Puente v. City of Phoenix

                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

PUENTE, an Arizona nonprofit          No. 22-15344
corporation; PODER IN ACTION, an
Arizona nonprofit corporation; IRA
YEDLIN; JANET TRAVIS;                D.C. No. 2:18-cv-
CYNTHIA GUILLEN; JACINTA                02778-JJT
GONZALEZ GOODMAN,
individually and as class
representatives,                        OPINION
             Plaintiffs-Appellees,
 v.
CITY OF PHOENIX, a municipal
corporation; MICHAEL SULLIVAN,
in his official capacity; JERI L.
WILLIAMS; GLENN NEVILLE;
JOHN STICCA; LANE WHITE;
UNKNOWN PARTIES, Does 1-20,
             Defendants,
and
BENJAMIN MOORE, individually
and in their official capacities;
DOUGLAS MCBRIDE; ROBERT
SCOTT; CHRISTOPHER TURIANO;
JEFFREY HOWELL; GEORGE
HERR,
2               PUENTE V. CITY OF PHOENIX


             Defendants-Appellants.


PUENTE, an Arizona nonprofit                No. 22-15661
corporation; IRA YEDLIN; JANET
TRAVIS; CYNTHIA GUILLEN;                D.C. No. 2:18-cv-
JACINTA GONZALEZ GOODMAN,                  02778-JJT
individually and as class
representatives; PODER IN ACTION,
an Arizona nonprofit corporation,
             Plaintiffs-Appellants,

    v.
CITY OF PHOENIX, a municipal
corporation; MICHAEL SULLIVAN,
in his official capacity; BENJAMIN
MOORE, individually and in his
official capacity; JERI L. WILLIAMS;
DOUGLAS MCBRIDE; ROBERT
SCOTT; CHRISTOPHER TURIANO;
JEFFREY HOWELL; GEORGE
HERR,
             Defendants-Appellees,
and
GLENN NEVILLE; JOHN STICCA;
LANE WHITE; UNKNOWN
PARTIES, Does 1-20,
             Defendants.
                    PUENTE V. CITY OF PHOENIX                      3


        Appeal from the United States District Court
                 for the District of Arizona
        John Joseph Tuchi, District Judge, Presiding

             Argued and Submitted May 16, 2023
                      Phoenix, Arizona

                   Filed December 19, 2024

    Before: Jacqueline H. Nguyen, Daniel P. Collins, and
              Kenneth K. Lee, Circuit Judges.

                   Opinion by Judge Collins


                          SUMMARY *


                 Civil Rights/Excessive Force

    The panel reversed the district court's partial denial of
summary judgment to Phoenix Police Department (“PPD”)
defendants and affirmed the district court’s partial grant of
summary judgment to PPD defendants in an action under 

 brought by two organizations and four
individuals asserting a variety of claims arising from actions
that defendants took against political demonstrators
protesting outside a rally held by then-President Trump at
the Phoenix Convention Center on August 22, 2017.
   Plaintiffs alleged that defendants violated their
constitutional rights under the First, Fourth, and Fourteenth
*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4                 PUENTE V. CITY OF PHOENIX


Amendments by dispersing protesters through the use of tear
gas, other chemical irritants, and flash-bang grenades. After
certifying two distinct classes, the district court ultimately
granted summary judgment to defendants on all claims
except for the individual Fourth Amendment excessive-
force claims asserted by three of the individual plaintiffs
against certain PPD officers.
    The panel affirmed the district court’s summary
judgment for defendants on the class claims for excessive
force under the Fourth and Fourteenth Amendments. There
was no “seizure” of the class members within the meaning
of the Fourth Amendment because the record showed that
defendants’ use of airborne and auditory irritants was not
objectively aimed at restraining the class members, even
temporarily. Because the class’s excessive-force claims
arose outside the context of a seizure, the panel evaluated
those claims under the Fourteenth Amendment shocks-the-
conscience test rather than the Fourth Amendment’s
objective reasonableness standard. Given the quickly
escalating situation, there was no triable issue that the
officers had an improper purpose to harm rather than
legitimate law enforcement objectives at the time they
decided to employ chemical irritants and flash-bang
grenades to disperse the crowd.
    The panel reversed the district court’s denial of summary
judgment to the individual defendants on the excessive-force
damages claims asserted by individual plaintiffs Yedlin,
Travis and Guillen, who were physically impacted by
projectiles. The panel held that the officers were entitled to
qualified immunity because they acted reasonably under the
circumstances or did not violate clearly established law.
                   PUENTE V. CITY OF PHOENIX                   5


    The panel next affirmed the district court’s summary
judgment for the individual defendants with respect to the
First Amendment claims asserted by all plaintiffs, on their
own behalf, and on behalf of the classes. The individual
defendants were entitled to qualified immunity because,
based on the undisputed facts, including the use of
unidentified gas and pyrotechnic devices by agitators, there
were sufficient objectively reasonable grounds to establish
the requisite clear and present danger of an immediate threat
to public safety, peace, or order. Moreover, there was no
triable issue that the dispersal of the crowd was undertaken
with retaliatory intent.
     The panel affirmed the district court’s summary
judgment to Police Chief Williams. Because the panel
concluded that all of Plaintiffs’ claims either fail or did not
involve the violation of a clearly established right, Plaintiffs’
claims of supervisorial liability necessarily fail. Finally, the
panel affirmed the district court’s summary judgment to the
City of Phoenix on the municipal liability claim. Plaintiffs
failed to raise a triable issue that Chief Williams caused or
ratified the use of excessive force against Guillen or that the
City was deliberately indifferent to Guillen’s constitutional
rights.
6                PUENTE V. CITY OF PHOENIX


                       COUNSEL

Gerard J. Cedrone (argued), Goodwin Procter LLP, Boston,
Massachusetts; Alexis S. Coll, Indra N. Chatterjee, and Yoo
N. Lee, Goodwin Procter LLP, Redwood City, California;
Andrew Kim, Goodwin Procter LLP, Washington, D.C.;
James Nikraftar, Goodwin Procter LLP, Santa Monica,
California; Kathleen E. Brody, Mitchell Stein Carey
Chapman PC, Phoenix, Arizona; Darrell Hill and Jared G.
Keenan, American Civil Liberties Union of Arizona,
Phoenix, Arizona; Paul L. Hoffman, Schonbrun Seplow
Harris Hoffman & Zeldes LLP, Hermosa Beach, California;
John C. Washington, Schonbrun Seplow Harris Hoffman &
Zeldes LLP, Los Angeles, California; Barrett S. Litt,
McLane Bednarski & Litt LLP; Pasadena, California; Dan
Stormer, Hadsell Stormer & Renick LLP, Pasadena,
California; Hong-An Vu, Foundation Law Group LLP, Los
Angeles, California; Cindy Pánuco, Nisha Kashyap, and
Joanna E. Adler, Public Counsel, Los Angeles, California;
for Plaintiffs-Appellees.
Mary R. O'Grady (argued), David B. Rosenbaum, and
Joshua J. Messer, Phoenix, Arizona; Steven J. Renick
(argued), Mildred K. O'Linn, and Scott Wm. Davenport,
Manning & Kass Ellrod Ramirez Trester LLP, Los Angeles,
California; for Defendants-Appellants.
                  PUENTE V. CITY OF PHOENIX                  7


                         OPINION

COLLINS, Circuit Judge:

     In this action under 

, two organizations
and four individuals assert a variety of claims arising from
the actions that the Phoenix Police Department (“PPD”) took
against political demonstrators protesting outside a rally held
by then-President Trump at the Phoenix Convention Center
on August 22, 2017. In particular, Plaintiffs allege that the
PPD violated their constitutional rights under the First,
Fourth, and Fourteenth Amendments by dispersing the
protesters through the use of tear gas, other chemical
irritants, and “flash-bang grenades” that “produce loud
explosive noises and bright flashes of light.” After certifying
two distinct classes—one for certain damages claims and
another for injunctive relief—the district court ultimately
granted summary judgment to Defendants on all claims
except for the individual Fourth Amendment excessive-
force claims asserted by three of the individual Plaintiffs
against certain officers. Those officers have appealed that
partial denial of summary judgment, arguing that they are
entitled to qualified immunity. After the district court
certified its partial judgment against Plaintiffs for immediate
appeal under Federal Rule of Civil Procedure 54(b),
Plaintiffs appealed that judgment as well. We reverse the
district court’s partial denial of summary judgment to
Defendants, and we affirm the court’s partial grant of
summary judgment to Defendants on all remaining claims.
8                    PUENTE V. CITY OF PHOENIX


                                   I
                                   A
    Because this appeal challenges a partial grant and partial
denial of summary judgment to Defendants, we recite the
underlying facts by construing the record evidence in the
light most favorable to Plaintiffs. See O’Doan v. Sanford,

, 1035 (9th Cir. 2021).
    On August 22, 2017, then-President Trump held a
scheduled rally at the Phoenix Convention Center. After the
announcement of the rally, various organizations announced
their intention to protest outside the event. These included
Plaintiffs Poder in Action (“Poder”) and Puente, which are
Phoenix-based membership organizations that engage in
advocacy concerning immigrants’ rights and other issues. In
anticipation of the rally and accompanying counter-protests,
the PPD coordinated with federal, state, and local agencies
to develop a security plan.
    As part of that security plan, the PPD decided to
designate two separate areas for security and protest-
assembly purposes. The first of these was the so-called
“Free Speech Zone,” on the block immediately north of the
convention center, where “anti-Trump protesters were
expected to gather.” 1 The second of these was the so-called
“Public Safety Zone,” which ran between the Free Speech
Zone and the convention center itself. In order to facilitate
emergency vehicle and police access, the Public Safety Zone
(which included the street between the Free Speech Zone
and the convention center) was closed to the public and was
fenced off from the Free Speech Zone. The following image

1
 On appeal, Plaintiffs do not raise any contention that the establishment
of the Free Speech Zone was itself unconstitutional.
                  PUENTE V. CITY OF PHOENIX                  9


from the record shows the position of the Free Speech Zone
(marked as the “Protest Area”):




The Free Speech Zone began on the north side of Monroe
Street and ran between 2nd and 3rd Street. The Public Safety
Zone included the entirety of Monroe Street itself and ran
eastward from 2nd Street all the way to 5th Street (which is
not included in the above image).
    Acting through its Community Relations Bureau
(“CRB”), the PPD also communicated with local groups
who had notified the PPD that they were planning
demonstrations. These efforts included a meeting, the day
before the rally, between a Detective in the CRB and “the
protest organizer” for Puente. Various protest organizers
met with members of the CRB to discuss their plans, arrange
for delivery of supplies, and coordinate a police escort to the
Free Speech Zone on the day of President Trump’s rally.
10                PUENTE V. CITY OF PHOENIX


