Pollak, Vida & Barer

In Cheairs v. City of Seattle, published August 1, 2025, the 9th Circuit Court of Appeals affirmed summary judgment in favor of the defendants.  During a protest of the death of George Floyd, protesters breached police fencing surrounding a police station, ignored police orders to fall back, and advanced on the police line.  Protesters shined lasers into officers' eyes, broke fencing and used it as weapons, threw bottles, rocks, fireworks and chemical irritant at police, and held plywood shields with concealed nails. The incident commander authorized the use of less-lethal munitions to break up the crowd.  The police gave several announcements for the crowd to disperse, warned that less-lethal munitions would be used, and advised the crowd of paths of egress.  The crowd alternated moving back and continuing to confront the officers.  The plaintiff, who was having dinner nearby, walked to a position abreast of the protesters at the front of the crowd and began recording the events on his phone.  A defendant officer threw several blast ball grenades.  One that he threw overhand landed on the pavement near where the plaintiff stood on the sidewalk, bounced, and exploded, striking the plaintiff in the groin, seriously injuring him.  The plaintiff sued the city and the defendant officer, alleging violations of the plaintiff's 4th and 1st Amendment rights.  In granting summary judgment, the district court ruled that the defendant officer did not violate the plaintiff's 4th Amendment rights because the use of force did not constitute a seizure; that the evidence did not show force was used in retaliation for the plaintiff's exercise of 1st Amendment rights; and that because the plaintiff failed to establish a constitutional violation, he did not state a Monell claim against the city.

The 9th Circuit affirmed on different grounds.  It held that there was a genuine issue of fact on whether the use of force manifested an objective intent to restrain the plaintiff, and thus was a seizure.  But the court ruled that under the circumstances, the use of force was reasonable under the 4th Amendment.  Videos confirmed that the crowd posed serious threats to police, the public, and property, justifying some degree of force in response.  The protest had gone on for hours and the violence appeared to be escalating.  The police had given orders to disperse, instructions on safely leaving, and a warning of force to be used.  Some protesters obeyed, but others ignored the orders.  A reasonable officer in the defendant officer's shoes would have concluded that probable cause existed to arrest at least some of the protesters.  The government therefore had an important interest in using force to protect people and property.  The use of blast ball grenades accorded with department policy.  It was reasonable for the police to perceive that the protesters near where the plaintiff stood objectively posed an immediate threat to the safety of people and property.  Therefore, under the circumstances, the force employed was not unreasonable.  The plaintiff's 1st Amendment claim failed because he offered no evidence that the defendant officer was aware that the plaintiff was filming or intended to hit the plaintiff with a blast ball.  Because there was no violation of a constitutional right, the claim against the city failed.