Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT LUCY H. KOH, District Judge. Plaintiff Joseph Ciampi, proceeding pro se, brings the instant action against the City of Palo Ato and current and former employees of the Palo Ato Police Department. Plaintiffs claims arise out of an incident on March 15, 2008 that resulted in Plaintiffs arrest and the use of Taser guns against him. The criminal charges against Plaintiff were dismissed, and Plaintiff now seeks redress for alleged violations of his Fourth and Fourteenth Amendment rights, as well as violations of state law. The action is before the Court on Defendants’ motion for summary judgment. The Court held oral argument on April 21, 2011. Having considered the arguments and submissions of the parties, the Court GRANTS in part and DENIES in part Defendants’ motion for summary judgment. Specifically, the Court GRANTS summary adjudication in favor of Defendants on the following claims: (1) first cause of action under 42 U.S.C. § 1983; (2) fifth cause of action for defamation; (3) sixth cause of action for malicious prosecution; and (4) seventh cause of action for false imprisonment and false arrest. The Court DENIES summary adjudication on the following claims: (2) second cause of action for assault and battery; (3) third cause of action for intentional infliction of emotional distress; and (4) fourth cause of action for negligence. I. Background A. The March 15, 2008 Incident This case arises out of an incident that occurred on March 15, 2008, in which officers of the Palo Ato Police Department used Taser guns to subdue and arrest Plaintiff Joseph Ciampi. On the morning of March 15, 2008, Plaintiff was sleeping in his vehicle, a 1985 Dodge Ram van, which was parked on Lincoln Street in a residential neighborhood of Palo Ato, California. Second Amended Complaint (“SAC”) ¶ 14. Plaintiff claims that he had been parking his vehicle on Lincoln Avenue and neighboring streets on and off for nearly ten years. Decl. of Joseph Ciampi in Supp. of Pl.’s Opp’n to Defs.’ Mot. for Summary Judgment (“Ciampi Deck”) ¶ 63. That morning, Palo Ato resident Ken Asman called the Palo Ato police to complain about a man living in a van outside his house. SAC ¶ 15; Deck of Steven A. Sherman in Supp. of Defs.’s Mot. for Summary Judgment (“Sherman Deck”), Ex. 18. Defendants have submitted a recording of the 911 call Mr. Asman made to the Palo Ato police dispatch, Sherman Deck ¶ 21 & Ex. 18, and Plaintiff also provides a transcript of the call, which conforms to the recording provided by Defendants. Ciampi Deck Ex. 548-2-548-5. On the call, Mr. Asman stated that a man, acknowledged by all parties to be Plaintiff, had been parking and living on the street outside his house and “scares the daylights out of [Mr. Asman’s] wife.” Sherman Deck Ex. 18. Mr. Asman acknowledged that Plaintiff had never threatened his wife, but stated that he scares his wife and that “it’s sort of a veiled threat ... he’s out there all the time.” Id. Mr. Asman also stated that his wife was coming back from vacation, and his young daughter was coming back from school, and he did not want Plaintiff to be there when they returned. Id. The dispatcher advised Mr. Asman that there was no law against living in a vehicle, but stated that “we’ll check it out.” Id. The parties appear to agree that Plaintiff was not violating any laws by sleeping or living in his parked vehicle. At approximately 10:07 a.m. on March 15, 2008, Defendant Police Officers Manuel Temores and Kelly Burger were dispatched to Lincoln Street based on Mr. Asman’s report. Palo Ato Police Department Report 08-1777 (including reports by Officers Temores, Wagner, and Burger), Sherman Deck Ex. 2 at 29, 38. Defendant Police Officer April Wagner also responded to the calk Id. at 33. Defendant Te-mores arrived at the scene first, followed by Defendant Wagner. Id. at 33, 38. At the location identified by Mr. Asman, Te-mores and Wagner saw a blue van with windows that were “boarded up” with cardboard or “blackened.” Id. at 29, 33. Temores and Wagner approached the van and knocked on its exterior. Id. at 29, 33. Them reports of the incident conflict as to whether they heard a response from inside the van, but they agree that after knocking, Defendant Wagner opened the van’s side door, which she claims was unlocked and partially open. Id. at 29, 33. Plaintiff claims that he was asleep and wearing earplugs at the time, and that he was awakened by a noise outside the van. Ciampi Deck ¶ 65. He claims that before he could identify the noise, an unknown person began to open the door to his van. Id. Startled, he shut and locked the door. Id. After Plaintiff shut the van door, Defendants Wagner and Temores explained that they just needed to speak with him and told him to open the door so they could talk to him. Sherman Deck Ex. 2 at 29, 33; Ciampi Deck ¶ 65. Plaintiff told the police officers that he did not want to talk to them and remained in the van with the door closed and locked. Sherman Decl. Ex. 2 at 29, 33; Ciampi Decl, ¶ 65. Eventually, Defendant Temores “used a bluff’ to induce Plaintiff to exit the van. Sherman Decl. Ex. 2 at 29. He first informed Plaintiff that they intended to tow his vehicle for overnight parking and then pretended to use his radio to ask dispatch to send out a tow truck. Id. at 29, 33. This induced Plaintiff to open the door and exit the van, barefoot and wearing only a T-shirt and shorts. Id. at 29, 33; Ciampi Decl. at 66-67. In their reports on the incident, Defendants Temores and Wagner state that Ciampi was very angry when he exited the van and came out screaming at them. Sherman Decl. at 29, 33. Plaintiff acknowledges that he was “upset” and “agitated” because he believed (apparently correctly) that he was not violating any law and had the right to refuse to speak with the police. Ciampi Decl. ¶ 65-66. Once he exited the vehicle, Plaintiff demanded to know what ordinance he was accused of violating and why Defendants intended to tow his vehicle. Ciampi Decl. ¶¶ 66-67. Defendant Wagner’s report characterizes Plaintiffs behavior as “verbally abusive and argumentative” and states that he was “completely uncooperative and used angry words.” Sherman Decl. at 33. Defendant Temores’s report states that he “felt scared and threatened by the way [Plaintiff] exited the van in such an explosive manner.” Id. at 29. Shortly after Plaintiff exited the van, Defendant Burger arrived on the scene. In his report, Burger states that when he exited his patrol car, he heard a man using profanity and raising his voice. Sherman Decl. Ex. 2 at 38. Burger’s report also states that when he arrived at the van, Plaintiff appeared very upset, and his fists were clenched. Id. Around that time, Defendant Burger commented that Plaintiff was likely under the influence of drugs. Id. at 33. The Defendants’ reports state that they observed “pock marks” or abscesses on Plaintiffs arms similar to those associated with heroin addicts and other persons who use intravenous drugs. Id. at 30, 33, 38. The police reports also state that Plaintiffs