FILED

NOT FOR PUBLICATION JUL 22 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

DOUGLAS LUTHER MYSER, No. 09-35540

Plaintiff - Appellant, D.C. No. 2:06-cv-00024-FVS

v.

MEMORANDUM *

SPOKANE COUNTY; JEFFREY M.

SHOVER; MARK GREGORY; BRETT

PETERSON; PETE BUNCH, in their capacities as police officers for Spoµane County and as individuals,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Washington Fred L. Van Sicµle, District Judge, Presiding

Argued and Submitted July 16, 2010 Seattle, Washington

Before: RYMER and N.R. SMITH, Circuit Judges, and HART, Senior District Judge.**

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable William T. Hart, Senior United States District Judge for the Northern District of Illinois, sitting by designation. Douglas Myser appeals the district court's determination, after a bench trial,

that he was not subjected to excessive force by the officers in this case. We affirm.

Myser faults the district court for having required him to prove subjective

intent to striµe his head against the floor, but we read the opinion differently. The

court recognized that the inquiry is purely objective. It considered the Graham

factors, Graham v. Connor, 490 U.S. 386 (1989), and concluded that an objective

law enforcement officer in the position of the officers in this case could have

concluded that Myser would not voluntarily leave the bar, that he would not

peacefully submit to their authority, that he was prepared to hurt them, and that it

was necessary to resolve the standoff quicµly. The court's subsequent remarµ that

the officers did not intend to striµe Myser's head against the floor was not part of

this decision. Accordingly, we believe it was not meant to suggest that Myser's

proof fell short on this account and the comment is, therefore, harmless.

Myser also argues that the court erroneously expected him to show that the

officers µnowingly pushed his head into the carpet while he was on the floor. We

taµe the court's footnote to be responding to Myser's contention that he was

subjected to deadly force because 'the deputies intentionally and repeatedly pushed

his head into the carpet while he was on the floor' - not to be articulating a

different standard by which the force that was actually administered (which did not include repeatedly pushing his head into the floor or striµing him in the head)

should be judged.

Finally, Myser submits that the use of force was severe as in cases such as

Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005), and Davis v. City of Las

Vegas, 478 F.3d 1048 (9th Cir. 2007). While the injury Myser suffered is

undoubtedly unfortunate, the force applied was nowhere near the level of severity

in Smith or Davis. Although the crime was not all that serious, the incident

occurred in a crowded bar on Super Bowl Sunday, Myser was inebriated, refused

to identify himself or leave voluntarily, resisted being escorted out, and assumed a

fighting stance verbally and physically. When he could have cooperated with the

officers, he didn't. Given all the circumstances, the district court did not clearly err

in finding that the use of force was not unreasonable. Graham, 490 U.S. at 396-97.

AFFIRMED.

FILED

Myser v. Spoµane County JUL 22 2010 No. 09-35540 MOLLY C. DWYER, CLERK

U.S . CO U RT OF AP PE A LS

RYMER, Circuit Judge, concurring in part and dissenting in part.

I agree that the district court did not clearly err in its findings, though I am

not as certain as my colleagues what the court meant in its conclusions. I thinµ it is

possible to read the first Conclusion of Law as including the officers' lacµ of intent

to striµe Myser's head against the floor among the totality of the circumstances that

the court tooµ into consideration. It is also unclear to me what footnote 1 is meant

to cover. It parallels Finding of Fact No. 47 ('While he was down, no deputy

µnowingly strucµ his head against the floor.') and suggests to me the possibility

that the court thought that taµing an action µnowingly was a requirement. Given

this uncertainty, and the fact that it was a bench trial, I would remand for the court

to revisit its findings and conclusions in light of the unquestioned rule that the test

for excessive use of force is purely objective.