officers could
not instantly stop inflicting once the protesters agreed to
release themselves from the "black bears." Under the Fourth
Amendment, using such a "pain compliance technique" to
effect the arrests of nonviolent protesters can only be deemed
reasonable force if the countervailing governmental interests
at stake were particularly strong. Our analysis of those inter-
ests here, however, reveals just the opposite. The protesters
posed no safety threat to anyone. Their crime was trespass.
The "black bear" lock-down devices they used meant that
they could not "evade arrest by flight." Graham, 490 U.S. at
396. They were not "menacing" demonstrators seeking to
intimidate the police or the public: most were young women;
two were minors. Although the "black bear" devices posed an
impediment to arrest, they did not render arrest impossible.
Alternatives were available. And the use of pepper spray did
not hasten the removal of the protesters from the premises,
but prolonged the incidents. In these circumstances, the need
for the force used during the protests falls far short of support-
ing a judgment as a matter of law in favor of the defendants.

The inherently fact-specific determination whether the
force used to effect an arrest was reasonable under the Fourth
Amendment should only be taken from the jury in rare cases.
See Chew, 27 F.3d at 1443; Barlow, 943 F.2d at 1135. This
is not such a case. Viewing all the evidence in the light most
favorable to the plaintiffs as the nonmoving parties, a rational
juror could easily conclude that there was sufficient evidence
for a verdict in favor of the plaintiffs. Indeed, the fact that the
district judge, after initially declaring a mistrial and ordering
a new trial, stated that "reasonable people can differ" on the
issue of excessive force in this case speaks directly to the wis-
dom of our decision now to reverse the court's grant of judg-
ment as a matter of law in favor of the defendants.

V.

A. Qualified Immunity

" `The doctrine of qualified immunity protects government
officials performing discretionary functions . . . from liability
for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.' " Katz v. United
States, 194 F.3d 962, 967 (9th Cir. 1999) (quoting Somers v.
Thurman, 109 F.3d 614, 616-17 (9th Cir. 1997) (internal quo-
tations omitted) (quoting Harlow v. Fitzgerald , 457 U.S. 800,
818 (1982)). "Qualified immunity protects `all but the plainly
incompetent or those who knowingly violate the law.' " Slo-
man v. Tadlock, 21 F.3d 1462, 1466-67 (9th Cir. 1994) (quot-
ing Malley v. Briggs, 475 U.S. 335, 341  (1986)). The
determination whether an official is entitled to qualified
immunity involves a two-step analysis: "1) Was the law gov-
erning the official's conduct clearly established? 2) Under that
law, could a reasonable officer have believed the conduct was
lawful?" Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th
Cir. 1993).

1. Clearly Established Law

"[W]hether the law was clearly established . . . is a pure
question of law for the court to decide." Mendoza v. Block, 27
F.3d 1357, 1360 (9th Cir. 1994). For a right to be "clearly
established," its "contours . . . must be sufficiently clear that
[at the time the allegedly unlawful action is taken] a reason-
able official would understand that what he is doing violates
that right." Id. at 1361 (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)) (alternation in original). Although
plaintiffs need not show that the very action challenged was
previously held unlawful, they must show that " `in the light
of pre-existing law the unlawfulness must be apparent.' " Id.
(quoting Anderson, 483 U.S. at 640).

Here, the district court correctly ruled that the law concern-
ing the use of excessive force is clearly established.

       It is clearly established that the use of excessive
       force by police officers in an arrest violates the
       arrestee's Fourth Amendment right to be free from
       an unreasonable seizure. The reasonableness of force
       is analyzed in light of such factors as the require-
       ments for the officer's safety, the motivation for the
       arrest, and the extent of the injury inflicted.

        This analysis applies to any arrest situation where
       force is used, whether it involves physical restraint,
       use of a baton, use of a gun, or use of a dog. . . . An
       officer is not entitled to qualified immunity on the
       grounds that the law is not clearly established every
       time a novel method is used to inflict injury.

Id. at 1362 (internal quotation marks and citations omitted).
Thus, even though police use of pepper spray on nonviolent
protesters engaged in civil disobedience is unprecedented,
Sheriff Lewis and Chief Deputy Sheriff Philp were aware of
the law governing its use. Indeed, Sheriff Lewis personally
issued Humboldt County Sheriff's Department's general
order, which explains the law under Graham and its progeny
concerning the relevant factors for assessing the limits on
police use of force under the Fourth Amendment.

2. Objective Reasonableness

In a civil rights action in which qualified immunity is
asserted, the reasonableness of an officer's conduct comes
into play both "as an element of the officer's defense" and "as
an element of the plaintiff's case." Katz, 194 F.3d at 967.

       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 hypotheti-
       cal 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 circum-
       stances. Because of this parity, [this court has]
       repeatedly held that the inquiry as to whether offi-
       cers 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.