   The PPD anticipated the possibility of isolated unlawful
conduct occurring in the vicinity of the rally. Among the
“potential threats” or weapons that the PPD thought might
possibly be used were “improvised incendiary devices, guns,
knives, rocks, and human excrement.” Based on its
experience with prior protests, the PPD also had specific
concerns about the decentralized movement known as
“Antifa,” whose members the PPD believed might attend the
event. The PPD was aware that Antifa members had
engaged in violence or vandalism at previous public political
events.
    Nonetheless, the PPD’s planning for this specific event
did not include any particularized rules of engagement
concerning the use of force beyond those applicable to such
deployments generally.         Similarly, while the PPD
anticipated that it might need to declare an unlawful
assembly, it did not create a specific plan for doing so and
instead distributed general guidance regarding the unlawful
assembly statute to its officers. The PPD’s general training
emphasized the tactic of isolating and addressing groups of
individuals acting unlawfully within a larger protest.
    The PPD also planned to have available at the event a
contingent of persons from its “Tactical Response Unit”
(“TRU”). This group, also known as the “Field Force,” is a
specialized PPD unit that responds to civil disturbances. Its
members are trained on, and governed by, specific PPD
policies covering potential uses of force. This training
includes guidance for protecting First Amendment assembly
and free speech rights. Defendant Lieutenant Benjamin
Moore headed the TRU deployment at this particular event.
   Within TRU is an even more specialized group called the
Grenadiers. Grenadiers train in the use of chemical agents
                  PUENTE V. CITY OF PHOENIX                11


and munitions such as “pepper balls”—concentrated
powdered chemical projectiles that induce a physical
reaction similar to that caused by pepper spray. That training
includes instruction on when and how to appropriately
deploy chemical agents. Although Grenadiers are present at
dozens of protests each year, the most recent prior incident
where they actually used chemical agents was in July 2016.
All named Defendants in this case who are individuals
(except for Police Chief Jeri Williams) were experienced
Grenadiers who had overseen multiple protests prior to
August 22, 2017. Moore in particular had overseen
hundreds of protests.
                              B
    Pursuant to its security plan and to prevent protesters in
the Free Speech Zone from occupying the Public Safety
Zone on Monroe Street, the PPD erected a three-foot high
pedestrian fence “threaded with yellow police tape that said
‘Police Line Do Not Cross.’” To handle the crowds,
approximately 985 public safety employees—including
TRU officers and Grenadiers—were deployed in the area.
The PPD also stationed undercover officers in the Free
Speech Zone to observe the demonstrators’ activities and to
monitor the crowd for possible threats throughout the
afternoon and evening.
    Protesters began arriving outside the convention center
on the morning of August 22. As noted earlier, some protest
groups had notified the CRB in advance of their intention to
protest, and the CRB assisted them with logistical details,
including escorting some groups as they made their way to
the convention center area. Members of Plaintiffs Puente
and Poder arrived at the Free Speech Zone shortly after 4:00
PM and demonstrated there for several hours.
12                PUENTE V. CITY OF PHOENIX


Approximately 6,000 people gathered outside the
convention center at the height of the protest, which
proceeded without major incidents during the day. President
Trump arrived at the convention center around 6:30 PM, and
the demonstrators continued to remain largely peaceful.
     The first violent incidents occurred shortly after 7:00
PM, when unknown persons in the Free Speech Zone began
throwing water bottles across Monroe Street at the police
and at those waiting in line to enter the convention center.
The PPD responded by moving additional TRU officers to
Monroe Street and by broadcasting a loud message using a
long-range acoustic device (“LRAD”) reminding protesters
to stop throwing objects and to remain peaceful. Around that
time, Moore received reports regarding the presence of
potential Antifa members in the crowd, and he ordered his
officers to watch them and attempt to communicate with
them. About an hour later, around 8:00 PM, Moore received
specific reports that certain of these potential Antifa
members were carrying signs, including signs on tall poles.
Antifa members were known to have used “tall signs” in the
past to topple fences and barriers, and Moore suspected that
a similar attempt might be made to breach the fence
separating the Public Safety Zone from the Free Speech
Zone.
    At 8:05 PM, Moore was informed that approximately 10
to 20 individuals thought to be members of Antifa were
beginning “to start some trouble” in the Free Speech Zone.
Given the group’s distinctive clothing, banners, and
behavior, Moore was able to identify several suspected
Antifa members within the crowd in the Free Speech Zone,
and at approximately 8:07 PM, he directed the head of the
Grenadiers, Sergeant Douglas McBride, to “get eyes on it.”
According to McBride, the Antifa members were acting
                  PUENTE V. CITY OF PHOENIX                13


aggressively and shouting profanities. Around the same
time, officers observed suspected Antifa members shove a
protester who had told them to stop throwing objects. CRB
officers approached these members and attempted to talk
with them in an effort to de-escalate the situation, but the
officers reported to Moore that the members would not
communicate with them. McBride made all Grenadiers
aware of the suspected Antifa members in the crowd, but the
PPD did not attempt to remove or arrest these people at this
time.
    At 8:11 PM, Moore was informed that President
Trump’s motorcade would soon depart from the convention
center. At 8:15 PM, Moore was informed that people were
throwing water bottles down from a parking garage located
at the edge of the Free Speech Zone, requiring the
deployment of TRU officers to secure the building. The
PPD used the LRAD to make continuous announcements to
warn people not to throw objects.
    Around 8:20 PM, Moore noticed that the suspected
Antifa members had erected large signs near the fence
separating the Free Speech Zone from the Public Safety
Zone on Monroe Street. The PPD officers approached and
saw these members hooking their flags and banners to the
fencing; Moore believed that this could be a tactic to breach
the fence. At about 8:30 PM, Moore noticed these members
gathering behind the signs, and other officers reported seeing
them opening bags and handing out unidentified items. The
PPD officers did not attempt to separate these individuals
from the crowd of protesters. Moore directed McBride to
prepare the Grenadiers in the Public Safety Zone to deploy
pepper balls if the suspected Antifa members tried to breach
the fence.
14                PUENTE V. CITY OF PHOENIX


    Around 8:32 PM, the suspected Antifa members began
pushing the fence. Moore ordered officers to fire pepper
balls at the ground in front of the suspected Antifa group.
These pepper balls released “PAVA powder,” which
temporarily irritates the eyes of persons nearby. As a result,
some members of the group dispersed into the crowd of
protesters. The PPD did not provide warnings or attempt to
make arrests before firing the pepper balls. In a declaration,
Moore explained he made the decision not to attempt
individualized arrests based on his belief that the suspected
Antifa group’s members “had not committed a crime or
given cause for arrest” and that—even if they had—sending
officers into the crowd to conduct arrests would risk hand-
to-hand violence, strain police manpower, and require
opening the police fence. Some Antifa members remained,
however, and another person who was not a suspected Antifa
member but who was standing near the fence began shaking
it with some force. That person was Plaintiff Ira Yedlin.
According to Moore, “Grenadiers then deployed more
pepper balls in that area.” Yedlin was physically hit by some
of these pepper balls.
    With the suspected Antifa members then cleared away
from the police fence and dispersed among the crowd,
Moore directed the Grenadiers to “hold off” from firing any
more pepper balls to see whether the unlawful activity would
stop. But the activity instead escalated, with individuals in
the Free Speech Zone throwing rocks, water bottles, and
other objects at an increasing rate. This escalation in
violence coincided with President Trump’s motorcade
leaving the convention center at around 8:33 PM. At 8:34
PM, an individual in the Free Speech Zone threw a canister
into the Public Safety Zone that began emitting an unknown
gas. Moore ordered the officers present to don gas masks
                   PUENTE V. CITY OF PHOENIX                 15


and to “deploy smoke canisters.” The smoke itself is “inert”
and does not produce the same physical effects as tear gas.
Although the smoke was deployed in an effort to “defuse the
situation, create distance, and . . . avoid escalating tactics,”
it did not succeed. Although some in the crowd left when
the PPD deployed the smoke, many in the crowd continued
to throw objects back at police; indeed, “the frequency of
items being thrown at officers significantly increased.” The
objects being thrown included a “pyrotechnical munition” of
some kind, which burned for a few minutes before being
extinguished by police.
    Moore concluded that, once these unknown devices were
thrown at officers, the assembly had become unlawful, but
he did not make any announcement to that effect. He instead
ordered the Grenadiers to deploy tear gas and authorized the
further use of pepper balls as well as other riot-control
devices. From approximately 8:35 PM to 8:45 PM, PPD
officers began dispersing the crowd in the section of the Free
Speech Zone immediately across from the Phoenix
Convention Center by using tear gas and flash-bang
grenades. At 8:39 PM, Moore ordered the Grenadiers to cut
a gap in the police fence, enter the Free Speech Zone, and
begin clearing the remaining individuals in the area using
“targeted munitions like pepper balls when necessary to
drive back any threatening or aggressive individuals.” He
also organized a “skirmish line” of officers to walk slowly
down Monroe Street from 3rd Street to 2nd Street, where
there seemed to be a larger number of “unlawful actors.” As
that line of officers proceeded down Monroe Street, some
members of the TRU “deployed pepper spray from handheld
canisters at or near specific individuals they perceived as
threatening or aggressive.”
16                PUENTE V. CITY OF PHOENIX


    At some point between 8:42 PM and 8:47 PM, Moore
decided to make a declaration that the assembly was
unlawful. This declaration was first announced at 8:52 PM
by a PPD helicopter using a public address system above the
Free Speech Zone—though the noise and chaos of the
concurrent police action substantially diminished protesters’
ability to understand and respond to the orders. At 9:02 PM,
a police vehicle at the intersection of Second and Monroe
Streets—one corner of the Free Speech Zone—began
repeatedly communicating unlawful-assembly declarations
as well. To clear those protesters remaining in the Free
Speech Zone, at 9:04 or 9:05 PM, TRU officers formed
another skirmish line and slowly marched north along
Second Street. Officers in the line used further non-lethal
munitions—including pepper balls and spray—against
particular individuals continuing to throw objects or
otherwise act aggressively. Plaintiff Janet Travis, who was
recording the events from a position directly in front of the
skirmish line, was hit by a projectile.
   By approximately 9:10 PM, the PPD had cleared the last
remaining individuals away from the Free Speech Zone. The
PPD arrested a total of five people over the course of the day,
none of whom are Plaintiffs in this case.
    At a post-event press conference, Police Chief Williams
stated that, in her view, officers handled the crowd
“successfully and professionally” and that “all in all” the
event was “a successful celebration.” She later stated that
the department’s conduct was “textbook perfect.” In a
subsequent memorandum to the City Manager, Ed Zuercher,
Williams wrote that she “believe[d] the actions of [her]
officers reflected the direction [she] gave them.” Zuercher
responded, writing that what the PPD “accomplished on
August 22 was notable” and hailed the officers’
                     PUENTE V. CITY OF PHOENIX                        17