pupils were either dilated or constricted. See id. at 30 (Temores report stating that Plaintiffs pupils were dilated); id. at 38 (Burger report stating that Plaintiffs pupils were constricted to 3.0-1.5 millimeters). Based on these observations, as well as Plaintiffs agitation, Defendants state that they believed Plaintiff was likely under the influence of a controlled substance. Id. at 30, 33, 38. Indeed, Plaintiff states that Defendant Te-mores accused him of being a heroin addict, and that Plaintiff vehemently denied the accusation. Ciampi Decl. ¶ 68; SAC ¶ 25; see also Sherman Decl. Ex. 15 at 10:10:06-08 (MAV recording in which a voice says, “Are you a heroin addict or what?”). Plaintiff acknowledges that he has a skin condition that causes sores on his skin, but claims that the sores were on the tops of his arms, not on his veins. Ciampi Decl. ¶ 68. Plaintiff states that he pointed this out to Defendants at the time, explaining that “drug users don’t shoot into the tops of their arms, they shoot into their veins.” Ciampi Decl. ¶ 68; Sherman Decl. Ex. 15 at 10:10:07-14. Plaintiff also claims that at some point around this time, he heard Defendant Burger say that Plaintiff was under arrest. Id. ¶ 69. Plaintiff did not know for what he was being arrested. Id. At this point, the situation quickly escalated, and Plaintiff and Defendants provide somewhat differing accounts of what occurred. B. Defendants’ Account of the Use of Force According to the Defendants, at some point, either after Burger used the term “550” (short for Health and Safety Code § 11550(a), being under the influence of a controlled substance) or after Burger asked Plaintiff to step away from the van door, Plaintiff jumped back into the van. Sherman Decl. Ex. 2 at 30, 33, 38. This concerned the Defendants because the van was unsecured, and they did not know whether Plaintiff had a weapon accessible. Id. at 30, 38. Defendant Burger told Plaintiff to exit the van, but Plaintiff instead starting making a call on his cell phone. Id. at 30, 33. When Plaintiff remained in the van, Defendants Burger and Temores activated their Tasers and pointed them at Plaintiffs chest. Id. at 30, 38. Although Burger warned Plaintiff that they would deploy their Tasers if he did not come out of the van, Plaintiff refused to come out and told them that he was calling his lawyer. Id. at 30, 38. Plaintiff then scooted toward the door of the van, put his feet on the pavement, and picked up a two-liter plastic soda bottle partially filled with a liquid. Id. at 30, 33, 38. Defendant Temores claims that he “immediately thought the 2-liter of soda could be a dry-ice bomb which could be used as a weapon against us.” Id. at 30. Defendant Burger then pulled Plaintiff from the van and moved him against a residential fence. Defendant Temores states that Burger attempted to grab Plaintiffs arms, but Plaintiff flailed his arms at Burger. Id. Temores then “yelled to Officer Burger to deploy his Taser” because Temores had placed his Taser back in his holster and was too close to deploy it. Id. Apparently convinced that Plaintiff was attempting to escape and concerned that there might be a weapon in the van, Defendant Burger shot one Taser cartridge at Plaintiff from approximately one foot away. Id. at 38. Defendant Burger reported that after he activated his Taser, Plaintiff “appeared to be dancing on his feet.” Id. Thereafter, however, the officers claim that Plaintiff charged at Defendant Burger and either hit or attempted to hit him. Id. at 30, 29. Defendant Burger then pulled Plaintiff to the ground, and Defendants Temores and Wagner fought Plaintiff on the ground while Burger reloaded his Taser. Id. at 30, 39. The officers claim that Plaintiff continued to resist arrest, kicking and hitting them. Id. at 30, 34. During the struggle on the ground, Defendant Temores activated his Taser in “stun-drive” mode and drove the Taser into Plaintiffs front torso. Id. at 30. After that, Plaintiff stopped fighting and complied with verbal commands, and Defendants were able to handcuff and arrest him. Id. Defendants’ reports indicate that Plaintiff was bleeding from his left forearm, causing “a small puddle of blood to gather on the sidewalk.” Id. at 34, 39. Plaint also suffered abrasions to his upper left arm, left shoulder, below his right eye, and to both front thighs. Id. at 34. C. Plaintiffs Account of the Use of Force Plaintiffs version of the facts leading up to the Taser deployment is somewhat different. He claims that after he heard Defendant Burger state that he was under arrest, Plaintiff turned around and picked up his cell phone to call someone to secure his vehicles and possessions so that they would not be impounded. Ciampi Decl. ¶ 69. However, he claims that as soon as he began to pick up his cell phone, Defendants Burger and Temores rushed at him. Id. Plaintiff therefore scooted into his vehicle so that he could complete his phone call. Id. At that point, Defendants Burger and Temores pointed their Tasers at Plaintiff and ordered him to exit the vehicle. Id. Plaintiff claims that he complied with this order, pausing on his way out of the van to pick up an open bottle of Diet Sprite that had fallen to the ground and set it upright. Id. Plaintiff states that he distinctly remembers walking over to the residential fence of his own accord, with his hand in the air. Id. ¶ 70. Once at the fence, Plaintiff turned around to face Defendant Burger, with Defendant Temores standing an arm’s length away. Id. Defendant Burger ordered Plaintiff to put his hands behind his back. Id. ¶ 71. Concerned that he could lose his belongings permanently if arrested, Plaintiff wanted to complete his phone call and asked Defendant Burger if he could do so. Id. Plaintiff claims that, then, without any warning, Defendant Burger fired his Taser gun while aiming the laser sight at Plaintiffs face. Id. Plaintiff felt “strong, powerful and extremely painful surges of pressure” in his arm and chest. Id. ¶ 71. He states that the pain was “both excruciating and frightening” and that if felt “like someone had hooked a fire hose to my arm and were pumping thousands gallons of water into my body through my arm.” Id. at ¶¶ 71-72. Plaintiff began to swing his left arm violently in an attempt to dislodge the Taser probe from his arm. Id. at ¶ 71. He states that once he realized that Burger did not intend to stop Tasing him, he instinctively attempted to knock the Taser out of Burger’s hands. Id. at ¶ 72. Plaintiff claims that after he hit the Taser gun, the flow of electricity stopped, but then Defendant Burger pulled the trigger on the Taser a second time. Id. at ¶ 74. Plaintiff estimates that Defendant Burger shocked him for over 20 seconds total. Id. at 76. He also claims that Defendant Te-mores deployed his Taser gun in the direction of Plaintiffs face and groin area. Id. ¶ 78. In addition to the injuries acknowledged by Defendants, Plaintiff claims that he suffered a puncture wound to his rear end and that there was blood all over the back of his shorts from that wound. Id. at ¶ 81. D. Plaintiffs Criminal Proceedings and Initiation of the Instant Action After his arrest on March 15, 2008, Plaintiff was charged with obstructing or resisting an officer in performance of his duties, Cal.Penal Code § 69. See Transcript of December 17, 2008 Proceedings in People v. Ciampi, No. BB833050, Sherman Decl. Ex. 7 at 185. The state court held preliminary examination proceedings beginning on December 1, 2008, and considered a motion to suppress on December 17, 2008. See Sherman Decl. Exs. 4-7. In the motion to suppress, Plaintiffs criminal defense counsel argued that the ruse employed by Officer Temores — pretending to call a tow truck to tow Plaintiffs van — was unlawful and required suppression of the Officers’ subsequent observations of Plaintiff. Judge Thang Nguyen Barrett agreed, finding that at the point of the Officers’ initial contact with Plaintiff, he was suspected of no criminal activities and had a right to refuse to talk to the police. Sherman Deck Ex. 7 at 185. Judge Barrett reasoned that the ruse employed by Officer Temores to coerce Plaintiff from his van unlawfully circumvented Plaintiffs right not to submit to a consensual encounter. Id. Concluding that the rest of the encounter flowed from the unlawful ruse, Judge Barrett granted the motion to suppress and dismissed the criminal complaint. Id. at 185-86. Approximately six months later, Plaintiff filed the instant action in federal court against the City of Palo Alto; former Palo Alto Chief of Police Lynn Johnson; current Chief of Police Dennis Burns; Officers Temores, Wagner, and Burger; Sergeant Natasha Powers; and Agent Dan Ryan. The operative Second Amended Complaint asserts seven causes of action under state and federal law: (1) violations of the Fourth and Fourteenth Amendment, pursuant to 42 U.S.C. § 1983; (2) assault and battery; (3) intentional infliction of emotional distress; (4) negligence; (5) defamation; (6) malicious prosecution; and (7) false arrest and false imprisonment. Defendants now move for summary judgment on all of these claims. II. Legal Standard Summary judgment should be granted if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Material facts are those which may affect the outcome of the case, and a dispute as to a material fact is “genuine” only if there is sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, the Court draws all reasonable inferences that may be taken from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “[T]he district court does not assess credibility or weigh the evidence, but simply determines whether there is a genuine factual issue for trial.” House v. Bell, 547 U.S. 518, 559-560, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). The moving party has the initial burden of production for showing the absence of any material fact. Celotex, 477 U.S. at 331, 106 S.Ct. 2548. The moving party can satisfy this burden in two ways. “First the moving party may submit affirmative evidence that negates an essential element of the nonmoving party’s claim. Second, the moving party may demonstrate to the Court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.” Id. Once the moving party has satisfied its initial burden of production, the burden of proof shifts to the nonmovant to show that that there is a genuine issue of material fact. A party asserting that a fact is genuinely disputed must support that assertion by either citing to particular parts of materials in the record or by showing that the materials cited by the moving party do not establish the absence of a genuine dispute. Fed.R.Civ.P. 56(c). The nonmovant must go beyond its pleadings “and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (internal quotation marks and citation omitted). III. Objections to Evidence On a Rule 56 motion for summary judgment, a party “may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. Pro. 56(c)(2). In this ease, both parties have raised objections to the evidence submitted. A. Defendants’ Objections to Plaintiffs Evidence In support of his opposition brief, Plaintiff, proceeding pro se, submitted several hundred pages of printed documents, including various news articles, transcripts, and photographs, as well as nine DVDs containing audio and video recordings and over 1,500 pages of electronic documents. Defendants object to many of these submissions on grounds of irrelevance, improper opinion, hearsay, lack of personal knowledge, and lack of authentication. The Court finds that much of the evidence to which Defendants object is not relevant to Defendants’ motion for summary judgment and need not be considered in resolving the motion. However, the Court will briefly consider a number of Defendants’ specific challenges that bear on evidence relevant to the motion. See Doe v. Starbucks, Inc., No. SACV 08-0582 AG (CWx), 2009 WL 5183773, at *1 (C.D.Cal. Dec. 18, 2009) (“In motions for summary judgment with numerous objections, it is often unnecessai'y and impractical for a court to methodically scrutinize each objection and give a full analysis of each argument raised.”). First, Plaintiff has submitted a number of newspaper articles in support of his defamation claim. Ciampi Deck Ex. 321. Defendants object to these articles on grounds of relevance, hearsay, and lack of proper authentication. However, these articles are directly relevant to Plaintiffs defamation claim because they demonstrate publication of statements made by several of the Defendants. See Fed. R.Evid. 401 (evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable”). Moreover, insofar as they are offered as evidence of publication, the articles are not hearsay because they are not offered to prove the truth of the statements contained therein. See Fed. R.Evid. 801(c). Finally, the Court finds that most of the articles are sufficiently authenticated. Pursuant to Federal Rule of Evidence 902(6), printed materials purporting to be newspapers or periodicals are self-authenticating. Here, however, Plaintiff submits copies of newspapers, as well as print-outs of internet publications. Generally, evidence will be admissible if “sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.” United States v. Tank, 200 F.3d 627, 630 (9th Cir.2000) (quoting United States v. Black, 767 F.2d 1334, 1342 (9th Cir.1985)). In considering internet print-outs, courts have considered the “distinctive characteristics” of the website in determining whether a document is sufficiently authenticated. See, e.g. Premier Nutrition, Inc. v. Organic Food Bar, Inc., No. SACV 06-0827 AG (RNBx), 2008 WL 1913163, at *6 (C.D.Cal. Mar. 27, 2008); Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1153-54 (C.D.Cal.2002). In this case, most of the articles submitted by Plaintiff contain sufficient indicia of authenticity, including distinctive newspaper and website designs, dates of publication, page numbers, and web addresses. See Premier Nutrition, Inc., 2008 WL 1913163, at *6 (finding internet print-outs including web address and dates printed to be sufficiently authenticated). Only the internet printouts of the