Rochelle Scott v. Kyle Smith

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROCHELLE SCOTT, individually, No. 23-15480

and as co-special administrator of the

estate of ROY ANTHONY SCOTT; D.C. No.

FREDRICK WAID, as co-special 2:20-cv-01872-

administrator of the estate of ROY RFB-EJY

ANTHONY SCOTT,

Plaintiffs-Appellees, OPINION

v.

KYLE SMITH; THEODORE

HUNTSMAN; LAS VEGAS

METROPOLITAN POLICE

DEPARTMENT,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Nevada

Richard F. Boulware II, District Judge, Presiding

Argued and Submitted May 13, 2024

Phoenix, Arizona

Filed July 30, 2024

2 SCOTT V. SMITH

Before: Roopali H. Desai and Ana de Alba, Circuit Judges,

and Philip S. Gutierrez, * District Judge.

Opinion by Judge Desai

SUMMARY **

Qualified Immunity / Excessive Force

The panel affirmed the district court’s denial of qualified

immunity to Las Vegas Metropolitan Police Department

officers on a Fourth Amendment claim for violation of the

right to be free from excessive force, and reversed the district

court’s denial of qualified immunity on a Fourteenth

Amendment claim for violation of the right to familial

association.

Roy Scott, who was unarmed and in mental distress,

called the police for help. Officers used force to restrain

him, although he complied with officers’ orders and was not

suspected of a crime, and shortly after lost consciousness and

was later pronounced dead. Scott’s daughter Rochelle and a

representative of Scott’s estate sued the Department and two

officers.

The panel affirmed the district court’s denial of qualified

immunity on plaintiffs’ Fourth Amendment claim. Viewing

*

The Honorable Philip S. Gutierrez, United States District Judge for the

Central District of California, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

SCOTT V. SMITH 3

the facts in the light most favorable to plaintiffs, the officers

violated Scott’s Fourth Amendment right to be free from

excessive force. Because Scott was mentally ill, was not

suspected of a crime, and did not present a risk to officers or

others, the government’s interest in applying force was

limited. A reasonable jury could find that the officers’ use

of severe or deadly force was constitutionally

excessive. The panel further held that Scott’s Fourth

Amendment rights were clearly established at the time of the

violation. Drummond ex rel. v. Drummond v. City of

Anaheim, 343 F.3d 1052 (9th Cir. 2003), clearly established

that the officers’ use of force was constitutionally excessive.

The panel reversed the district court’s denial of qualified

immunity on Rochelle’s Fourteenth Amendment

claim. Viewing the facts in the light most favorable to

plaintiffs, the officers violated Rochelle’s right to familial

association. However, because that right was not clearly

established at the time of the officers’ conduct, the officers

were entitled to qualified immunity.

COUNSEL

Peter Goldstein (argued), Law Offices of Peter Goldstein,

Las Vegas, Nevada, for Plaintiffs-Appellees.

Craig R. Anderson (argued), Marquis Aurbach Coffing, Las

Vegas, Nevada, for Defendants-Appellants.

4 SCOTT V. SMITH

OPINION

DESAI, Circuit Judge:

Early in the morning on March 3, 2019, Roy Scott called

the police for help. But he did not get it. Las Vegas

Metropolitan Police Department Officers Kyle Smith and

Theodore Huntsman came to the scene. Scott was unarmed

and in mental distress. Though he complied with the

officers’ orders and was not suspected of a crime, Smith and

Huntsman initiated physical contact, forced Scott to the

ground, and used bodyweight force to restrain him. Shortly

after, Scott lost consciousness and he was later pronounced

dead. Scott’s daughter and a representative of Scott’s estate

sued the officers and the Department for violating their

constitutional rights, including the Fourth Amendment right

to be free from excessive force and the Fourteenth

Amendment right to familial association.

Officers Smith and Huntsman appeal the district court’s

order denying summary judgment on the basis of qualified

immunity. We hold that, construing the facts in the light

most favorable to Plaintiffs, Smith and Huntsman violated

Scott’s Fourth Amendment rights. Because the applicable

law was clearly established at the time of the incident, we

affirm the denial of qualified immunity for Plaintiffs’ Fourth

Amendment claim. As to Rochelle Scott’s Fourteenth

Amendment claim, we hold that Officers Smith and

Huntsman violated Rochelle Scott’s Fourteenth Amendment

right to familial association, but that right was not yet

“clearly established” at the time of the violation. We thus

affirm in part and reverse and remand in part.