“professionalism in ensuring the safety and First
Amendment rights of the community.” Zuercher informed
Williams that the City planned to conduct an independent
investigation of the PPD’s conduct at the event, but he added
that his request did not “diminish the professionalism of our
Phoenix Police officers.”
    Sometime after the protest, a “challenge coin”
commemorating the events of August 22, 2017 was created.
On one side, the coin depicted a protestor being hit in the
groin by a munition. That side also bore the inscription
“Good night left nut.” On the other side was the date of the
protest surrounded by the inscription “Making America
great again one nut at a time.” At least four PPD officers
possessed the coin, and at least one officer sold and
distributed it.
                                   C
    On September 4, 2018, Plaintiffs filed this action in the
district court, alleging that the PPD’s actions in dispersing
the crowd of protesters constituted excessive force under the
Fourth and Fourteenth Amendments, deprived the protesters
of their First Amendment speech rights, and discriminated
against the protesters in contravention of the Fourteenth
Amendment’s Equal Protection Clause.
    In September 2019, the district court certified two
classes. 2 First, the court held that, under Federal Rule of
Civil Procedure 23(b)(3), individual Plaintiffs Gonzalez
Goodman, Guillen, and Travis could represent the following
class seeking damages with respect to certain claims alleging
excessive force under the Fourth and Fourteenth
2
  Neither side challenges the class certification order on appeal, and we
therefore do not address any issue concerning whether the district court
properly certified a class action in this case.
18                    PUENTE V. CITY OF PHOENIX


Amendments, deprivation of First Amendment rights, and
discrimination in contravention of the Fourteenth
Amendment’s Equal Protection Clause: 3

         “[T]hose persons who were present on
         August 22, 2017” in the Free Speech Zone
         “and forced by PPD onto adjacent streets at
         any point between 8:25 and 10:00 P.M., who
         neither threw objects nor attempted to breach
         the ‘free speech zone’ barrier along Monroe
         Street, and who were subjected to the PPD’s
         dispersal by the use of force, or other
         unlawful police activity arising from the
         police response to anti-Trump protestors,”
         and “who were unlawfully dispersed by the
         use of gas, pepper spray, pepper bullets, or
         other chemical agents” (emphasis added).

The district court also held, under Rule 23(b)(2), that the
same three individuals, as well as Puente and Poder, could




3
  The district court’s certification order should itself have clearly stated
the exact definition of the damages class that it was certifying and the
relevant claims. See FED. R. CIV. P. 23(c)(1)(B) (stating that “[a]n order
that certifies a class action must define the class and the class claims,
issues, or defenses”). Here, we are able to discern the damages class’s
definition only by reading the court’s order together with other
documents in the record. Moreover, the order, standing alone, clearly
suggests that the equal protection claim was being certified for class
treatment together with the First Amendment claim, but the court later
confusingly suggested in its summary judgment order that it had not
certified a class as to the equal protection claim.
                  PUENTE V. CITY OF PHOENIX                19


represent the following certified class seeking injunctive
relief:

       “[A]ll persons who have in the past,
       including those present at the anti-Trump
       protest on August 22, 2017, between 8:25 and
       10:00 P.M., or may in the future, participate
       in, or be present at, demonstrations within the
       City of Phoenix in the exercise of their rights
       of free speech and assembly without
       engaging in any conduct justifying the use of
       force.”

The court, however, rejected Plaintiffs’ request to certify an
additional damages class with respect to persons who had
been “struck with projectiles of any type,” concluding that
the claims of such persons raised individualized issues that
precluded classwide treatment.
   At the close of discovery, the parties cross-moved for
summary judgment. In February 2022, the district court
denied Plaintiffs’ motion in its entirety and granted
Defendants’ motion in part.
    First, the district court granted summary judgment to
Defendants on all claims brought by the two certified
classes.
    Regarding the classes’ excessive-force claims, the
district court began by addressing whether those claims were
properly evaluated under the Fourth Amendment’s
“objectively reasonable” standard, see Graham v. Connor,

 (1989), or the Fourteenth Amendment’s
“shocks the conscience” standard, see County of Sacramento
v Lewis, 

, 846–47 (1998); Wilkinson v. Torres,
20                PUENTE V. CITY OF PHOENIX

 (9th Cir. 2010). That issue turned on
whether the use of force in connection with the deployment
of chemical agents involved a “seizure” within the meaning
of the Fourth Amendment, and the district court held that it
did not. Applying the relevant Fourteenth Amendment
substantive due process standards, the district court held that
there was no evidence in the record from which a reasonable
jury could conclude that Defendants acted with the requisite
“purpose to harm unrelated to legitimate law enforcement
objectives.”
    The district court also granted summary judgment to
Defendants on the classes’ First Amendment claim. Noting
that the parties disagreed as to the applicable First
Amendment standards, the court held that Plaintiffs’ claim
failed either way.        Applying Defendants’ preferred
standards, the district court held that Plaintiffs “failed to
demonstrate a genuine issue of material fact as to whether
chilling class members’ First Amendment rights was a
substantial or motivating factor that caused the officers to
take the actions they did.” Applying Plaintiffs’ preferred
standards in the alternative, the district court also held that
“no reasonable jury could conclude from the evidence that
the officers did not have adequate justification for their
actions.” The court further concluded that the equal
protection claim “fails with Plaintiffs’ First Amendment
claim.”
    Having resolved all of the class claims, the district court
addressed the named Plaintiffs’ remaining claims. The court
held that Puente’s and Poder’s claims all failed as a matter
of law. To the extent that these organizations asserted claims
on their own behalf or any non-class claims for injunctive
relief, the court held that the evidence proffered by Puente
and Poder did “not go materially further than that pertaining
                  PUENTE V. CITY OF PHOENIX                 21


to the class members,” and any such claims failed for the
same reasons. And to the extent that Puente and Poder also
purported to invoke “associational standing” to assert any
remaining non-injunctive claims on behalf of their members,
such claims would require the participation of such
individual members, and therefore did not qualify for
associational standing under Hunt v. Washington State Apple
Advertising Commission, 

 (1977).
    The district court granted Defendants’ motion for
summary judgment on the individual claims brought by
Gonzalez Goodman because, as with Puente and Poder’s
claims, the court concluded that “the evidence related to
[her] claims d[id] not go materially further than that
pertaining to the class members.”
    However, the district court denied summary judgment to
the relevant individual officers with respect to the individual
Fourth Amendment excessive-force claims asserted by
Yedlin, Travis, and Guillen. The district court held that,
because they had actually been struck by projectiles, Yedlin,
Travis, and Guillen were “seized” within the meaning of the
Fourth Amendment and that a genuine dispute of material
fact existed as to whether the force used against them was
reasonable. The court further held that the constitutional
right “not to be subjected to unreasonable force during a
seizure—by way of the deployment [of] pepper balls,
muzzle blasts, and pepper spray—where less severe or
intrusive means of applying force were available and
sufficient in the circumstances” was clearly established at
22                   PUENTE V. CITY OF PHOENIX


the time, and the district court therefore denied qualified
immunity to the relevant officers as to these claims. 4
    The district court nonetheless granted summary
judgment to Defendants on Yedlin’s, Travis’s, and Guillen’s
First Amendment and equal protection claims, holding that
there was insufficient evidence in the record to show that
“chilling Plaintiffs’ First Amendment rights was a
substantial motivating factor for the officers’ actions, let
alone . . . a but-for cause.”
    The district court also granted summary judgment
against Plaintiffs on all claims against Williams and the City
of Phoenix. In contrast to Moore and McBride, the district
court concluded that there was insufficient evidence in the
record to demonstrate that Williams “reasonably should
have known that the actions she set in motion . . . would
cause officers to inflict constitutional injuries,” and that she
could therefore not be found liable as a supervisor under
Felarca v. Birgeneau, 

, 819–20 (9th Cir. 2018).
The court also held that the record did not support a finding
that any of the constitutional violations Plaintiffs alleged
were caused by an official policy or custom of the City of
Phoenix and that consequently there was no basis for
municipal liability under Monell v. Department of Social
Services of the City of New York, 

 (1978).

4
  The officers involved in the particular incidents involving these three
individual Plaintiffs differed. Specifically, the court allowed Yedlin’s
excessive-force claim to go forward against Defendants Robert Scott,
Jeffrey Howell, and George Herr; Travis’s excessive-force claim to go
forward against Defendants Christopher Turiano and Howell; and
Guillen’s excessive-force claim to go forward against Defendants Scott,
Howell, Herr, and Turiano. The district court further held that McBride
and Moore could be held liable on these three claims under a theory of
supervisorial liability.
                      PUENTE V. CITY OF PHOENIX                         23


    Finally, the court held that there was sufficient evidence
to allow Plaintiffs to seek punitive damages on the individual
excessive-force claims that had survived summary
judgment.
    The six individual Defendants against whom individual
excessive-force claims were allowed to proceed filed a
timely interlocutory appeal from the district court’s denial of
qualified immunity. Thereafter, the court granted Plaintiffs’
unopposed motion for entry of a partial judgment, under
Rule 54(b), on all decided claims. Plaintiffs timely appealed
that adverse partial judgment. We have jurisdiction over
both appeals under 

. See Trim v. Reward
Zone USA LLC, 

, 1160 (9th Cir. 2023); Estate
of Anderson v. Marsh, 

, 730–31 (9th Cir. 2021).
                                    II
    We turn first to Plaintiffs’ class claims of excessive force
under the Fourth and Fourteenth Amendments. 5 As noted
earlier, the district court certified a damages class, but only
with respect to persons in the Free Speech Zone “who were
unlawfully dispersed by the use of gas, pepper spray, pepper
bullets, or other chemical agents.” Plaintiffs contend that the
district court erred in concluding that the excessive-force

5
  Because Plaintiffs do not dispute the district court’s determination that
the evidence concerning the various claims asserted by Puente, Poder,
and Gonzalez Goodman were co-extensive with those of the classes, we
will not separately discuss the claims of those three Plaintiffs. Our
holdings with respect to the class claims are dispositive of any separate
claims of Puente, Poder, and Gonzalez Goodman. Plaintiffs’ opening
brief also does not contest the district court’s determination that, if the
district court correctly held that the damages class’s excessive-force
claims failed, then Plaintiffs’ class claims for injunctive relief based on
excessive-force also fail. We therefore do not separately discuss such
injunctive claims.
24                PUENTE V. CITY OF PHOENIX


claims of these class members were governed by Fourteenth
Amendment standards rather than Fourth Amendment
standards. They also contend that, under either set of
standards, summary judgment for Defendants was improper.
We consider these contentions in turn.
                              A
    By its terms, the Fourth Amendment protects the “right
of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures.”
See U.S. CONST. amend. IV (emphasis added). Accordingly,
when a police application of force involves a “seizure” of a
“person,” we evaluate whether that force was excessive
under the Fourth Amendment’s “‘objective reasonableness’
standard.” Graham v. Connor, 

 (1989)
(citation omitted). In contrast, when presented with a claim
of injuries resulting from alleged excessive force applied
“outside the context of a seizure,” we apply a Fourteenth
Amendment substantive due process standard that asks
whether the police behavior “shocks the conscience.”
County of Sacramento v Lewis, 

, 846–47
(1998). Here, we agree with the district court that the PPD’s
dispersal of class members by the airborne transmission of
chemical irritants (such as tear gas and pepper spray) and
auditory or visual irritants (such as the sound and flash
produced by flash-bang grenades) does not constitute a
seizure within the meaning of the Fourth Amendment.
    “The ‘seizure’ of a ‘person’ can take the form of physical
force or a show of authority that in some way restrains the
liberty of the person.” Torres v. Madrid, 

, 311
(2021) (simplified). A seizure by show of authority, “such
as an order for a suspect to halt,” does not constitute a
“seizure” within the meaning of the Fourth Amendment
                   PUENTE V. CITY OF PHOENIX                  25


“unless and until the arrestee complies with the demand.” 