Daily News articles contained in Exhibits 321-4 and 321-7, which do not contain a web address and lack other identifying characteristics, appear to be insufficiently authenticated. The Court will not consider these two articles, but overrules the objection as to the remainder of the articles in Exhibits 321-6 to 321-14. Second, Plaintiff has submitted over 1,500 pages of printed and electronic documents in which he purports to analyze the Taser and Mobile Audio Visual recordings of the incident in order to demonstrate that Defendants have tampered with the evidence. See, e.g., Ciampi Decl. Exs. 508-4 to 508-9, 512 (consisting of Microsoft Word documents totaling over 1500 pages of text and still frames from the Taser and MAV recordings), 517-8 to 517-12, 520. Defendants object that Plaintiffs analysis of the Taser and MAV recordings constitutes lay witness opinion that is not admissible under Federal Rule of Evidence 701. In this case, Plaintiff has not argued that he is offering an expert opinion, and he has set forth no facts establishing that he would qualify as an expert of any kind. Pursuant to Federal Rule of Evidence 701, a lay witness may testify only as to those opinions or inferences which are “(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.R.Evid. 701. Accordingly, lay witness opinions are admissible only to the extent that they are “based upon ... direct perception of the event, are not speculative, and are helpful to the determination” of factual issues before the jury. United States v. Freeman, 498 F.3d 893, 905 (9th Cir.2007). The Court agrees that the inferences and opinions contained in Plaintiffs analysis of the Taser and MAV recordings do not fall within the scope of Rule 701. Although Plaintiff directly perceived the March 15, 2008 incident, the opinions he offers in his analysis of the recordings are based not upon his own experience of the incident, but upon a frame-by-frame analysis of video recordings. See United States v. Durham, 464 F.3d 976, 982 (9th Cir.2006) (“opinion testimony of lay witnesses must be predicated upon concrete facts within their own observation and recollection”) (quotation marks and citation omitted). For the most part, the inferences and opinions Plaintiff draws are based upon minute differences, sometimes imperceptible to this Court, between the various recordings. Based on its review of the documents submitted, the Court finds that Plaintiffs analysis is speculative and unlikely to assist a jury in determining the factual issues before it. The Court finds, further, that analysis of video and audio recordings for evidence of tampering or alteration requires technical or specialized knowledge and is not a proper subject of lay opinion. Cf. United States v. Rearden, 349 F.3d 608, 613 (9th Cir.2003) (discussing expert testimony offered to show that images were not manipulated or altered); Davis v. Clearlake Police Dept., No. C-07-03365 EDL, 2008 WL 4104344 at *10 (N.D.Cal. Sept. 3, 2008) (sustaining objection to letter offered to support argument that audio recording was altered as improper expert testimony). Accordingly, Defendants’ objection to this evidence is sustained. B. Plaintiffs Objections to Allegedly Altered Evidence and False Statements Plaintiff also objects to much of the Defendants’ evidence and argues that their motion should be stricken as based on false statements and evidence. First, Plaintiff objects to statements by Defendants that they were dispatched to the scene based on a report that Plaintiff made Mr. Alsman’s wife and daughter uncomfortable by the way he watched them. It is quite clear that Mr. Alsman never indicated that Plaintiff watched or leered at his wife or daughter. Sherman Decl. Ex. 18 (recording of 911 call). However, it seems that for unexplained reasons the 911 call was inaccurately reported on the Computer Automated Dispatch (“CAD”) report that was dispatched to patrol cars. See Sherman Decl. Ex. 3 (CAD report); id. Ex. 4 at 81 (explaining that CAD reports are dispatched to patrol cars via computer). The CAD report states that Mr. Alsman called regarding a man who “makes his wife and young daughters uncomfortable they [sic] way he watches them.” Id. Ex. 3. It is unclear to what extent the Defendant officers received their information about Plaintiff from the CAD report as opposed to the radio dispatch, which only included the code for “suspicious vehicle” and indicated that the subject was living out of a van. See Sherman Decl. Ex. 18 at 3:18-54 (recording of radio dispatch); id. Ex. 4 at 82 (explaining code for suspicious vehicle). At the very least, however, there is evidence that some of the Defendants were dispatched to the scene based on a CAD report which indicated that Plaintiff watched Alsman’s wife and daughter in a way that made them uncomfortable. While this misinformation is quite unfortunate, it is not grounds for striking portions of Defendants’ motion or evidence. Second, Plaintiff argues that Defendants’ motion should be stricken because Defendants have tampered with the evidence and failed to provide Plaintiff with the original recordings from the Taser cameras involved in the incident. Defendants have submitted four recordings of the incident: two Mobile Audio Video (“MAV”) recordings taken from cameras on Temores’ and Burger’s patrol cars, and two Taser video recordings taken from cameras on Temores’ and Burger’s Taser guns. These recordings have been the subject of several motions to compel, and Plaintiff has repeatedly argued that Defendants altered, manipulated, or even destroyed this evidence. Based on the history of motions to compel in this case, it appears that, at times, Defendants have not fully or promptly complied with their discovery obligations. Indeed, just before the hearing on this motion, Magistrate Judge Paul S. Grewal granted Plaintiffs motion to compel Defendants to provide him with copies of MAV recordings containing the original watermark. See Order Granting Mot. to Compel (Apr. 21, 2011), ECF No. 144. It also appears that Defendants and their expert have made errors during the discovery process that have contributed to Plaintiffs suspicions regarding tampering. See Def.’s Suppl. Ex. 13 in Supp. of Mot. for Summary Judgment (Decl. of Andrew Hinz), ECF No. 129 (declaration submitted to correct errors in the original expert declaration submitted with Defendants’ summary judgment motion). However, as discussed above, Plaintiff has not produced admissible expert testimony suggesting that Defendants altered or tampered with the MAV or Taser recordings. Accordingly, Plaintiffs request to strike this evidence and/or Defendants’ motion is denied. IV. Federal Claims Pursuant to 42 U.S.C. § 1983 In his Second Amended Complaint, Plaintiff brings a number of claims for violations of his Fourth Amendment rights pursuant to 42 U.S.C. § 1983. Defendants seek summary judgment on grounds that no constitutional violation occurred, or, in the alternative, that they are entitled to qualified immunity for any constitutional violation found by the Court. Accordingly, the