SCOTT V. SMITH 5

BACKGROUND

Early in the morning on March 3, 2019, Roy Scott called

911. 1 He reported multiple assailants outside his apartment

with a saw. Las Vegas Metropolitan Police Department

Officers Smith and Huntsman were assigned to the call.

Dispatch notified the officers that Scott was mentally ill.

Scott was distressed and hallucinating when Officers

Smith and Huntsman arrived at his apartment. After Smith

and Huntsman knocked and identified themselves, Scott

yelled to the officers to “break the door down” claiming that

there were people inside his house. The officers did not

break the door in because they did not hear anyone inside the

apartment. Instead, they continued to knock and order Scott

to come to the door. About two minutes after first knocking

on the door, Smith told Huntsman, “this is a 421A for sure,”

using the department code to indicate he believed Scott was

mentally ill. Huntsman then called through the door: “Sir,

have you been diagnosed with any mental diseases?” After

Scott did not come to the door, Smith asked dispatch to call

Scott back to ask him to come to the door, noting again that

Scott appeared to be mentally ill. Smith then said to

Huntsman: “I ain’t going in there. That’s too sketchy.”

Huntsman agreed, “That dude’s wacky.” Peering into Scott’s

window, Huntsman asked Smith if he could see the “crazed

look in [Scott’s] eye.” They could not see anyone else in

Scott’s apartment.

When Scott did not open the door, Smith called their

sergeant, turning off his body worn camera. On Huntsman’s

1

This is an interlocutory appeal challenging the denial of qualified

immunity. As we recount the facts here, we thus resolve all disputed

factual issues in Plaintiffs’ favor. See Est. of Anderson v. Marsh, 985

F.3d 726, 731 (9th Cir. 2021).

6 SCOTT V. SMITH

camera, Smith can be heard telling their sergeant that Scott

sounds mentally ill. After ending the call, Smith told

Huntsman that their sergeant said that “at the end of the day

we can’t do anything if we don’t hear any reason to have an

exigent circumstance.” Smith also explained that their

Sergeant suggested they try again to get Scott to come to the

door. Smith resumed knocking and ordered Scott to come to

the door. Seconds later, and about seven minutes after Smith

and Huntsman arrived on the scene, Scott opened the door.

As Scott opened the door, Smith retreated down the stairs

in front of Scott’s apartment. Scott held a metal pipe at his

side as he descended the stairs. He immediately dropped the

pipe when officers asked him to do so. Disoriented, Scott

asked the officers twice: “What am I supposed to do?” Smith

and Huntsman directed him to stand near a wall at the base

of the stairs, and Scott immediately complied. When

Huntsman asked Scott if he had any other weapons, Scott

produced a knife from his front pocket and said, “I am

sorry.” He handed the knife to Huntsman handle-side out and

did not make any threatening gestures.

Smith and Huntsman ordered Scott to face the wall,

shining a flashlight at him. Scott told them that the light

bothered him and that he had paranoid schizophrenia. He

asked twice: “Can you just put me in the car please?” When

asked about the weapons he had relinquished, Scott

explained, “I think people are after me.” Smith again

directed Scott to face the wall, and Scott replied, “I’m

paranoid, I can’t turn around.” Smith told Scott, “You’re

fine. We are out here to help you.” Scott repeatedly

responded, “I’m not fine.” Although they did not discuss it,

officers allege they recognized Scott was in “some sort of

distress” and concluded he met the qualifications for a

medical hold for his mental health and safety.

SCOTT V. SMITH 7

Smith and Huntsman approached Scott and grabbed his

arms. Scott repeatedly pleaded “please” and “what are you

doing” in a distressed voice, while Smith and Huntsman

pulled him to the ground. At first, the officers held Scott’s

arms at his sides while he was lying on his back. In this

position, Scott screamed, struggled, and pled with the

officers to leave him alone for over two minutes. The

officers then eventually rolled Scott onto his stomach,

repeatedly ordering Scott to “stop.” With Scott on his

stomach and with his hands restrained behind his back,

Huntsman put his bodyweight on Scott’s back and neck for

about one to two minutes. At the same time Smith put his

weight on Scott’s legs, restraining his lower body. Scott’s

pleas turned increasingly incoherent and breathless as

Huntsman applied his bodyweight.