(emphasis added); see also California v. Hodari D., 

 (1991). But a seizure by physical force may occur
even “if the force, despite hitting its target, fails to stop the
person.” Torres, 592 U.S. at 311. In reaching this latter
conclusion, Torres drew on the common law governing
“arrests,” which constitute the “quintessential[]” “seizure”
covered by the Fourth Amendment. Id. at 312 (citation
omitted). Because, at common law, “an officer’s application
of physical force to the body of a person for the purpose of
arresting him was itself an arrest—not an attempted arrest—
even if the person did not yield,” id. at 311 (emphasis
altered) (internal quotation marks omitted), the Court
concluded that a “seizure” includes a “laying on of hands or
application of physical force to restrain movement, even
when it is ultimately unsuccessful.” Id. at 312 (emphasis
added) (citation omitted). Accordingly, the Court held that
“the application of physical force to the body of a person
with intent to restrain is a seizure even if the person does not
submit and is not subdued.” Id. at 325.
    The Court in Torres underscored the importance of the
common law’s intent-to-restrain requirement to any finding
of a “seizure” based on the “application of physical force to
the body of a person.” 592 U.S. at 325; see also id. at 317
(“A seizure requires the use of force with intent to
restrain.”). That critical element prevents the “common law
rule” from “transform[ing] every physical contact between a
government employee and a member of the public into a
Fourth Amendment seizure.” Id. at 317. The Court further
explained that, with respect to this element, “the appropriate
inquiry is whether the challenged conduct objectively
manifests an intent to restrain, for [the courts] rarely probe
the subjective motivations of police officers in the Fourth
26                PUENTE V. CITY OF PHOENIX


Amendment context.” Id. And just as an officer’s purely
subjective intent is not relevant, so too the inquiry does not
“depend on the subjective perceptions of the seized person.”
Id.
     Plaintiffs do not contend that they were seized by a
“show of authority” to which they submitted, but only that
they were seized by an application of physical force with an
objective intent to restrain. We will assume, without
deciding, that the diffuse airborne transmission of chemical
irritants or intense flashes or sounds at a group of persons
may constitute an “application of physical force to the body
of [those] person[s].” Torres, 592 U.S. at 311; cf.
Headwaters Forest Def. v. County of Humboldt, 

, 1129–30 (9th Cir. 2002) (holding that the direct
application of pepper spray to the eyes of protesters using a
Q-tip was an application of force for Fourth Amendment
purposes); Edrei v. Maguire, 

 (2d Cir.
2018) (holding that deliberate use of sounds loud enough to
cause physical injury constitutes an application of force for
Fourth Amendment purposes). But even on that assumption,
Defendants’ use of such irritants to disperse the crowd from
the Free Speech Zone does not constitute a seizure because
there is no basis in the record for concluding that it was
undertaken with the necessary objective intent to restrain.
See Torres, 592 U.S. at 317–18.
    Torres makes clear that an objective intent to “restrain,”
for Fourth Amendment purposes, refers to measures that
objectively aim to detain or confine the person, even if only
temporarily or even if only through a “mere touch.” 592
U.S. at 317–18; see also id. at 318 (“[B]rief seizures are
seizures all the same.”). In deriving the contours of its
understanding of a “seizure,” Torres relied on two common
law analogies—namely, the common law governing
                   PUENTE V. CITY OF PHOENIX                   27


“arrests” (for seizures with probable cause) and the common
law of “false imprisonment” (for seizures without probable
cause). Id. at 311, 320. As the Court noted, “[t]he point of
an arrest” is “to take custody of a person to secure his
appearance at a proceeding.” Id. at 319 (emphasis added).
Likewise, “[t]he tort of false imprisonment”—which the
Court agreed was “the closest analogy to an arrest without
probable cause”—“required ‘confinement,’ such as ‘taking a
person into custody under an asserted legal authority.’” Id.
(emphasis added) (simplified) (quoting RESTATEMENT OF
TORTS §§ 35, 41 (1934)). Because an objective intent to
assert custody over a person, or to confine the person, was
required for any form of “arrest,” the requisite intent to
restrain is present only when the force applied objectively
aims at detaining or confining the person. It follows that an
application of force with an objective intent merely to
disperse or exclude persons from an area—and without any
measures objectively aimed at detaining or confining them
in the process—does not involve the necessary “intent to
restrain” that might give rise to a “seizure.”
    The correctness of this conclusion is confirmed by
considering what a contrary conclusion would mean with
respect to the other form of “seizure” covered by the Fourth
Amendment (and not at issue in this case). As noted earlier,
the Court in Torres confirmed that a “‘seizure’ of a ‘person’
can take the form of physical force or a show of authority
that in some way restrains the liberty of the person.” Torres,
592 U.S. at 311 (emphasis added) (simplified). However, a
“show of authority that in some way restrains” a person does
not become a seizure “unless and until the [person] complies
with the demand.” Id. (emphasis added). If a mere objective
intent to disperse suffices to constitute an intent to “restrain,”
that would mean that a simple instruction to leave an area or
28                PUENTE V. CITY OF PHOENIX


certain premises would constitute a “seizure” if it is obeyed.
And that would mean, for example, that a public librarian
who merely instructs all the patrons to leave at closing time
has “seized” all of those who comply. We are aware of no
support for such an extravagant proposition. On the
contrary, the common law consistently treated orders of
“exclusion” from a place as not satisfying the “confinement”
requirement of the tort of false imprisonment. See
RESTATEMENT OF TORTS § 36 cmt. b (1934) (“[If] A
wrongfully prevents B from entering the United States[,] A
has not confined B, although B, in a sense, may be said to be
confined within the residue of the habitable world”); see also
RESTATEMENT (THIRD) OF TORTS: INTEN. TORTS TO
PERSONS § 8, Reporter’s Note on cmt. b (Tentative Draft No.
3, 2018) (stating that “exclusion from a place, even if
wrongful, does not ordinarily constitute confinement”).
    We hasten to add that the analysis would be different if,
in the course of accomplishing such an intended dispersal or
exclusion, a person uses measures that objectively aim to
detain or confine another person. Thus, for example, the
public librarian who, in order to accomplish the dispersal or
exclusion of patrons who ignore a closing-time instruction
to leave, grabs them and then pushes or throws them out has
effectuated a “seizure.” The same would be true if the
librarian pressed the shoulder of overstaying patrons and
physically escorted them to the door. In both instances, a
seizure has occurred because the librarian has used measures
that objectively detained or confined the patrons’
movement—even if only temporarily—so that, under the
librarian’s control, the patrons will be moved out the door.
The fact that the librarian’s ultimate objective was to exclude
the patrons from the premises is not normally enough, by
                   PUENTE V. CITY OF PHOENIX                 29


itself, to constitute an objective intent to restrain that gives
rise to a seizure.
    With these principles in mind, we conclude that
Plaintiffs failed to produce sufficient evidence to establish
that, in the course of attempting to disperse and exclude class
members from the Free Speech Zone, the Defendant
officers’ application of force through the use of various
diffusely-applied airborne irritants involved measures that
objectively aimed at detaining or confining them, even
temporarily. As we have noted, and as the district court
emphasized, the district court did not certify a class with
respect to Plaintiffs’ claims that some persons were directly
physically impacted by projectiles, such as the physical
pepper balls. And the district court certified a class of
persons dispersed by exposure to chemical irritants only
because it concluded that “the very nature of the use of gas
is that it is not contained to a certain individual or a small
area” (emphasis added). Thus, in evaluating the class’s
excessive-force claims, we set aside any individualized
physical impacts to individual class members by projectiles
and focus only upon the class members’ generalized
exposure to chemical irritants that were objectively aimed at
moving them out of the area. But Plaintiffs have produced
no evidence that the chemical deployments at issue here
were undertaken with an objective intent to restrain, such as,
for example, by targeting an immobilizing level of force at
selected individuals. They also do not show that the
deployments somehow resulted in any submission to the
officers’ show of force, which arguably would have
constituted a seizure from a show of authority. See Torres,
592 U.S. at 311 (“An arrest requires either physical force . . .
or, where that is absent, submission to the assertion of
authority.” (simplified)).      On the contrary, Plaintiffs
30                 PUENTE V. CITY OF PHOENIX


expressly conceded in their opening brief that the
deployments at issue here “quickly dispersed all protesters
from the crowded Free-Speech Zone.” On this record, the
only reasonable conclusion is that the dispersal of the class
members was accomplished without measures objectively
aimed at detaining or confining them. There was thus no
objective intent to restrain and no seizure for Fourth
Amendment purposes.
    In nonetheless arguing that the Defendant officers here
effectuated a seizure, Plaintiffs rely on a variety of clearly
distinguishable cases, all of which involved scenarios where
the defendant officers did detain or confine persons, even if
only briefly, or applied force objectively aimed at restraint
or confinement in the course of attempting to disperse them.
Cf. Torres, 592 U.S. at 323 (noting that a seizure can occur
even if the arrestee is “never actually brought within the
physical control of the party making an arrest” (citation
omitted)); id. (“[A] seizure is a single act, and not a
continuous fact.” (simplified)).           For example, in
Headwaters, the officers repeatedly, directly, and
individually applied pepper spray with a Q-tip to the eyes of
a set of protesters who had linked themselves together using
“black bears,” i.e., metal devices that shielded the protesters’
arms from being separated unless the protesters
affirmatively unlocked the devices from the inside. 276 F.3d
at 1127–29. The aim was to cause irritation that was so
intolerable that the protesters would voluntarily release
themselves from the black bears, which some of them did.
Id. In addressing the protesters’ excessive-force claims, we
considered whether the officers’ use of pepper spray
constituted excessive force “to effect an arrest.” Id. at 1130
(emphasis added). We also emphasized that, at the time that
the officers applied the pepper spray, they already “had
                  PUENTE V. CITY OF PHOENIX                 31


control over the protesters,” who were guarded over by the
officers. Id. A situation, such as Headwaters, in which
persons are already being detained under the control of
officers, and for the objective purpose of effectuating their
arrest, is obviously a “seizure” under Torres. Nothing
comparable is presented with respect to the claims of the
class members here.
     Likewise, in Nelson v. City of Davis, 

 (9th
Cir. 2012), campus police officers attempting to clear
partygoers out of an apartment complex launched
pepperballs directly at a particular group of students, and one
of the pepperballs “struck Nelson in the eye,” causing him to
“immediately collapse[] on the ground and f[a]ll into the
bushes where he writhed in pain for ten to fifteen minutes.”