Court will first provide a framework for addressing Defendants’ claims of qualified immunity and then turn to the substance of each of Plaintiffs federal claims. For the reasons discussed below, the Court GRANTS summary adjudication of Plaintiffs § 1983 claims in favor of the Defendants. A. Qualified Immunity Doctrine The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). Because qualified immunity is an immunity from suit, rather than a defense to liability, it is effectively lost if a case is erroneously permitted to go to trial. Id. For this reason, the Supreme Court has stressed the importance of resolving immunity questions at the earliest possible stage in litigation. Id. Therefore, if, drawing all reasonable inferences in favor of the non-moving party, it is clear as a matter of law that the defendants are entitled to qualified immunity, summary judgment should be granted. See Wilkinson v. Torres, 610 F.3d 546, 548 (9th Cir.2010) (reversing denial of summary judgment where defendants were entitled to qualified immunity as a matter of law). Where a defendant’s entitlement to qualified immunity turns on genuinely disputed issues of fact, however, summary judgment is not appropriate. See Espinosa v. City and County of San Francisco, 598 F.3d 528, 532 (9th Cir.2010) (affirming denial of summary judgment because there were genuine issues of fact regarding whether officers violated plaintiffs Fourth Amendment rights and whether those rights were clearly established); Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir.2003) (“If a genuine issue of material fact exists that prevents a determination of qualified immunity at summary judgment, the case must proceed to trial.”). In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court set forth a two-part approach for analyzing qualified immunity. The analysis contains both a constitutional inquiry and an immunity inquiry. Johnson v. County of Los Angeles, 340 F.3d 787, 791 (9th Cir.2003). The constitutional inquiry requires the court to determine this threshold question: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier, 533 U.S. at 201, 121 S.Ct. 2151. The immunity inquiry, on the other hand, asks whether the right Plaintiff claims was clearly established. Id. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202, 121 S.Ct. 2151. The court has discretion to consider the constitutional and immunity inquiries in any sequence. Pearson, 129 S.Ct. at 818. B. Fourth Amendment Claims against Defendants Wagner, Temores, and Burger 1. Unlawful detention and arrest In his § 1983 claim, Plaintiff alleges that Defendants subjected him to an unreasonable seizure and unlawfully detained and arrested him in contravention of his Fourth Amendment rights. SAC ¶ 53. The parties’ briefs focus on two “seizures” or “detentions” that occurred during the course of the March 15, 2008 incident: (1) Defendant Temores’ conduct in getting Plaintiff to exit the van in the first instance, and (2) the attempt to detain Plaintiff after he returned to the van. The Court will consider each of these seizures in turn. a. Initial Attempt to Remove Plaintiff from the Van First, the parties focus on Defendant Temores’ initial attempt to remove Plaintiff from the van by pretending to call a tow truck to tow Plaintiffs truck. As noted above, the state court found this “ruse” unlawful and dismissed the criminal charges against Plaintiff on that ground. Defendants argue that the state court applied the wrong legal principles and urge this Court to find that Temores’ ruse was lawful. It is well-settled that police officers may use deceptive tactics under some circumstances. United States v. Bramble, 103 F.3d 1475, 1478 (9th Cir.1996). There are limits to the lawful use of deception, however. For instance, an officer may not gain entry to a suspect’s home by misrepresenting the scope, na ture, or purpose of a government investigation. United States v. Bosse, 898 F.2d 113, 115 (9th Cir.1990). Such a “ruse entry[,] when the suspect is informed that the person seeking entry is a government agent but is misinformed as to the purpose for which the agent seeks entry[,] cannot be justified by consent.” Id. Similarly, although the police ordinarily have authority to conduct a warrantless arrest of a suspect standing in the doorway of his home, such an arrest is not lawful if the suspect came to the doorway in response to misrepresentations by the police. United States v. Johnson, 626 F.2d 753, 756-57 (9th Cir.1980). The concern about police deception is “at its zenith when government officials lie in order to gain access to places and things they would otherwise have no legal authority to reach.” United States v. Alverez-Tejeda, 491 F.3d 1013, 1017 (9th Cir.2007). Ultimately, “general Fourth Amendment principles apply: the ruse becomes a search if it intrudes on the person’s reasonable, subjective expectation of privacy.” United States v. Garcia, 997 F.2d 1273, 1280 (9th Cir.1993). Here, Plaintiff was suspected of no criminal activity and therefore had a right to remain in his van and refuse a consensual contact with Defendants Te-mores and Wagner. See Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (absent reasonable suspicion, police may approach any person in a public place, but that person need not answer any questions and “may go on his way”). It would seem, therefore, that Te-mores employed the ruse precisely to “gain access to places and things they would otherwise have no legal authority to reach,” Alverez-Tejeda, 491 F.3d at 1017—that is, to gain access to Plaintiff in a public space. The Court agrees with Plaintiff, and with the state court, that by circumventing his right to refuse a consensual encounter, the ruse intruded upon Plaintiffs reasonable expectation of privacy and violated his Fourth Amendment rights. Defendants argue, however, that they are entitled to qualified immunity for any constitutional violations arising from Te-mores’ use of the ruse. They point out that the law prohibiting police deception has been applied primarily in the context of a residence, rather than a vehicle or other location. The federal cases this Court has identified deal with “ruse entry” into a home or deception used to lure a person to the doorway of his residence. See Johnson, 626 F.2d at 756-57 (emphasizing enhanced privacy expectations in one’s home). Similarly, the California cases relied upon by the state court dealt with “a ruse that lures a suspect out of a residence.” People v. Reyes, 83 Cal.App.4th 7, 12, 98 Cal.Rptr.2d 898 (Cal.Ct.App.2000); see also id. (“A deception used to gain entry into a home and a ruse that lures a suspect out of a residence is a distinction without much difference”); see also People v. Reeves, 61 Cal.2d 268, 273, 38 Cal.Rptr. 1, 391 P.2d 393 (1964) (evaluating ruse to induce opening of hotel room door). As Defendants note, Fourth Amendment jurisprudence has long viewed vehicles as presenting different safety concerns and privacy expectations than stationary residences. While the Supreme Court has recognized that individuals