Id. at 968 (resolving an apparent intracircuit conflict between
excessive force cases that equated the inquiry on the merits
with the qualified immunity analysis and other cases that sug-
gested the two lines of inquiry are distinct) (internal quotation
marks and citations omitted). Whether the trial judge or jury
should ultimately decide if an officer is entitled to qualified
immunity in a given case "has not been definitely resolved."
Sinaloa Lake Owners Ass'n v. City of Simi Valley, 70 F.3d
1095, 1100 (9th Cir. 1995) (citing Sloman, 21 F.3d at 1467-
69). But where essential historical facts concerning what an
official knew or did are in dispute, "it is clear that these are
questions of fact for the jury to determine." Id. at 1099; see
also Katz, 194 F.3d at 969 (holding that if disputed facts pre-
vent the court from deciding whether excessive force was
used as a matter of law, then the court cannot decide whether
officials are entitled to qualified immunity for the use of that
force as a matter of law either).

[21] Here, because historical facts are in dispute concerning
"the amount of force used" and "the circumstances that might
justify the amount of force used," id., the district court erred
in granting qualified immunity to Sheriff Lewis and Chief
Deputy Sheriff Philp as a matter of law. The disputed facts
concerning the amount of force used here include: (1) whether
the pepper spray was uniformly applied to closed or open
eyes; (2) whether the applications of OC with a Q-tip were
necessary; (3) whether full blasts of OC sprayed onto the pro-
testers' faces were necessary and executed at a safe distance;
(4) whether the application of water by spray bottle to the pro-
testers' eyelids and faces exacerbated the pain caused by the
pepper spray or actually provided relief from the OC; and (5)
the nature and extent of pain and emotional trauma caused by
the Q-tip applications and the full blast spray applications.

The disputed facts concerning the circumstances justifying
the use of force include: (1) the severity of the crime commit-
ted; (2) the danger, if any, posed by the protesters to the pub-
lic and to the police; (3) whether use of a lock-down device
constituted "active resistance" to arrest; (4) whether protesters
other than those in lock-down devices posed any threat to the
police or the public; (5) whether negotiation, "waiting them
out," physically carrying the protesters out, and using the
Makita grinder constituted viable and reasonable alternatives;
and (6) whether any other exigencies were present to justify
applying pepper spray with a Q-tip to the protesters' eyelids
and again by full spray blasts into their faces.

In addition, Sheriff Lewis's and Chief Deputy Sheriff
Philp's individual liability is not just based on the determina-
tion whether the use of pepper spray constituted excessive
force under the circumstances. Their individual liability to the
plaintiffs is also based on the extent to which they:

       "set in motion a series of acts by others, or know-
       ingly refused to terminate a series of acts by others,
       which [they] knew or reasonably should have
       known, would cause others to inflict the constitu-
       tional injury." A supervisor can be liable in his indi-
       vidual capacity "for his own culpable action or
       inaction in the training, supervision, or control of his
       subordinates; [or] for his acquiescence in the consti-
       tutional deprivation . . . ."

Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir.
1998) (quoting Larez, 946 F.2d at 645). Thus, if what they
knew and did when they authorized the use of pepper spray
on nonviolent protesters is in dispute, their entitlement to
qualified immunity cannot be decided as a matter of law by
the court. See Sinaloa, 70 F.3d at 1099-1100.

Here, much of what Lewis and Philp knew and did is in
dispute. For example, Philp testified that in authorizing pep-
per spray to be used on the protesters, he specifically "told
[the officers that he] did not want them to give a full face
blast, that [he] wanted them to avoid the direct application to
the nose and mouth area, keep it up in the area on more a lim-
ited basis and that they were not to apply it [in ] close proxim-
ity to the open eyeball." Yet, the officer in charge during each
of the protests testified that Philp and Lewis authorized full
spray blasts of OC, not just Q-tip applications. The officer
who applied the pepper spray to the protesters also testified
that Philp never instructed him on whether the pepper spray
could or should be reapplied, how often, at what intervals, or
under what circumstances.

In addition, Lewis and Philp testified that they consulted
with the district attorney about the legality and advisability of
pepper spray's use on nonviolent protesters. But the district
attorney expressly limited his opinion to the issue of criminal
liability for an unspecified use of pepper spray, advised that
he could not opine as to civil liability, and recommended that
defendants obtain a separate opinion about civil liability
before using the pepper spray.

Lewis also testified that prior to the incidents in this case,
he and the County risk manager "discussed the lock devices,
what we were encountering and [I] shared with her the con-
cept of the Q-tip application of pepper spray." But the risk
manager's testimony contradicts this. She testified that she
could not recall a conversation with Philp, Lewis, or any other
police official before the incidents at issue concerning the use
of OC by Q-tips on nonviolent protesters. She did recall a
conversation with Lewis, however, that occurred about a
week before the Scotia protest, which was very brief and took
place in the hallway outside her office. During that conversa-
tion, she spoke with Philp about a specific incident and the
possibility of using OC on protesters who locked-down by
using concrete, instead of using jackhammers to remove the
concrete.