. Nelson suffered permanent eye injuries requiring
“multiple surgeries.” 

 In rejecting the officers’ argument
that there was no seizure because they had not subjectively
intended to hit Nelson, we concluded that there was a seizure
because “[t]heir conduct was intentional, it was aimed
towards Nelson and his group, and it resulted in the
application of physical force to Nelson’s person as well as
the termination of his movement.” 

; see also
Sanderlin v. Dwyer, 

, 917 n.2 (9th Cir. 2024)
(observing that the officers in Nelson “objectively
manifested an intent to restrain by firing projectile
pepperballs into the crowd, knowing there was a
significantly high risk that one such projectile could strike
and incapacitate a member of the group”). The airborne
dissemination of irritants in this case, by contrast, involves
no such measures that were objectively aimed at restraining
the class members or that actually succeeded in the
“termination of [their] movement.” Nelson, 

;
cf. Sanderlin, 116 F.4th at 913 (finding an objective intent to
32                    PUENTE V. CITY OF PHOENIX


restrain when the type of force applied was “chiefly
designed, intended, and used for the purpose of
incapacitat[ion],” and the force was indisputably “an act that
meaningfully interfere[d]” with the targets’ “freedom of
movement” (simplified)).
    Felarca v. Birgeneau, 

 (9th Cir. 2018), is
similarly distinguishable. In Felarca, the protesters engaged
in apparent misdemeanor violations when they “link[ed]
arms with other students” in order to block officers from
taking down tents that had been illegally set up on campus
grounds. 

. But the officers did not use force
that was objectively merely aimed at dispersal. Rather, they
sought to accomplish the dispersal by the use of direct force
that objectively aimed at momentarily detaining the
plaintiffs within the officers’ control—specifically, the
officers physically struck or jabbed the plaintiffs with batons
and knocked one of them to the ground. 

. That sort
of conduct, which involves force objectively aimed at the
temporary restraint of the person, is more akin to our earlier
example of the librarian who accomplishes a dispersal by
throwing a patron out bodily or physically escorting them
out. Again, nothing comparable has been shown with
respect to the class claims in this case. 6 Cf. Torres 592 U.S.
at 317 (“While a mere touch can be enough for a seizure, the
amount of force remains pertinent in assessing the objective
intent to restrain.”).

6
  Likewise unavailing is Plaintiffs’ reliance on Bennett v. City of
Eastpointe, 

 (6th Cir. 2005). There, the officer first
seized the plaintiffs by stopping them on their bicycles by “flash[ing] his
overhead lights,” and he then ordered and “escorted” them in crossing
the street. 

 at 833–34. This case does not involve any such directed
and specific control over a person’s movements following an initial
conceded seizure.
                  PUENTE V. CITY OF PHOENIX                33


    Because the record shows that the Defendant officers’
use of airborne irritants here was not objectively aimed at
restraining the class members, even temporarily, there was
no “seizure” of the class members within the meaning of the
Fourth Amendment.
                              B
    Having found that the class’s excessive-force claims
arose “outside the context of a seizure,” we evaluate those
claims under the Fourteenth Amendment “shocks-the-
conscience test.” County of Sacramento, 

.
    We have used “two tests” to determine “whether
officers’ conduct ‘shocks the conscience,’” and “[w]hich test
applies turns on whether the officers had time to deliberate
their conduct.” Ochoa v. City of Mesa, 

, 1056
(9th Cir. 2022). Where “the situation at issue evolved in a
time frame that permits the officer to deliberate before
acting,” then an officer’s use of force will be found to
“shock[] the conscience” if the officer acted with “deliberate
indifference” toward any resulting harm. 

 (simplified);
see also County of Sacramento, 523 U.S. at 849–53. If, on
the other hand, “the situation at issue escalated so quickly
that the officer had to make a snap judgment,” then the
officer’s use of force “shocks the conscience” only if the
officer acted with “a purpose to harm [the plaintiff] for
reasons unrelated to legitimate law enforcement objectives.”
Ochoa, 26 F.4th at 1056 (simplified); see also County of
Sacramento, 523 U.S. at 852–54.
   We have stated that the word “deliberation,” for these
purposes, should not be interpreted in a “narrow, technical
sense.” Wilkinson v. Torres, 

 (9th Cir.
2010). Though a police officer may literally have “time to
34                PUENTE V. CITY OF PHOENIX


deliberate” while, e.g., chasing a suspect, we nevertheless
apply the “purpose to harm” standard whenever the
circumstances “force the officers to act quickly.” 

 In
other words, “actual deliberation is practical” only when
officials have “time to make unhurried judgments, [with] the
chance for repeated reflection, largely uncomplicated by the
pulls of competing obligations.” County of Sacramento, 

 (emphasis added). Thus, for example, we
have applied the “purpose to harm” standard in cases
involving the active use of force during “sudden police
chases” or “prison riot[s],” where officers “have obligations
that tend to tug against each other,” which they must balance
“in haste, under pressure, and frequently without the luxury
of a second chance.” 

 (citation omitted); see also
Porter v. Osborn, 

 (9th Cir. 2008)
(“[W]hen an officer encounters fast paced circumstances
presenting competing public safety obligations, the purpose
to harm standard must apply.”).
    We conclude that the situation in this case is one that
escalated quickly, requiring officers to respond promptly
without “the luxury . . . of having time to make unhurried
judgments.” County of Sacramento, 

;
Sanderlin, 116 F.4th at 914 (finding that “officers obviously
have a legitimate safety interest in controlling a mass of
people” and that such circumstances can force “split-second
judgments” (simplified)). It is therefore governed by the
“purpose to harm” standard. Although the situation in the
Free Speech Zone may not have risen to the level of an actual
“riot,” see County of Sacramento, 523 U.S. at 852–53
(referring to a “prison riot” as an archetypal situation in
which “a much higher standard of fault than deliberate
indifference has to be shown for officer liability”), it
presented significant public safety concerns that warranted
                  PUENTE V. CITY OF PHOENIX               35


prompt action. It is undisputed that the decision to disperse
the crowd in this case was made over the course of three
minutes between 8:34 and 8:36 PM, after members of the
crowd had thrown at officers both a canister emitting an
unknown gas and a pyrotechnic device. Moreover, in the
minutes immediately preceding this decision, the crowd had
become increasingly unruly, with suspected Antifa members
attempting to breach the fence separating the Free Speech
Zone from the Public Safety Zone. Persons in the crowd
were also throwing objects with increasing frequency,
despite PPD’s more targeted deployment of pepper balls to
deter such behavior. On top of that, these events occurred
contemporaneously with the President of the United States
departing the immediate vicinity. We conclude that, based
on the undisputed facts, the rapidly deteriorating situation
had evolved into one requiring quick judgments under
pressure, and that the “purpose to harm” standard therefore
governs.
    Applying that standard, we conclude that there is no
triable issue of any such purpose to harm here. Plaintiffs
point to “nothing in the record suggesting that the officers
had an improper purpose to harm” at the time they decided
to employ chemical irritants and flash-bang grenades to
disperse the crowd. See Ochoa, 26 F.4th at 1058. The level
of force here is not so gratuitous as to give rise to a
reasonable inference that it was applied for the purpose of
inflicting harm rather than for the “legitimate law
enforcement objectives” of “self-protection, and protection
of the public.” Id. at 1056 (citations omitted). Any such
inference is all the more unreasonable given the undisputed
record evidence about the officers’ overall restrained
management of the protest prior to the decision to clear the
Free Speech Zone. Plaintiffs argue that a contrary inference
36                PUENTE V. CITY OF PHOENIX


is nonetheless warranted in light of the fact that, sometime
after the protest, an unknown person arranged for the
creation of a commemorative coin that mockingly displayed
a protester being hit by a munition, and several PPD officers
possessed or distributed the coins. But such later-occurring
events, even if distasteful, have “minimal relevance”
because they “took place after the officers” applied the force
in question. Id. at 1058 (reaching a similar conclusion about
officers’ alleged “cheering and laughing,” after the fact,
about their use of force).
    Because the Fourteenth Amendment’s “purpose to
harm” standard (rather than the Fourth Amendment’s
reasonableness standard) governs the Defendant officers’
use of chemical irritants and flash-bangs against the class
members, and because there is no triable issue of such a
purpose to harm, the district court correctly granted
summary judgment against the class on its claims of
excessive force in violation of the Fourth and Fourteenth
Amendments.
                             III
    We turn next to the individual excessive-force claims
asserted by Plaintiffs Yedlin, Travis, and Guillen.
    These claims are presented to us in the context of the
individual Defendants’ interlocutory appeal of the denial of
qualified immunity to them on these claims. “Our de novo
review of a grant [or denial] of summary judgment based on
qualified immunity involves two distinct steps.” Sandoval
v. Las Vegas Metro. Police Dep’t, 

 (9th
Cir. 2014). Specifically, government officials are entitled to
qualified immunity “unless (1) they violated a federal
statutory or constitutional right, and (2) the unlawfulness of
their conduct was ‘clearly established at the time.’” District
                   PUENTE V. CITY OF PHOENIX                 37


of Columbia v. Wesby, 

, 62–63 (2018) (citation
omitted). “A right is clearly established when it is
‘sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.’” Rivas-
Villegas v. Cortesluna, 

, 5 (2021) (quoting
Mullenix v. Luna, 

, 11 (2015)). “We may address
these two prongs in either order.” Sandoval, 

 (citing Pearson v. Callahan, 

(2009)).
    To the extent that these Plaintiffs’ individual excessive-
force claims overlap with the class’s claims, our earlier
analysis governs as well, and those claims fail at the first
prong of the qualified immunity analysis. However, each of
these three Plaintiffs’ situations differs from the class claims
in that each of them individually experienced a direct
physical impact from a munition fired by a PPD officer. Our
earlier analysis finding no “seizure” with respect to the class
claims therefore does not carry over to these Plaintiffs’
individual claims based on such physical impacts. However,
we need not resolve whether these individual Plaintiffs
experienced a temporary “seizure” when they were directly
impacted by physical objects that were potentially
momentarily disabling. See Nelson, 