After handcuffing him, the officers attempted to roll

Scott on his side, as he continued to incoherently cry out that

he wanted to be left alone. When they rolled Scott over, his

face was bloody from contact with the ground. Scott stopped

yelling and thrashing around after a few minutes. Scott did

not respond when Smith and Huntsman tried to wake or

revive him. Shortly after, when the paramedics arrived, Scott

was still unresponsive. Scott was pronounced dead after

paramedics removed him from the scene. Plaintiffs’ expert

found that Scott had died from restraint asphyxia.

Rochelle Scott (Scott’s daughter and co-special

administrator of his estate) and Fredrick Waid (co-special

administrator of Scott’s estate) sued Officer Smith, Officer

Huntsman, and the Department. They alleged claims under

42 U.S.C. § 1983 for violation of Scott’s Fourth Amendment

right to be free from excessive force and Rochelle Scott’s

Fourteenth Amendment right to familial association, among

other claims. Defendants Smith and Huntsman moved for

8 SCOTT V. SMITH

summary judgment, arguing in part that no constitutional

violation occurred and that they were entitled to qualified

immunity.

The district court granted in part and denied in part

Defendants’ motion for summary judgment. Relevant here,

the district court denied qualified immunity to Smith and

Huntsman on Plaintiffs’ Fourth Amendment claim and on

Rochelle Scott’s Fourteenth Amendment claim. Smith and

Huntsman timely appealed.

JURISDICTION

As a threshold matter, we address our jurisdiction to hear

this interlocutory appeal. A denial of summary judgment is

not ordinarily appealable because it is not a “final decision.”

See 28 U.S.C. § 1291; Ballou v. McElvain, 29 F.4th 413, 421

(9th Cir. 2022). But we may “review orders denying

qualified immunity under the collateral order exception to

finality.” Ballou, 29 F.4th at 421. The scope of our

jurisdiction is “circumscribed.” George v. Morris, 736 F.3d

829, 834 (9th Cir. 2013). We cannot consider “a fact-related

dispute” over whether the evidence is “sufficient to show a

genuine issue of fact for trial.” Est. of Anderson, 985 F.3d at

731 (quoting Foster v. City of Indio, 908 F.3d 1204, 1210

(9th Cir. 2018)). But we may decide “whether the defendant

would be entitled to qualified immunity as a matter of law,

assuming all factual disputes are resolved, and all reasonable

inferences are drawn, in plaintiff’s favor.” George, 736 F.3d

at 836 (quoting Karl v. City of Mountlake Terrace, 678 F.3d

1062, 1068 (9th Cir. 2012)) (cleaned up). In other words, we

have jurisdiction when defendants are not asking us “to re-

decide the facts, but rather, to reapply the law.” Moran v.

Washington, 147 F.3d 839, 844 (9th Cir. 1998).

SCOTT V. SMITH 9

Smith and Huntsman devote much of their briefing to

their version of events that Scott disputes. But here, the

district court denied the officers’ request for qualified

immunity because the record presents multiple genuine

issues of fact. Those include whether Scott tried to reach for

his jacket pocket before falling to the ground, whether Scott

voluntarily fell to the ground or was forced to the ground in

a takedown maneuver, how long Scott was in a facedown

position on the ground, how long Officer Huntsman had his

knee on Scott’s back and neck, the timing of Scott’s

handcuffing, and the cause of Scott’s death. We must accept

these findings unless Plaintiffs’ “version of events is

‘blatantly contradicted by the record.’” Orn v. City of

Tacoma, 949 F.3d 1167, 1171 (9th Cir. 2020) (quoting Scott

v. Harris, 550 U.S. 372, 380 (2007)). In short, we cannot

credit Defendants’ version of the facts or “assume that a jury

would resolve factual disputes in [their] favor.” Id. Thus,

though we lack jurisdiction to redecide factual disputes, we

can evaluate whether, assuming each dispute is resolved in

favor of Plaintiffs, Defendants are entitled to qualified

immunity. Construing the facts in favor of Plaintiffs, we hold

that Officers Smith and Huntsman are not entitled to

qualified immunity for Plaintiffs’ Fourth Amendment claim.

We find Smith and Huntsman are entitled to qualified

immunity for Rochelle Scott’s Fourteenth Amendment

claim.