have privacy interests in their vehicles, it has found that those interests are due a lesser degree of protection for two reasons: (1) the exigency that accompanies the “ready mobility” of vehicles, and (2) the reduced expectations of privacy associated with “the pervasive regulation of vehicles capable of traveling on the public highways.” California v. Carney, 471 U.S. 386, 390-91, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). The Supreme Court has found, moreover, that this lesser degree of protection holds even when the vehicle is capable of functioning as a home, as long as the vehicle is readily mobile and located “in a setting that objectively indicates that the vehicle is being used for transportation.” Id. at 393, 105 S.Ct. 2066. Under this principle, motor homes and house boats have been treated as vehicles for purposes of Fourth Amendment analysis, even where those vehicles possess many attributes of a home. See id. at 393-94, 105 S.Ct. 2066 (holding that the automobile exception to the warrant requirement applies to a motor home that is readily mobile, licensed to operate on public streets, and parked in a public lot); United States v. Albers, 136 F.3d 670, 673 (9th Cir.1998) (holding that readily mobile houseboat found in open public waters is subject to the automobile exception). Here, although Defendants had some evidence that Plaintiff was using his van as a home, Plaintiffs van was parked on a public street, readily mobile, and registered for use on public roads and highways. Thus, for purposes of the Fourth Amendment, Plaintiffs vehicle would most likely be treated as a vehicle, subject to lesser protections. See Carney, 471 U.S. at 394 n. 3, 105 S.Ct. 2066 (noting that factors used to determine whether the automobile exception applies include “location, whether the vehicle is readily mobile or instead, for instance, elevated on blocks, whether the vehicle is licensed, whether it is connected to utilities, and whether it has convenient access to a public road”). Defendants argue that case law permitting officers to remove a person from his vehicle for purposes of officer safety would have led a reasonable officer to believe that Plaintiff could lawfully be extracted from his vehicle either by force or by ruse. See Pennsylvania v. Mimms, 434 U.S. 106, 111 n. 6, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (holding that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle”); Maryland v. Wilson, 519 U.S. 408, 413, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (extending Mimms rule to permit removal of passengers following a lawful traffic stop). Because the police had not lawfully detained Plaintiffs van prior to the attempted extraction, the Court does not agree that Mimms and Wilson would justify removal of Plaintiff by ruse or by force. Nor does Plaintiffs refusal to speak to the police, without more, furnish reasonable grounds to detain Plaintiff and remove him from his car. See Florida v. Royer, 460 U.S. at 498, 103 S.Ct. 1319. Nonetheless, the Court agrees that the “weighty interest in officer safety” during vehicle stops, the lesser protection accorded to readily mobile vehicles, and the unsettled scope of case law on unlawful ruses, taken together, is sufficient to demonstrate that the law was not clearly established at the time of Plaintiffs seizure. While case law clearly prohibited a ruse entry into a home, or a ruse that lures a person out of the heightened protection of a residence, it was not entirely clear, in March 2008, that this line of cases should extend to ruses intended to lure a person out of a less protected location, such as a vehicle parked on a public street. Given the reduced expectations of privacy recognized in vehicles and the weight given to officer safety concerns surrounding vehicle stops, it was reasonable for the officers to think that deception, which is lawful in some instances, would be justified under the circumstances they confronted. Plaintiff has not presented any case law suggesting that the law on this issue was clearly established. Accordingly, the Court finds that Defendants are entitled to qualified immunity as to any Fourth Amendment violation caused by Officer Temores’ use of a ruse to extract Plaintiff from his van. In sum, the Court agrees with the determination of the state criminal court that by circumventing Plaintiffs right to refuse a consensual encounter, the ruse employed by Defendant Temores intruded upon Plaintiffs reasonable expectation of privacy and violated his Fourth Amendment rights. However, because the law regarding the use of ruses during vehicle contacts was not clearly established at the time of the March 15, 2008 incident, the Court finds that Defendants are entitled to qualified immunity on this claim. For this reason, the Court GRANTS Defendants’ motion for summary adjudication as to this specific issue. b. Seizure of Plaintiff upon Retreat Into Van The parties next dispute the constitutionality of Defendants’ second attempt to remove Plaintiff from the van and detain him. After Plaintiff initially exited the van in response to Temores’ ruse, Defendant Burger arrived on the scene. It is undisputed that Plaintiff was agitated and exchanged angry words with Defendants Temores, Wagner, and Burger. After Burger arrived, the Defendants began to express concerns that Plaintiff was under the influence of a controlled substance, and Plaintiff, fearful that he would be arrested and his possessions confiscated, retreated into his van to make a call on his cell phone. At that point, Defendants Burger and Temores pointed their Tasers at Plaintiff, ordered him out of the van, and eventually Defendant Burger forcibly pulled Plaintiff away from the van. Defendants argue that this seizure was justified by their reasonable suspicion that Plaintiff was engaged in the criminal activity of being under the influence of a controlled substance. Pursuant to the Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police may conduct “a brief, investigatory search or seizure, so long as they have a reasonable, articulable suspicion that justifies their actions.” Gallegos v. City of Los Angeles, 308 F.3d 987, 990 (9th Cir.2002). Officers may also use reasonable force to effect an investigatory detention where officer safety is at issue. See Allen v. City of Los Angeles, 66 F.3d 1052, 1056-57 (9th Cir.1995); see also United States v. Jacobs, 715 F.2d 1343, 1345-46 (9th Cir.1983) (“the use of force in making a stop will not convert the stop into an arrest ‘if it occurs under circumstances justifying fears for personal safety’”) (quoting United States v. Beck, 598 F.2d 497, 501 (9th Cir.1979)). The reasonable suspicion standard applied to investigatory stops is “ ‘a less demanding standard than probable cause,’ and merely requires ‘a minimal level of objective justification.’ ” Id. (quoting Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). In determining whether officers had reasonable suspicion to justify a brief seizure, courts must “look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). This approach allows officers to “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available” to them. Id. Nonetheless, an officer may not rely upon a mere hunch to justify an investigatory stop. Id. at 274, 122 S.Ct. 744. Rather, “in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In this case, Defendants Temores, Wagner, and Burger claim that they had a reasonable suspicion that Plaintiff was under the influence of a controlled substance, and that they needed to bring Plaintiff under control for their own safety. As discussed in the Background section, Defendants have stated that they believed Plaintiff was under the influence of a controlled substance for the following reasons: (1) Plaintiff was “clearly agitated beyond that of an average person”; (2) Plaintiff was tensing his arms and clenching his fists, and his mouth trembled while he talked to the officers; (3) Plaintiff had sores on his arms that Defendants claim resembled the “pock marks” common to people who use intravenous drugs; and (4) Plaintiffs pupils were either dilated or constricted. Sherman Dec. Ex. 2 at 30, 33, 38. Although Plaintiff acknowledges that he was agitated and angry at the officers, he argues that the facts available to them did not amount to a reasonable suspicion that he was under the influence of a controlled substance. Plaintiff notes, first, that the Defendants’ reports regarding the size of his pupils contradict each other. See Sherman Decl. Ex. 2 at 30 (Temores report stating that Plaintiffs pupils were dilated); id. at 38 (Burger report stating that Plaintiffs pupils were constricted). Plaintiff also points out that he denied using controlled substances and showed Defendants that the sores were located on the tops of his arms and not near his veins, where one would expect to see sores from intravenous drug use. See Burger MAV recording, Sherman Decl. Ex. 15 at 10:10:06-12 (recording of Plaintiff denying that he is a heroin addict and asking “why would I be popping needles there?”). He also argues that mere anger and agitation do not provide a particularized and objective basis for inferring that a person is under the influence. Disregarding the inconsistent evidence of Plaintiffs pupil size, the Court nonetheless agrees with Defendants that the evidence submitted supports a “ ‘particularized and objective basis’ for suspecting legal wrongdoing.” Arvizu, 534 U.S. at 273, 122 S.Ct. 744. Looking at the totality of the circumstances, as the Court must, the Court finds that Defendants were faced with an individual who had appeared unusually agitated since the beginning of the encounter, who exhibited tensed and twitching muscles that could be consistent with use of a controlled substance, and who had “fresh and old” sores on his arms that appeared similar to sores Defendants had observed on individuals suspected of illegal drug use. Sherman Dec. Ex. 2 at 30, 33, 38; id. Ex. 21 ¶ 9. Plaintiff does not controvert these facts, but claims that Defendants drew an incorrect inference from them. As Defendants point out, however, a “mistake of fact will not render a stop illegal, if the objective facts known to the officer gave rise to a reasonable suspicion that criminal activity was afoot.” United States v. Miguel, 368 F.3d 1150, 1153 (9th Cir.2004) (quoting United States v. Mariscal, 285 F.3d 1127, 1131 (9th Cir.2002)). Here, Defendants mistakenly believed that the sores on Plaintiffs arms were associated with intravenous drug use. Although it appears that Plaintiff attempted to demonstrate that his sores were not consistent with drug use, given the tense and fast-moving circumstances, it was not unreasonable for Defendants to conclude otherwise. Reasonable suspicion requires a level of certainty “considerably short of ... a preponderance of the evidence,” and “[a] determination that reasonable suspicion exists ... need not rule out the possibility of innocent conduct.” Arvizu, 534 U.S. at 274, 277, 122 S.Ct. 744. In this case, the uncontroverted facts, taken together, are sufficient to support a reasonable suspicion that Plaintiff was under the influence. See Ramirez v. City of Buena Park, 560 F.3d 1012, 1021 (9th Cir.2009) (finding reasonable suspicion that suspect was under the influence based on fact that the suspect appeared to be sleeping in a car parked outside a drug store with its parking lights on, suspect was breathing rapidly, and suspect gave a “testy” response when the officer tapped on his window). Accordingly, the Court GRANTS Defendants’ motion for summary adjudication on this claim, on grounds that Defendants had reasonable suspicion to justify a brief, investigatory detention of Plaintiff. The Court will now consider whether the use of force that occurred following the initial investigatory stop was reasonable. 2. Excessive force Plaintiff also brings a Fourth Amendment claim based on the alleged use of excessive force during his detention and arrest. The Fourth Amendment does not prohibit a law enforcement officer’s use of reasonable force during an arrest. See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it”). The reasonableness of any particular use of force is judged “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. The inquiry is an objective one, and the question is whether the officers’ actions were “ ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397, 109 S.Ct. 1865. In determining whether an officer’s actions were objectively reasonable, the court must consider “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.” Id. at 396, 109 S.Ct. 1865; see also Tatum v. City and County of San Francisco, 441 F.3d 1090, 1095 (9th Cir.2006). The determination requires careful attention to the facts and circumstances of the particular case and a careful balancing of the individual’s liberty interest against the government’s interest in the application of force. Santos v. Gates, 287 F.3d 846, 853 (9th Cir.2002). Because such balancing “nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom,” the Ninth Circuit has “held on many occasions that summary judgment ... in excessive force cases should be granted sparingly.” Id. a. Use of Taser in Dart Mode First the Court must consider Plaintiffs contention that Defendant Burger’s deployment of his Taser against Plaintiff constituted excessive force in violation of Plaintiffs Fourth Amendment rights. Under Ninth Circuit analysis, the Court must “begin by analyzing the quantum of force — the type and amount of force” that the Defendants used against Plaintiff. Bryan v. MacPherson, 630 F.3d 805, 824 (9th Cir.2010). With respect to Tasers, a series of recent Ninth Circuit decisions has clarified the quantum of force associated with the different ways in which a Taser can be deployed. In Bryan, the Ninth Circuit considered the use of a Taser in dart mode — that is, when an officer uses the Taser to shoot a pair of aluminum darts tipped with stainless steel barbs that are connected to the Taser by insulated wires. Id. The Bryan court explained that when the probes strike a person, an electrical charge is delivered, and “[t]he electrical impulse instantly overrides the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless.” Id. Based on its analysis of the “physiological effects, the high levels of pain, and foreseeable risk of physical injury,” the Ninth Circuit concluded that the use of a Taser in this manner constituted an “intermediate, significant level of force that must be justified by the governmental interest involved.” Id. at 825-26. In contrast, the Ninth Circuit in Brooks v. City of Seattle considered use of a Taser in “drive-stun” mode, which “involves touching the Taser to the body and causes temporary, localized pain only.” Brooks v. City of Seattle, 599 F.3d 1018, 1026 (9th Cir.2010). The Brooks court found that use of a Taser in drive-stun mode, although “certainly a serious intrusion” is “less than the intermediate” intrusion found in Bryan. Id. at 1028. In this case, it is undisputed that Defendant Burger deployed his Taser in dart mode. Thus, pursuant to Bryan, Defendant Burger employed an “intermediate, significant level of force that must be justified by the governmental interest involved.” Bryan, 630 F.3d at 825-26. In order to determine whether this level of force was objectively reasonable, the Court must consider (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight. Id. at 826 (citing Graham, 490 U.S. at 396, 109 S.Ct. 1865). An to the severity of the crime at issue, Defendants acknowledge that this factor does not weigh in favor of the use of force, given that Plaintiff was contacted for purposes of community policing and was not suspected of any crime. Defs.’ Mot. for Summary Judgment at 12. At most, Plaintiff was suspected of being under the influence of a controlled substance, a misdemeanor. Given the relatively minor and non-violent nature of this crime, this factor weighs against of the use of significant, intermediate-level force. See Bryan, 630 F.3d at 829 (reasoning that factor weighs in favor of plaintiff where crime was a misdemeanor that is not inherently dangerous or violent); Hammer v. Gross, 932 F.2d 842, 846 (9th Cir.1991) (indicating that offense of drunk driving “while certainly not to be taken lightly, was a misdemeanor” and therefore would weigh in favor of plaintiff). The second factor and third factors, regarding the safety threat posed and resistance/evasion of arrest, hinge on issues of genuine factual dispute and cannot be definitely resolved on summary judgment. Defendants argue that Plaintiff posed a safety threat from the time that he retreated into his van, where he could have had a weapon accessible. However, in the recordings submitted by Defendants, while Plaintiff appears angry and agitated after he first emerges from the van in response to Temores’ ruse, see Burger MAV recording, Sherman Decl. Ex. 15 at 10:09:50-10:45 (recording of Plaintiff swearing and angrily asking why he is being harassed), once he retreats back into the van, Plaintiff appears relatively calm and somewhat cooperative. On the recording made by Burger’s Taser camera, Plaintiff can be seen sitting in the van, making a call on his cell phone in his right hand and holding his left hand in his lap. Sherman Decl. Ex. 12B at 0:00-02. When one of the Defendants states “I’m gonna Tase you,” Plaintiff calmly states that he is calling his lawyer. Id. Seconds later, when one of the Defendants says, “let me see your hands,” Plaintiff raises his left hand and also slightly opens the palm of his right hand to show that he is holding only his cell phone to his ear. Id. at 0:03-10. He remains seated in the van with his right hand holding the cell phone to his ear and his left hand in the air until he begins to exit the vehicle, of his own accord, several seconds later. Id. On his way out of the van, Plaintiff picks up a two-liter soda bottle on the ground and appears to set it upright. Id. at 0:18-21. At that point, Burger appears to forcibly pull Plaintiff away from the car and push him across the sidewalk and up against the residential fence. Te-mores MAV recording, Sherman Decl. Ex. 14 at 10:10:20-26. Based on these facts, the question of whether Plaintiffs actions and the presence of the plastic soda bottle gave rise to a reasonable concern for officer safety is matter of genuine factual dispute. Moreover, it is not clear, based on the evidence presented, whether Plaintiff had actively resisted the officers prior to being Tased. At the preliminary examination in the criminal case, Defendant Temores testified that up to the point when Defendant Burger deployed his Taser, Plaintiff had not attempted to strike any of the officers or threatened to use physical force against them. Sherman Decl. Ex. 4 at 105:28-106:14. Similarly, based on the MAV recording from Defendant Temores’ patrol car, it does not appear that Plaintiff attempted to use physical force against any of the Defendants until Burger either shot him with Taser or at least had the Taser pointed directly at him after pushing him against the residential fence. See Sherman Decl. Ex. 14 at 10:10:20-30. Accordingly, the extent to which Plaintiff posed an immediate safety threat and was actively resisting or evading arrest is the subject of a material, factual dispute. Drawing all inferences in light of Plaintiff, however, a reasonable jury could find that the threat and resistance posed by Plaintiff was slight in comparison to the significant, intermediate level of force employed by Defendant Burger. Based on this analysis, the Court finds that there is a genuine issue of material fact as to whether Defendant Burger, supported by Defendants Te-mores and Wagner, used objectively unreasonable force by deploying his Taser against Plaintiff in dart mode. The Court agrees with Defendants, however, that they are entitled to qualified immunity on the excessive force claim. It is only recently that the Ninth Circuit has definitively determined the level of force associated with Tasers deployed in dart mode. See Bryan, 630 F.3d at 833 (describing “dearth of prior authority” on the use of tasers); Mattos v. Agarano, 590 F.3d 1082, 1089-90 (9th Cir.2010) (describ ing absence of case law finding taser use unconstitutional); Brooks, 599 F.3d at 1031 n. 18 (describing shortage of cases regarding use of tasers in drive-stun mode). For this reason, in its recent Taser decisions, the Ninth Circuit has uniformly found that the law surrounding tasers was not clearly established and concluded that the officers were entitled to qualified immunity. See Bryan, 630 F.3d at 833; Mattos, 590 F.3d 1082, 1089-90 (9th Cir.2010); Brooks, 599 F.3d at 1031 n. 18. However, these cases involved conduct that occurred between 2004 and 2006, whereas here the conduct occurred on March 15, 2008. In making a qualified immunity determination, the court must “consider the state of the law at the time of the alleged violation.” Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir.2007). In determining whether the law was clearly established at any given time, courts within the Ninth Circuit look first to the decisional authority of the Supreme Cour