. Even
assuming that they were, we conclude that, based on the
undisputed facts, the Defendant officers were entitled to
qualified immunity because they acted reasonably under the
circumstances or violated no clearly established law.
                               A
    We first address Yedlin’s individual excessive-force
claim.
  As noted earlier, around 8:32 PM on August 22, 2017,
members of the crowd began aggressively pushing the fence
38                PUENTE V. CITY OF PHOENIX


separating the Free Speech Zone from the Public Safety
Zone in an apparent attempt to breach it. Plaintiff Ira Yedlin
was among the members of the crowd shaking the fence.
Defendant Moore ordered Defendant officers to fire pepper
balls at the ground directly in front of the group, which
caused the group to back away. Grenadiers fired additional
pepper balls at individuals who did not disperse. Yedlin,
who had initially retreated after the first volley, resumed
shaking the fence within 11 seconds of his retreat, and at that
point he was struck several times by pepper balls—in the
face, lower back, and in three places on the legs.
    “[W]hether an officer has used excessive force” in
violation of the Fourth Amendment’s objective
reasonableness standard “‘requires careful attention to the
facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.’” Kisela v. Hughes, 

, 103
(2018) (quoting Graham, 

). We also consider
“the availability of less intrusive alternatives to the force
employed and whether warnings were given.” Felarca, 

. Whether there is an immediate threat to physical
safety is generally the most important consideration. Young
v. County of Los Angeles, 

 (9th Cir.
2011). “The ‘reasonableness’ of a particular use of force
must be judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.”
Graham, 

. The reasonableness analysis must
further “embody allowance for the fact that police officers
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
                  PUENTE V. CITY OF PHOENIX                 39


particular situation.” 

 at 396–97. We have emphasized
that the “ultimate inquiry” always remains “whether the
totality of the circumstances justifies a particular sort of
seizure.” Young, 

 (simplified).
    We have previously described as “significant” the risk of
physical harm from the physical impact of pepper balls.
Nelson, 

. In Nelson, the “actual harm
caused” was also quite serious, because Nelson was
“rendered immobile,” experienced “temporary blindness,”
suffered “permanent loss of visual acuity,” and was “forced
to endure multiple surgeries.” 

. Yedlin’s
actual injuries, which consisted predominantly of bruising,
were not as serious as those in Nelson. Accordingly, the
district court properly characterized the resulting physical
force used against Yedlin as “intermediate.”
    Defendants do not contend that Yedlin was committing
a crime at the time he was struck by the pepper balls, and the
record does not disclose that there was any attempt to
actually arrest Yedlin or that he resisted any such arrest. As
a result, this is not a situation in which the use of force can
be justified by either the “severity of the crime at issue” or
the need to overcome resistance to arrest. Graham, 

. Rather, Defendants’ asserted justification for the
particular deployment of force that struck Yedlin was “the
severity of the security problem at issue,” Kingsley v.
Hendrickson, 

, 397 (2015), and the immediate
threat that Yedlin’s actions created in that regard. The PPD
had a very significant interest in avoiding any breach of the
security fence separating the Free Speech Zone from the
Public Safety Zone, because that would present an
immediate and substantial threat to the safety of the officers,
nearby members of the public, and potentially even the
President’s motorcade. By returning and vigorously shaking
40                PUENTE V. CITY OF PHOENIX


the fence just seconds after the PPD had repelled an apparent
attempt to breach it, Yedlin posed an immediate threat to the
PPD’s ability to maintain this boundary. Cf. Nelson, 685
F.3d at 880–81 (noting that police officers faced no
immediate security concerns at the time they fired pepper
balls at Nelson). Moreover, although no verbal warnings
were given, see Felarca, 

, that carries little
weight here given that Yedlin returned to the fence after a
prior round of pepper balls had just been fired to the ground
to prevent what the officers reasonably perceived to be an
attempt by suspected Antifa members to breach the fence.
Yedlin was thereby actually on notice of such a potential use
of force even without verbal warnings.
    Examining the totality of the circumstances, we conclude
that, as a matter of law, Defendants’ use of intermediate
force against Yedlin was a reasonable response that was
“commensurate[]” to the PPD’s strong interest in avoiding
any breach of the fence. Young, 

; see also
Nelson, 

 (“[O]fficers ‘are not required to use
the least intrusive degree of force possible’” (citation
omitted)). Consequently, Yedlin’s Fourth and Fourteenth
Amendment rights were not violated. We therefore
conclude that the relevant individual Defendants were
entitled to qualified immunity on Yedlin’s claim and that the
district court erred in concluding otherwise.
                             B
    We next address the individual excessive-force claim
asserted by Travis.
    After the PPD made several attempts to disperse the
crowd and announced an unlawful assembly from a
helicopter above the Free Speech Zone, at about 9:02 PM a
police vehicle arrived at one corner of the Free Speech Zone
                   PUENTE V. CITY OF PHOENIX                 41


and repeatedly communicated further unlawful assembly
announcements. Some individuals remained on Second
Street, including Travis. PPD then formed a “skirmish line”
and moved north on Second Street, using pepper balls to
disperse the remaining individuals, particularly those that
PPD officers perceived as aggressive.
     Undisputed video evidence and Travis’s own testimony
show that Travis intentionally approached the moving
skirmish line in order to “get a shot of [it]” with her camera.
Travis positioned herself “right in front” of the skirmish line,
at a distance of “about ten to [fifteen] feet,” as it marched
forward. The video evidence demonstrates that Travis
moved toward the skirmish line even after officers had
begun deploying chemical spray at the crowd in her
immediate vicinity. After taking her photos, Travis turned
and began to slowly walk away from the police line, at which
point police fired a weapon toward her at close range, the
force of which grazed her shoulder, knocked her sunglasses
off of the top of her head, and caused her to fall over.
Viewing the record in the light most favorable to Travis, she
was targeted with a “muzzle blast”—a burst of chemical
powder with irritating properties—as well as pepper spray
and an unknown projectile. Travis walked home shortly
thereafter, which she was able to do unassisted. Travis was
left with a burning sensation in her eyes for roughly fifteen
minutes, a temporary cough, and bruising on her backside
that caused her to miss a day of work.
    We conclude that Defendants’ use of force against Travis
was objectively reasonable. As with Yedlin, Travis’s actual
injuries were nowhere near as serious as those in Nelson, and
we view the force deployed against her as intermediate. See
Nelson, 

. Like Yedlin, Travis was not
being arrested and was not resisting arrest. However, unlike
42                 PUENTE V. CITY OF PHOENIX


Yedlin’s situation, Travis was struck after she remained in
the area in clear disregard of the repeated announcement that
an unlawful assembly had been declared and after multiple
orders to disperse had been issued. Moreover, Travis chose
to place herself directly in front of the advancing skirmish
line, and in doing so, she placed herself between the officers
and near the remaining crowd behind her, which was
continually throwing objects at the officers. That Travis
chose to place herself in that situation does not diminish the
PPD’s strong interests in addressing the lawlessness behind
her, in maintaining the advance of the skirmish line, and in
enforcing the unlawful-assembly order. Viewing all of the
circumstances in context, the repeated applications of force
made by the advancing officers, including the particular
blast that impacted Travis, were reasonable measures to
accomplish the PPD’s substantial interests in public safety.
See Forrester v. City of San Diego, 

, 807–08 (9th
Cir. 1994) (noting the distinctive public safety interests
involved with responding to organized and concerted
lawlessness).
    But even if we were to assume that the Defendant
officers violated Travis’s Fourth Amendment rights, they are
nevertheless entitled to qualified immunity because the
relevant right asserted by Travis was not clearly established.
For a right to have been “clearly established,” it must have
had a “sufficiently clear foundation” in precedent at the time
of the challenged conduct. Wesby, 583 U.S. at 63. This
typically means that then-existing precedent must have
“clearly prohibit[ed] the officer’s conduct in the particular
circumstances before him,” id., but general rules may suffice
to clearly establish the illegality of an officer’s action in an
“obvious case,” Kisela, 584 U.S. at 105 (citation omitted).
Here, Plaintiffs do not cite any case that could have “clearly
                  PUENTE V. CITY OF PHOENIX                43


establish[ed]” that Defendants’ use of force against Travis
was objectively unreasonable. The closest case is Nelson,
which similarly dealt with the use of projectile chemical
tools against an unruly group. But the defendants in Nelson
deployed force against a group of college partiers at an
apartment complex who had already been effectively
confined by police and were peacefully awaiting instructions
on how and when they could leave. See Nelson, 685 F.3d at
872–74. Furthermore, there was no objective indication of
any “threatening or dangerous behavior.” Id. at 880–81.
These differences, among others, make clear that Nelson “is
materially distinguishable” and thus does not clearly
establish the law governing this case. Rivas-Villegas, 595
U.S. at 6. And this is plainly not an “obvious” case in which
every reasonable officer would have recognized that the
Defendant officers’ conduct was unlawful.
    For these reasons, we conclude that the district court
erred in failing to grant summary judgment, on qualified
immunity grounds, to the relevant individual Defendants
with respect to Travis’s excessive-force claims.
                              C
   We turn next to Guillen’s excessive-force claim.
    The use of force against Plaintiff Guillen occurred at the
intersection of Monroe Street and Third Street—the eastern
edge of the Free Speech Zone. At the time, protesters in the
area directly across from the Phoenix Convention Center had
been dispersed, but many protesters remained in the larger
area. Although Defendant Moore had already decided to
declare an unlawful assembly at this time, PPD had not yet
begun broadcasting that order to the protesters. Prior to
escalating their use of force, the PPD officers across from
Guillen’s section of the Free Speech Zone deployed inert
44                PUENTE V. CITY OF PHOENIX


smoke on the ground in front of the police fence. Guillen
expressed confusion over the officers’ intention, although
her companion stated that he believed the PPD wanted the
protesters to “go home.” Uncontroverted video evidence
shows that, at 8:50 PM, an unidentified object was fired into
the crowd of protesters from the direction of the Public
Safety Zone. This prompted most of the protesters present
at the intersection—including Guillen—to walk northward
along Third Street, away from the police fence. She was hit
by a projectile of some kind in her stomach and upper hip,
causing her to bleed. Video shows that Guillen was able to
walk with some assistance from her friend. According to
Guillen, this wound caused her severe pain in the immediate
aftermath of the protest, as well as for several days
afterward. Additionally, Guillen claims that the range of
movement in her leg has not fully returned, and that she now
requires the use of an inhaler.
    Viewing the record in the light most favorable to Guillen,
the PPD’s use of force against her constituted a seizure, and
we conclude that there is a triable issue as to whether that
use of force was objectively unreasonable. There are a
number of features surrounding the particular use of force
that struck Guillen that distinguish it from the uses of force
against Yedlin and Travis. In particular, in contrast to
Travis’s situation, the video evidence does not show any
obviously unlawful or threatening conduct occurring in
Guillen’s immediate vicinity prior to the relevant
Defendants’ use of force. Nor did Guillen engage in any
personal conduct, as Yedlin had done, that itself presented a
risk to public safety. Guillen was also not disobeying any
orders—at the time, no announcement of an unlawful
assembly had been made, and the video evidence indicates
that she was confused as to what she was supposed to do.
                  PUENTE V. CITY OF PHOENIX                 45


But in the absence of the sort of factors we noted with respect
to Yedlin and Travis, we conclude that, even if Guillen had
“heard and was in non-compliance with the officers’ orders
to disperse, this single act of non-compliance, without any
attempt to threaten the officers or place them at risk,” would
not make reasonable the particular use of chemical
projectiles against her, causing the moderately serious
injuries she experienced. See Nelson, 

.
    Nonetheless, we conclude that Nelson is “materially
distinguishable” in several respects and that it therefore did
not “clearly establish” that the relevant Defendants’ actions
violated Guillen’s rights. First, Nelson emphasized the
overall “absence of exigency involved” in the officers’
dispersal of the gathering at issue in that case. 