STANDARD OF REVIEW

We review the grant or denial of summary judgment on

the ground of qualified immunity de novo. Ballou, 29 F.4th

at 421. “Because the reasonableness standard ‘nearly always

requires a jury to sift through disputed factual contentions . .

. summary judgment . . . in excessive force cases should be

granted sparingly.’” Torres v. City of Madera, 648 F.3d

10 SCOTT V. SMITH

1119, 1125 (9th Cir. 2011) (quoting Santos v. Gates, 287

F.3d 846, 853 (9th Cir. 2002)).

DISCUSSION

To determine whether Smith and Huntsman are entitled

to qualified immunity, we ask two questions. First, viewing

the facts in the light most favorable to Plaintiffs, did Smith

and Huntsman violate a constitutional right? Rice v.

Morehouse, 989 F.3d 1112, 1120 (9th Cir. 2021). And

second, if a constitutional right was violated, was it a clearly

established right? Id. Plaintiffs assert that Smith and

Huntsman violated both their Fourth and Fourteenth

Amendment rights. For each claim, we answer these

questions in turn.

I. Fourth Amendment Claim

A. Smith and Huntsman violated Scott’s Fourth

Amendment rights.

“Under the Fourth Amendment, police may use only

such force as is objectively reasonable under the

circumstances.” LaLonde v. County of Riverside, 204 F.3d

947, 959 (9th Cir. 2000). To assess the objective

reasonableness of an officer’s actions, “we consider: (1) the

severity of the intrusion on the individual’s Fourth

Amendment rights by evaluating the type and amount of

force inflicted, (2) the government’s interest in the use of

force, and (3) the balance between the gravity of the

intrusion on the individual and the government’s need for

that intrusion.” Rice, 989 F.3d at 1121 (quoting Lowry v. City

of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017) (en banc))

(cleaned up). We must consider the totality of the

circumstances “from the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of hindsight.”

SCOTT V. SMITH 11

Graham v. Connor, 490 U.S. 386, 396 (1989). After

weighing the totality of the circumstances, we find that

Officers Smith and Huntsman violated Scott’s Fourth

Amendment rights.

i. The type and amount of force used.

First, we hold that Smith and Huntsman used deadly

force. To classify the force used, we consider the specific

circumstances of the case. Rice, 989 F.3d at 1121. “Both the

nature and degree of physical contact and the risk of harm

and the actual harm experienced are relevant.” Seidner v. de

Vries, 39 F.4th 591, 597 (9th Cir. 2022) (quoting Williamson

v. City of National City, 23 F.4th 1146, 1152 (9th Cir. 2022)

(cleaned up). Deadly force is force that “creates a substantial

risk of causing death or serious bodily injury.” Smith v. City

of Hemet, 394 F.3d 689, 706 (9th Cir. 2005).

Huntsman used bodyweight compression on Scott’s

back and neck during and shortly after handcuffing him.

While Smith restrained Scott’s lower body, Huntsman kept

his bodyweight on Scott’s back and neck for about one to

two minutes while Scott’s pleas turned increasingly

incoherent and breathless. Shortly after, Scott lost

consciousness. He was declared dead after paramedics

removed him from the scene. This was severe, deadly force.

Our precedent establishes that the use of bodyweight

compression on a prone individual can cause compression

asphyxia. Drummond ex rel. Drummond v. City of Anaheim,

343 F.3d 1052, 1056–57 (9th Cir. 2003). In Drummond, for

example, officers “press[ed] their weight on [the plaintiff’s]

neck and torso as he lay handcuffed on the ground.” Id. at

1056. This force was “severe and, under the circumstances,

capable of causing death or serious injury.” Id. Drawing all

12 SCOTT V. SMITH

reasonable inferences in Plaintiffs’ favor, a jury could find

Smith and Huntsman’s conduct was similar deadly force. 2

ii. The government’s interest in the use of force.

We next evaluate the government’s interests by

considering the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers

or others, and whether a suspect is actively resisting arrest or

attempting to escape. Espinosa v. City and County of San

Francisco, 598 F.3d 528, 537 (9th Cir. 2010). “These factors

are non-exhaustive, and we examine the totality of the

circumstances, including the availability of less intrusive

alternatives to the force employed and whether proper

warnings were given.” Rice, 989 F.3d at 1121–22 (citations

omitted). The “most important” factor is whether the suspect

posed an immediate threat. Id. at 1121 (quoting Isaveya v.

Sacramento Sheriff’s Dep’t, 872 F.3d 938, 947 (9th Cir.

