Bowman

MEMORANDUM *

Janet Bowman (“Bowman”) appeals the district court’s grant of summary judgment against her in her 42 U.S.C. § 1983 action against Deputy Ronny Dozier and *220 the Deschutes County Sheriff Department for the alleged use of excessive force. Because the facts are familiar to the parties, we recount them only as necessary to explain our decision.

In analyzing qualified immunity, the Supreme Court has instructed lower courts to follow a two-step inquiry. Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). First, whether the officer’s conduct violated a constitutional right. See id. If no constitutional right is violated there is “no necessity for further inquiries concerning qualified immunity.” Id. If a right is violated, then the second inquiry is whether that right was clearly established at the time of the incident. See id. A constitutional right is clearly established when “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id.

To succeed on a excessive force claim under the Fourth Amendment, a claimant must show that the officer’s actions were objectively unreasonable under the…

concurring.

I do not agree with the majority’s conclusion that there was no excessive force used. In Janet Bowman’s version of events, which must be credited for present purposes, she informed Deputy Dozier that she “broke easy”; that she had suffered a stroke; and that she moves slowly. When Deputy Dozier insisted that it was time to effectuate an arrest, Bowman said she was ready to go. The crime in question, hitting her husband with a mop during a *221 domestic dispute, was certainly not a serious one.

Under these circumstances — where a clearly impaired, elderly person was being arrested for a minor crime and was not resisting arrest, and the arresting officer had specific reason to know that she was prone to physical injury from even minor force — I would hold that the use of even such minor force to effectuate an arrest was excessive. The officer could have waited a bit longer; alternatively, he could have arranged to have Bowman carried to the police car rather than pulling on her with sufficient force to tear her rotator cuff.

I nonetheless concur in the result, as I agree that there is no clearly established law to this effect. See Saucier v. Katz, 533 U.S. 194 , 202,…