. Though the officers in that case “plainly had an interest
in clearing [an] apartment complex” of rowdy college
partiers once the owner of the complex requested it, we
found that “the desire to do so quickly, in the absence of any
actual exigency, [could not] legitimize the application of
force when it is not otherwise justified.” 

 Thus, Nelson
did not involve the larger exigent public safety concerns that
are present in the overall context of this case. Second, we
emphasized in Nelson that Nelson was part of a group of
“students gathered with [him] in the breezeway” of the
apartment, which was a separate and “very narrow and
confined space,” and that several of the “defendant officers
stated in their depositions that they did not see anyone in
Nelson’s group throwing bottles or engaging in any other
threatening or dangerous behavior.” 

.
Although there was no apparent misconduct in Guillen’s
immediate area at the time that she was struck, she was not
in a discretely separate zone from those down the block in
the Free Speech Zone who were still engaged in such acts.
46                PUENTE V. CITY OF PHOENIX


Moreover, the officers were reasonably concerned about the
possibility of troublemakers “circulat[ing] anonymously
within the larger crowd of protesters.” Third, although (like
Nelson) no verbal order to disperse had been given at that
point, there had been (unlike Nelson) numerous objective
indicia that the police were trying to clear the area.
    Because no precedent “‘squarely governs’ the specific
facts at issue” and because this is not an “obvious case,”
Kisela, 584 U.S. at 104–05 (citations omitted), we conclude
that the relevant Defendants are entitled to qualified
immunity with respect to the force used against Guillen.
Accordingly, on that basis, we reverse the district court’s
denial of summary judgment to the relevant individual
Defendants.
                              IV
    We turn next to the First Amendment claims, which are
asserted by all Plaintiffs, on their own behalf and on behalf
of the classes.
                              A
    We have stated that “protests or assemblies cannot be
dispersed on the ground that they are unlawful unless they
‘are violent or pose a clear and present danger of imminent
violence’ or they are violating some other law in the
process.” Collins v. Jordan, 

 (9th Cir.
1996) (citation omitted); see also 

 (stating that “enjoining
or preventing First Amendment activities before
demonstrators have acted illegally or before the
demonstration poses a clear and present danger is
presumptively a First Amendment violation”). Plaintiffs
contend that the PPD’s dispersal of the class members
                   PUENTE V. CITY OF PHOENIX                 47


violated the First Amendment because, in their view, the
requisite “clear and present danger” was not present.
    Whether a particular situation presents a clear and
present danger of imminent lawlessness must be evaluated
under an objective standard, rather than based on the
subjective apprehensions of the officers. Johnson v. Perry,

 (2d Cir. 2017) (stating that “[f]ear of
serious injury cannot alone justify suppression of free speech
and assembly” and that “there must be reasonable ground to
fear that serious evil will result” (emphasis omitted) (citation
omitted)). Moreover, in assessing whether a sufficient clear
and present danger justifies dispersal of a crowd, “[i]t is the
tenor of the demonstration as a whole that determines
whether the police may intervene; and if it is substantially
infected with violence or obstruction the police may act to
control it as a unit.” Washington Mobilization Comm. v.
Cullinane, 

 (D.C. Cir. 1977) (citing
Grayned v. City of Rockford, 

 (1972)).
Accordingly, the question here is whether the conduct of the
persons in the Free Speech Zone, taken as a whole, created
objectively reasonable grounds to conclude that there was a
“clear and present danger of riot, disorder, interference with
traffic upon the public streets, or other immediate threat to
public safety, peace, or order.” Cantwell v. Connecticut, 

 (1940); see also Grayned, 

(“[W]here demonstrations turn violent, they lose their
protected quality as expression under the First
Amendment.”).
    We conclude that, based on the undisputed facts, there
were sufficient objectively reasonable grounds to establish
the requisite “clear and present danger” of an “immediate
threat to public safety, peace, or order.” The decision that
the assembly had become unlawful was made by Moore at
48                 PUENTE V. CITY OF PHOENIX


some point during the minutes of 8:34 to 8:36 PM, after
unknown persons in the crowd had thrown into the Public
Safety Zone a canister emitting an unidentified gas as well
as a pyrotechnic device. By that point, the PPD had already
repelled, through the use of chemical munitions, one
organized attempt to breach the police fence that separated
protesters from the Public Safety Zone. Despite that limited
use of force, it is undisputed that the suspected Antifa
members who had attempted to breach the Public Safety
Zone then proceeded to “circulate anonymously within the
larger crowd of protesters,” followed by a significant
escalation of “objects being thrown from the crowd.” It was
only after this escalation occurred and, in particular, after the
gas canister and pyrotechnic device were thrown, that the
PPD began to disperse the protesters from the Free Speech
Zone. Whatever the outer boundaries of the “clear and
present danger” test may be, we think that circumstances
involving the use of unidentified gas and pyrotechnic
devices by agitators dispersed throughout a crowd,
escalating violence toward the officers, an organized attempt
to breach a police line, and the exigent concern of
presidential security, falls within it.
    Accordingly, we hold that Defendants were properly
granted summary judgment with respect to Plaintiffs’ First
Amendment claim that there was an insufficient “clear and
present danger” to justify dispersal of the Free Speech Zone.
But even if we assumed that there was a triable issue on that
score, we conclude that Plaintiffs have failed to identify any
precedent that would clearly establish that Defendants
violated Plaintiffs’ rights in the context that they confronted.
See Plumhoff v. Rickard, 

, 778–79 (2014)
(stating that, for a right to be “clearly established,” the
“right’s contours” must have been “sufficiently definite that
                   PUENTE V. CITY OF PHOENIX                  49


any reasonable official in the defendant’s shoes would have
understood that he was violating it”). Accordingly, the
individual Defendants are also entitled to qualified immunity
on this claim.
                               B
     It is not entirely clear from Plaintiffs’ briefs whether
Plaintiffs are contending that a First Amendment retaliation
claim may properly be asserted in the crowd-dispersal
context in addition to a clear-and-present-danger claim or
only as an alternative to it. There are strong arguments that
a conventional First Amendment retaliation framework, with
its focus on subjective causation, is a poor fit for the crowd-
dispersal context, because it adds little to the objective clear-
and-present-danger analysis and will often raise
“particularly difficult” causation questions. Nieves v.
Bartlett, 

, 402 (2019) (relying upon similar
concerns in holding that First Amendment retaliatory arrest
claims require a showing of a lack of objective probable
cause). But we need not resolve any such issues because,
even assuming that conventional First Amendment
retaliation principles may also be applied here, we conclude
that there is no triable issue that the dispersal of the crowd
was undertaken with retaliatory intent.
    As the district court correctly concluded, the undisputed
facts do not support a reasonable inference of retaliatory
intent. The PPD worked in advance to coordinate with
protesters in order to ensure that the protests were conducted
peacefully, and the protests went on without any serious
incident for several hours. When problems then began to
arise, the PPD initially responded with more limited
measures and only decided to disperse the crowd when the
requisite objective clear and present danger had
50                PUENTE V. CITY OF PHOENIX


materialized. On these facts, no reasonable jury could
conclude that the dispersal was in fact subjectively
motivated by antipathy to Plaintiffs’ political speech.
Plaintiffs again point to the after-the-fact distribution,
among some officers, of a commemorative coin that
mockingly displayed a protester being hit in the groin by a
munition and that bore the politicized inscription “Making
America great again one nut at a time.” But such later-
occurring conduct by individual officers, even if distasteful
or immature, does not provide a sufficient basis for
reasonably inferring, in the context of all of the
circumstances of this case, that the actions taken in
immediate response to a clear and present danger were
instead undertaken because of hostility to the protesters’
views. Cf. Ochoa, 26 F.4th at 1058. We affirm the district
court’s grant of summary judgment on this claim.
                              C
    Plaintiffs also argue that their First Amendment rights
were violated because Defendants failed to issue a verbal
dispersal order before beginning to try to disperse the crowd.
We disagree.
    Plaintiffs contend that the Second Circuit’s decision in
Jones v. Parmley, 

 (2d Cir. 2006), supports their
view that the First Amendment always requires a verbal
dispersal order. That is wrong. Jones held that such a verbal
order was required in the context of a “peaceful protest” in
which, without warning and in the absence of a clear and
present danger, the police “charged into the crowd, arresting
protesters indiscriminately.” 

 at 60 & n.5. Indeed, Jones
made clear in a footnote that it did not adopt any per se rule.
See 

 at 60 n.5 (stating that the court “ha[s] no occasion to
determine whether police would be permitted to disperse
                     PUENTE V. CITY OF PHOENIX                        51


without warning a crowd more akin to a mob than the
peaceful protest plaintiffs describe”); see also Garcia v.
Does, 

, 94 n.11 (2d Cir. 2015) (rejecting the view
that Jones establishes a per se rule of advance notice). We
reject Plaintiffs’ claim that the First Amendment required a
verbal dispersal order before officers could begin
undertaking measures to clear the Free Speech Zone. 7
                                   V
    We affirm the district court’s summary judgment to
Defendant Police Chief Williams. Plaintiffs contend that, as
a supervisor, she was liable for the individual officers’
violations of their constitutional rights. To establish such
liability, Plaintiffs must demonstrate that Williams either
“participated in or directed the violations, or knew of the
violations of subordinates and failed to act to prevent them.”
Preschooler II v. Clark County Sch. Bd. of Trs., 

, 1182 (9th Cir. 2007) (simplified). But there can be no
such supervisorial liability in the absence of an underlying
constitutional violation. Moreover, we have held that, when
the subordinate officers have not been shown to have
“violated a clearly established right, it necessarily follows
that [their police supervisors] cannot have violated a clearly
established right by supervising” those officers. Felarca,

. Because we have concluded that all of
Plaintiffs’ claims either fail or did not involve the violation