2017)). “However, a simple statement by an officer that he

fears for his safety or the safety of others is not enough; there

must be objective factors to justify such a concern.” Deorle

v. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001).

When weighing these factors, we also take a detainee’s

mental illness into account. Drummond, 343 F.3d at 1058.

“The problems posed by, and thus the tactics to be employed

against, an unarmed, emotionally distraught individual who

is creating a disturbance or resisting arrest are ordinarily

different from those involved in law enforcement efforts to

subdue an armed and dangerous criminal who has recently

2

This comparison is further bolstered by the fact that Drummond used a

stricter test than the one we apply today. After Drummond, we relaxed

our definition of deadly force to encompass force that creates a

substantial risk of serious bodily injury, rather than only a substantial

risk of death. See Smith, 394 F.3d at 705–06.

SCOTT V. SMITH 13

committed a serious offense.” Id. (quoting Deorle, 272 F.3d

at 1282–83). Even if “an emotionally disturbed individual is

‘acting out’ and inviting officers to use deadly force to

subdue him,” the government interest in using such force is

limited “by the fact that the officers are confronted, not with

a person who has committed a serious crime against others,

but with a mentally ill individual.” Id. (quoting Deorle, 272

F.3d at 1283). Thus, although there is no per se rule

establishing different classifications of suspects, we have

recognized that counseling, where feasible, “may provide

the best means of ending a crisis.” Id. (quoting Deorle, 272

F.3d at 1283).

Here, the City’s interests were limited. First, Smith and

Huntsman did not suspect Scott of a crime. Indeed, Scott

called 911 because he feared he was a victim of a crime. And

officers quickly acknowledged at the scene that he appeared

to be suffering from mental illness.

Second, viewing the facts in the light most favorable to

Plaintiffs, Scott did not pose a danger to the officers or

others. Huntsman and Smith did not receive any warning that

Scott was dangerous or that he had threatened himself or

others. When Smith and Huntsman arrived on the scene,

Scott was alone in his apartment, and did not threaten

officers when speaking through the closed door. Nor did he

threaten his own life. After officers persuaded Scott to exit

his apartment, he still did not threaten officers or himself.

Scott stood against a wall as ordered and made no sudden or

threatening gestures toward the officers.

Defendants argue that Scott posed a threat because he

had two weapons—a pipe and a knife. But at the scene, Scott

immediately relinquished both objects when directed to do

so, handing the knife to the officers with the handle out. He

14 SCOTT V. SMITH

explained openly that he was mentally ill and paranoid and

asked the officers to put him into their patrol car. Taking the

facts in the light most favorable to Scott, a jury could find he

posed no threat to the officers. See Smith, 394 F.3d at 702

(holding that, though the plaintiff was not completely

compliant, “considering the evidence in the light most

favorable to him, a rational jury could very well find that he

did not, at any time, pose a danger to the officers or others”).

Third, whether Scott was “actively resisting arrest” is

more complicated. Scott asked Smith and Huntsman not to

touch him, and screamed and tried to pull away from the

officers after they pulled him to the ground. But degree

matters. Scott did not attack the officers or anyone else, nor

did he threaten to do so. Instead, he stood where officers

directed him to stand and made no threatening movements.

See id., 394 F.3d at 703 (finding it significant that the suspect

did not attack or threaten officers although he “ignored the

officers’ requests to remove his hands from his pajamas and

to place them on his head”).

Finally, construing the facts in favor of Plaintiffs, Smith

and Huntsman ignored less intrusive alternatives to the force

they employed. Plaintiffs’ expert opined that Smith and

Huntsman had alternatives to bodyweight force. They could

have used verbal de-escalation strategies, waited for the

support of additional officers to execute a safer “team

takedown,” or waited for EMS to execute a “soft restraint.”

Smith and Huntsman employed none of these alternatives.

See Rice, 989 F.3d at 1124 (“Although officers ‘need not

avail themselves of the least intrusive means of responding

to an exigent situation,’ their failure to consider ‘clear,

reasonable and less intrusive alternatives’ to the force

employed ‘militates against finding the use of force

SCOTT V. SMITH 15

reasonable.’” (quoting Glenn v. Washington County, 673

F.3d 864, 876 (9th Cir. 2011))).

In sum, because Scott was mentally ill, was not

suspected of a crime, and did not present a risk to officers or

others, the government’s interest in applying force was

limited.

iii. The balance of interests.