Moreover, when Lewis and Philp authorized their officers
to use the pepper spray on the plaintiffs, although they fully
reviewed the law and consulted then-current literature on law
enforcement's tactical use of pepper spray, they both admitted
knowing that: (1) the California Department of Justice had
only approved the use of pepper spray on "hostile or violent"
subjects; (2) the California Highway Patrol's use of force pol-
icy specifically prohibits the use of pepper spray as it was
used here; and (3) pepper spray had never before been used
in this manner in Humboldt County, the State of California,
or anywhere in the nation. They also conceded that Humboldt
County's only written policy statement on the proper use of
pepper spray described it as a "defensive weapon, " only to be
used in "attempting to subdue an attacker or a violently resist-
ing suspect, or under other circumstances which under the law
permit the lawful and necessary use of force . . . by . . . chemi-
cal agent."

Defendants contend that the use of pepper spray here falls
under the category of "other circumstances which under the
law permit the lawful and necessary use of force . .. by . . .
chemical agent." The determination whether that is correct is
inextricably linked with the factual question whether the use
of pepper spray in this case constituted excessive force.
Therefore, under Rule 50, the district court should not have
granted defendants' motion for judgment as a matter of law
on qualified immunity grounds.

In sum, because historical facts were in dispute concerning
the reasonableness of the use of pepper spray in this case, as
well as what Lewis and Philps knew and did when they autho-
rized its use, the district court erred in deciding that these offi-
cials were entitled to qualified immunity as a matter of law.

VI.

Accordingly, we REVERSE the district court's decisions to
enter judgment as a matter of law for defendants Humboldt
County and its Sheriff's Department and the City of Eureka
and its police department and to dismiss Sheriff Lewis and
Chief Deputy Sheriff Philp on the basis of qualified immu-
nity. We REMAND this action for a new trial in accordance
with the views herein expressed.

_________________________________________________________________

BRIGHT, Circuit Judge, concurring separately:

I concur but add these comments.

Now that this court has established that the use of pepper
spray in the eyes and on the faces of nonviolent, passive
protestors may amount to an unreasonable use of force in vio-
lation of the Fourth Amendment of the United States Consti-
tution, the most important issue in the case has been resolved.

This is a close case. I would urge the parties to compromise
the respective positions of each and settle this case rather than
hazard a second trial that may well result in another tie. If
retried, this judge entertains great doubt that a second jury
will be any more successful than the hung jury in the first
case. The protestors suffered no permanent injury. Whether
the protestors, as a matter of fact, can recover damages
against defendants is highly uncertain.

_______________________________________________________________

FOOTNOTES

1 The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
2 To succeed in their S 1983 claims against Humboldt County, the City
of Eureka, and their respective police departments, plaintiffs have to estab-
lish that: (1) the police used excessive and therefore unconstitutional force
in arresting the protesters; and (2) a policy or practice of the municipali-
ties' police departments "cause[d]" or was " `the moving force' behind"
the unconstitutional arrests. Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir.
1994) (quoting Monell v. Department of Social Servs. of City of New York,
436 U.S. 658, 694  (1978)). The offending "policy " may be established by
"a first-time decision to adopt a particular course of action [when that
action] is directed by a governmentally authorized decisionmaker," such
as the chief of police. Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th
Cir. 1991) (citing Pembaur v. City of Cincinnati , 475 U.S. 469, 481
(1986)). To succeed in their individual claims against Sheriff Lewis and
Chief Deputy Sheriff Philp, plaintiffs must establish that these defendants
"set in motion" the acts committed by the arresting officers and that these
defendants "knew or reasonably should have known " that such acts would
cause constitutional injury, or that these defendants failed "in the training,
supervision, or control" of these officers in the proper use of pepper spray
to effect an arrest. Watkins v. City of Oakland , 145 F.3d 1087, 1093 (9th
Cir. 1998) (quoting Larez, 946 F.2d at 646).
3 An Allen charge -- named after the case of Allen v. United States, 164
U.S. 492 (1896) in which it was first approved -- is a supplemental jury
instruction that a trial judge may give when a jury announces that it is
unable to agree on a verdict. See United States v. Hernandez, 105 F.3d
1330, 1333-34 (9th Cir. 1997). Without being coercive, an Allen charge
urges jurors to keep trying to reach a verdict. See id. It is designed to assist
them in finding common ground by reminding them of their duties as
jurors, encouraging them to give due deference to the arguments of fellow
jurors and to reexamine their own views without abandoning their deeply
felt beliefs. See id.; see also Ninth Circuit Manual of Model Criminal Jury
Instructions, No.7.6 (1997).
4 Technically, the district court here granted defendants' renewed motion
for judgment as a matter of law pursuant to Rule 50(b). The fact that the
motion was granted after a mistrial was declared because of jury deadlock
does not alter the standard to be applied on appeal.
5 A jury's inability to reach a verdict does not necessarily preclude a
judgment as a matter of law. See, e.g., Demaine v. Bank One, 904 F.2d
219, 220 (4th Cir. 1990). But none of the cases cited by the defendants in
support of the directed verdict in this case involved charges of excessive
force. Each were contract dispute cases in which the central issue was
either the existence of a valid contract, see, e.g., id.; Noonan v. Midland
Capital Corp., 453 F.2d 459, 462 (2d Cir. 1972), or whether a contract fell
within an exception to the antitrust laws, see City and County of Honolulu
v. Hawaii Newspaper Agency, Inc., 559 F. Supp. 1021, 1026 (D. Haw.
1983). Although we have reviewed excessive force cases in which
directed verdicts in favor of defendants have been ordered after juries ren-
dered verdicts in favor of the plaintiffs, see, e.g., Forrett, 112 F.3d at 419-
21 (affirming district court's order); Acosta , 83 F.3d at 1145-47 (reversing
district court's order), we know of no excessive force case that presents
the unique procedural posture of this case, i.e., a directed verdict for the
defendants after the jury deadlocked and a mistrial was declared.