7
  We express no view as to whether other provisions of the Constitution
might require advance notice before undertaking steps such as, for
example, individual arrests for failing to disperse. Cf. Barham v.
Ramsey, 

, 575–76 (D.C. Cir. 2006) (stating that the “Fourth
Amendment” requires that, in clearing an “unruly demonstration,”
officers must “invok[e] a valid legal mechanism for clearing the area and
then provid[e] an opportunity for affected persons to follow an order to
disperse”).
52                   PUENTE V. CITY OF PHOENIX


of a clearly established right, Plaintiffs’ claims of
supervisorial liability necessarily fail. On that basis, we
affirm the district court’s grant of summary judgment to
Williams. 8
                                  VI
    Lastly, we address Plaintiffs’ claims of municipal
liability against the City of Phoenix under 

.
    A municipality “may be liable in a §1983 action . . .
when the plaintiff proves that the municipality caused the
plaintiff’s injury.” Barone v. City of Springfield, Oregon,

, 1106–07 (9th Cir. 2018) (citing Monell, 

). Municipal liability will not result from every
wrongful act committed by an employee, but only those
which occur pursuant to “official policy . . . for which the
municipality is actually responsible.” Pembaur v. City of
Cincinnati, 

 (1986) (simplified). “Official
policy” includes “decisions of a government’s lawmakers,
the acts of its policymaking officials, and practices so
persistent and widespread as to practically have the force of
law.” Connick v. Thompson, 

 (2011). A
municipality may also be liable for “decision[s] not to train
certain employees about their legal duty to avoid violating
citizens’ rights,” but such liability arises only where the
failure to train “amounts to deliberate indifference to the
rights of persons with whom the untrained employees come
into contact.” 

 (quoting City of Canton, Ohio v. Harris,

 (1989)) (simplified).
    On appeal, Plaintiffs rely on two theories of municipal
liability: (1) a final policymaker caused the allegedly
8
 For the same reason, the district court erred in holding that Moore and
McBride could be held liable under a supervisorial liability theory. See
supra note 4.
                   PUENTE V. CITY OF PHOENIX                 53


unconstitutional acts, and (2) the city’s failure to train its
officers amounted to “deliberate indifference.” Viewing the
record in the light most favorable to Plaintiffs, we agree with
the district court that there is no genuine issue of material
fact that could support either of these arguments.
                               A
    A municipality may be liable for constitutional
violations if the municipal employee who caused the
plaintiff’s constitutional injury is an official with “final
policymaking authority.” City of St. Louis v. Praprotnik,

 (1988). Plaintiffs argue that the district
court erred when it determined that the City Council and City
Manager—but not Defendant Chief Williams—were the
relevant final policymakers for the City of Phoenix. We
need not resolve this issue. As explained above, Plaintiffs
have raised a triable issue as to only one constitutional
violation—namely, the individual excessive-force claim
asserted by Guillen. Even assuming that Chief Williams had
final policymaking authority, Plaintiffs have failed to raise a
triable issue that Chief Williams caused or ratified the use
of excessive force against Guillen. See Chudacoff v.
University Med. Ctr. of S. Nev., 

, 1151 (9th
Cir. 2011) (stating that, to establish Monell liability based on
the actions of “an individual with ‘final policymaking
authority,’” the plaintiff must show that the constitutional
“injury was caused or ratified” by that person (citation
omitted)).
    In arguing that Chief Williams’s conduct suffices to
establish municipal liability, Plaintiffs emphasize that she
“was the final policymaker for law-enforcement matters
related to President Trump’s rally” and that she oversaw the
preparations for the event and “personally briefed the TRU
54                    PUENTE V. CITY OF PHOENIX


squad before they went out.” But these contentions, at best,
are directed at Chief Williams’s asserted role in the overall
preparation for, and management of, the event. These points
might conceivably have had some persuasive force if we had
found triable violations of the class members’ constitutional
rights in the course of the event, but we have rejected all of
the classes’ claims on the merits. What we have found,
instead, is a single specific use of force against Guillen that,
under the distinctive circumstances of her situation, a
reasonable jury could find to be excessive. Even assuming
arguendo that Chief Williams established municipal policy
for the overall management of the event, Plaintiffs have
proffered no evidence that Chief Williams caused the
situation-specific use of excessive force against Guillen. See
Board of the Cnty. Comm’rs v. Brown, 

(1997) (stating that “it is not enough for a § 1983 plaintiff
merely to identify conduct properly attributable to the
municipality” and that “[t]he plaintiff must also demonstrate
that, through its deliberate conduct, the municipality was the
‘moving force’ behind the injury alleged” and that this
requires a showing of “the requisite degree of culpability” as
well as “a direct causal link between the municipal action
and the deprivation of federal rights”). 9
   Plaintiffs alternatively argue that Chief Williams
subsequently “ratified PPD’s conduct” in her “post-rally
9
  We reject Plaintiffs’ argument that municipal liability here can rest on
the theory that Chief Williams delegated her asserted final policymaking
authority to Moore, who then caused the use of excessive force against
Guillen. At most, Plaintiffs have established that Moore exercised
discretion to act in the field pursuant to municipal policies established by
others, which we have held is not sufficient to establish a delegation of
municipal policymaking authority for purposes of municipal liability
under § 1983. See Christie v. Iopa, 

, 1236–37 (9th Cir.
1999); Tevino v. Gates, 

, 920 (9th Cir. 1996).
                   PUENTE V. CITY OF PHOENIX                   55


public statements.” “To show ratification, a plaintiff must
show that the ‘authorized policymakers approve a
subordinate’s decision and the basis for it.’” Lytle v. Carl,

 (9th Cir. 2004) (citation omitted). Here,
Plaintiffs have failed to present sufficient evidence that
Chief Williams knew and approved of the particular use of
force against Guillen, much less that she endorsed the “basis
for it.” 

 Plaintiffs have instead presented evidence that
Chief Williams arguably ratified the overall management of
the event, which we have held has not been shown to have
been constitutionally deficient.
                                B
    As to Plaintiffs’ “failure to train” theory, Plaintiffs failed
to present sufficient evidence to allow a reasonable trier of
fact to find that the City of Phoenix was “deliberately
indifferent” to Plaintiffs’ constitutional rights.
    A municipality incurs liability for a failure to train when
“the need for more or different training is so obvious, and
the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the city can
reasonably be said to have been deliberately indifferent to
the need.” City of Canton, 

. “Deliberate
indifference” is “a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious
consequence of his action.” Hyun Ju Park v. City & County
of Honolulu, 

, 1141 (9th Cir. 2020) (quoting
Board of County Comm’rs of Bryan County, Okl. v. Brown,

 (1997)). To succeed on a “failure to train”
theory of Monell liability, it is thus “ordinarily necessary”
for a plaintiff to demonstrate “[a] pattern of similar
constitutional violations by untrained employees.” Connick,

. However, the Court has left open the
56                 PUENTE V. CITY OF PHOENIX


possibility that “a single violation of federal rights,
accompanied by a showing that the municipality has failed
to train its employees to handle recurring situations
presenting an obvious potential for such a violation, could
trigger municipal liability.” Brown, 

.
    Plaintiffs base their “failure to train” argument on the
assertion that, although the City of Phoenix extensively
trains PPD officers “on how to use” chemical agents to
disperse protesters, it failed to properly teach them “whether
or when” to do so. As previously discussed, we have found
no triable issue as to whether Defendants committed a
constitutional violation in most claims in this case, but we
disposed of Guillen’s excessive-force claim solely based on
the “clearly established” prong of qualified immunity.
Given that there therefore is a triable issue only as to whether
Defendants caused Guillen to suffer a constitutional injury,
Plaintiffs’ “failure to train” claim rests on showing that
Guillen’s injury in particular was the obvious result of the
allegedly inadequate training. See Tsao v. Desert Palace,
Inc., 

 (9th Cir. 2012). But Plaintiffs
have failed to show that her constitutional injury was such
an obvious consequence that PPD’s failure to more
thoroughly train its officers on the use of chemical agents
amounted to “deliberate indifference” toward her rights.
    Plaintiffs do not provide any basis to dispute the record
evidence showing that the PPD did train its officers about
“whether or when” to deploy chemical agents. The record,
including portions cited by Plaintiffs, show that PPD officers
received training on the responsibility to protect protesters’
“constitutional rights to assemble and exercise free speech”
and were told that chemical agents should only be deployed
when “absolutely necessary” and “other passive means have
failed to restore order.”         Furthermore, the record
                   PUENTE V. CITY OF PHOENIX                 57


demonstrates that the PPD instructed its commanders to
issue dispersal warnings to the crowd “with significant
amplification and repetition as necessary to be heard by the
entire crowd” “if time and circumstances permit,” prior to
the deployment of chemical agents. The PPD’s training
materials describe even the indirect use of pepper balls in
particular as justified only “[t]o prevent the possibility of
injury to an officer or another person,” or to “subdue a
person who is threatening or attempting physical harm to self
or another, resisting arrest, RIOTING, or interfering with an
arrest.”
    Rather than cite any “instance[] of similar unlawful
conduct” prior to the protest—let alone a pattern—that might
provide the City with notice that its existing training
program was inadequate, Plaintiffs instead assert that this
case presents the “rare” fact pattern in which evidence of a
single violation is enough to establish Monell liability under
a “failure to train” theory. See Connick, 

. But
the record indicates that, despite deploying at numerous
protests every year, Grenadiers rarely resort to using
chemical agents. Plaintiffs do not explain how Guillen’s
alleged constitutional injury in this case is an “obvious
consequence” of PPD’s current training regimen when the
record indicates that PPD officers almost never deploy
chemical agents, let alone illegally. Cf. Connick, 563 U.S.
at 63–64 (stating that, in “the hypothetical example of a city
that arms its police force with firearms and deploys the
armed officers into the public to capture fleeing felons
without training the officers in the constitutional limitation
on the use of deadly force,” such a failure to train ”could
reflect the city’s deliberate indifference” to constitutional
violations, “[g]iven the known frequency with which police
attempt to arrest fleeing felons and the ‘predictability that an
58                PUENTE V. CITY OF PHOENIX


officer lacking specific tools to handle that situation will
violate citizens’ rights’” (citation omitted)). We therefore
determine that the district court was correct that Plaintiffs
failed to raise a material factual dispute regarding a “failure
to train” for purposes of Monell.
                      *       *       *
    We therefore affirm the district court’s dismissal of
Plaintiffs’ claims against Defendant City of Phoenix.
                             VII
   We reverse the district court’s denial of summary
judgment to the relevant individual Defendants on Plaintiffs
Yedlin, Travis, and Guillen’s excessive-force claims and
hold that these individual Defendants are entitled to qualified
immunity. We affirm the district court’s grant of summary
judgment to Defendants on all remaining claims.
  AFFIRMED IN PART, REVERSED IN PART, and
REMANDED.