Indeed, Forrester v. City of San Diego, 25 F.3d 804 (9th Cir. 1994), on
which defendants primarily rely is procedurally wholly distinguishable
from this case. In Forrester, the jury reached a verdict on the excessive
force charge, the district court denied a motion for judgment notwithstand-
ing the verdict, and the issue on appeal was whether substantial evidence
supported the jury's verdict. See id. at 806.

Curiously, defendants here cite Forrester to support the contention that
the existence of videotape footage of each of the incidents in question
favors a determination of reasonableness as a matter of law. But this
court's reference to the fact that videotape evidence existed in Forrester
was made in the context of declaring that "the jury had more than a suffi-
cient amount of evidence presented to them from which they could formu-
late their verdicts . . . ." Id. at 807. Thus, this aspect of Forrester is
inapposite to defendants' contention here. Moreover, the videotape evi-
dence in Forrester aided the jury in reaching a verdict because it appar-
ently "removed much argument and interpretation of the facts
themselves." Id. The videotape evidence here appears to raise more ques-
tions than it answers, which in the context of a motion for judgment as a
matter of law must be resolved in favor of the plaintiffs as the nonmoving
parties.
6 We previously held that the use of pepper spray by a defendant during
the commission of a felony may constitute use of a dangerous weapon,
defined as "capable of inflicting death or serious bodily injury" for sen-
tencing purposes. United States v. Neill, 166 F.3d 943, 949 (9th Cir. 1999)
(citing U.S.S.G. S 1B1.1, cmt. n.1(d),(j)). Admittedly, police use of pepper
spray as a tactical tool to effect arrest is distinguishable from its use by
a felon during the commission of a robbery. Nevertheless, the evidence in
this case reveals that the police sprayed OC directly into some of the pro-
testers' faces from only inches away in much the same manner as the
defendant in Neill. And yet, Humboldt County's deputy in charge of
chemical agent training testified that spraying OC into a person's face
from less than 3 feet is not safe.
7 According to the defendants, the demonstrators in Forrester were truly
"passive" in that they went limp when police attempted to take them into
custody, whereas the protesters here were not "passive," but "actively
resisting" arrest because they used the lock-down devices. The fact that
the demonstrators in Forrester posed an actual safety threat to the public
does not seem to affect the defendants' assessment of the demonstrators
"passive" or "active" stance. In fact, the defendants contend that because
we upheld the jury's verdict in Forrester that declared the use of OPNs
on "passive" demonstrators to be reasonable under the circumstances, we
should therefore hold that the use of pepper spray on the "actively resist-
ing" protesters in this case is also reasonable. This contention reflects a
basic misunderstanding of the full factual breadth of the Graham balanc-
ing test. More importantly, this contention misses the point of the issue on
appeal. We are not asked to decide whether the use of pepper spray in this
case constituted excessive force or not. We are only to decide whether the
district court erred in directing a verdict for the defendants in light of the
evidence in the record.
8 An example of the district court's failure to view the evidence in the
light most favorable to the plaintiffs as the nonmoving parties and to
resolve all conflicts in the evidence in their favor is the court's statement
that "the videotape footage plainly demonstrates that the officers were not
making any attempt to open plaintiffs' eyes." The court came to this con-
clusion despite plaintiff Portugal's contrary testimony, the cry of one of
the young female protesters heard on the videotape asking the officers not
to open her eyes, and the unclear images revealed on the videotape.