Finally, we must balance the force used against the need

for such force to determine whether the force used was

“greater than is reasonable under the circumstances.”

Espinosa, 598 F.3d at 537 (quoting Santos, 287 F.3d at 854).

Generally, deadly force is not permissible “unless it is

necessary to prevent escape and the officer has probable

cause to believe that the suspect poses a significant threat of

death or serious physical injury to the officer or others.”

Smith, 394 F.3d at 704 (quoting Tennessee v. Garner, 471

U.S. 1, 3 (1985)). But even non-deadly force must not to be

deployed lightly. Drummond, 343 F.3d at 1057. Force “is

permissible only when a strong government interest

compels” the degree of force used. Id. (quoting Deorle, 272

F.3d at 1280).

We hold that Smith and Huntsman were not justified in

using deadly force against Scott, a mentally ill person who

was not suspected of committing a crime and presented little

or no danger. See Garner, 471 U.S. at 8, 11 (“Where the

suspect poses no immediate threat to the officer and no threat

to others, the harm resulting from failing to apprehend him

does not justify the use of deadly force to do so.”). Indeed,

there are genuine issues of fact regarding whether any force

was necessary. See, e.g., Young v. County of Los Angeles,

655 F.3d 1156, 1166 (9th Cir. 2011) (officer was not

justified in use of “significant force” against a nonviolent

16 SCOTT V. SMITH

individual suspected of a misdemeanor). The balance of

interests here is similar to Drummond, where officers also

used significant or deadly force on a mentally ill individual

to detain him for a mental health hold. Drummond, 343 F.3d

at 1059. Like Drummond, an officer pressed his “weight

against [Scott’s] torso and neck, crushing him against the

ground.” Id. And despite his pleas, and a lack of any apparent

danger, they continued to detain him. Id. at 1059–60. There,

as here, “grievous injury does not serve [the] objective” of

taking an individual into “custody to prevent injury to

himself” when he is not suspected of any crime. Id. at 1059.

Viewing the facts in the light most favorable to Plaintiffs, a

reasonable jury could thus find that the officers’ use of

severe or deadly force was constitutionally excessive.

B. Scott’s Fourth Amendment rights were clearly

established at the time of the violation.

Because we hold that Smith and Huntsman’s actions,

taken in the light most favorable to Plaintiffs, establish a

constitutional violation, we must next consider whether the

law was clearly established, so that a reasonable officer

would know the officers’ conduct was unconstitutional.

“Conduct violates a clearly established right if the

unlawfulness of the action in question is apparent in light of

some pre-existing law.” Ballou, 29 F.4th at 421 (quoting

Benavidez v. County of San Diego, 993 F.3d 1134, 1151–52

(9th Cir. 2021) (cleaned up). There need not be a case

“directly on point,” but “the constitutional question must be

‘beyond debate.’” Ohlson v. Brady, 9 F.4th 1156, 1166–67

(9th Cir. 2021) (quoting Kramer v. Cullinan, 878 F.3d 1156,

1163 (9th Cir. 2018)).

Our caselaw makes clear that any reasonable officer

should have known that bodyweight force on the back of a

SCOTT V. SMITH 17

prone, unarmed person who is not suspected of a crime is

constitutionally excessive. Long before Scott’s death, we

clearly established that it is unconstitutional to use

bodyweight force on the back and neck of a prone and

unarmed individual. See Drummond, 343 F.3d at 1059. The

law is especially clear where, as here, the officers know the

prone individual is suffering from a mental illness and is not

suspected of a crime. Id. In Drummond, officers “pressed

their weight against [an individual’s] torso and neck,

crushing him against the ground.” Id. They “maintained that

pressure for a significant period of time” while the suspect

was prone, handcuffed, “offered no resistance,” and

“repeatedly told the officers that he could not breathe and

that they were choking him.” Id. at 1054, 1063. We found

that “[v]iewing the evidence in the light most favorable to

[the plaintiff], . . . the officers had ‘fair warning’ that the

force they used was constitutionally excessive even absent a

Ninth Circuit case presenting the same set of facts.” Id. at

1061. Indeed, we needed “no federal case directly on point

to establish that kneeling on the back and neck of a compliant

detainee, and pressing the weight of two officers’ bodies on

him even after he complained that he was choking and in

need of air violates clearly established law.” Id. at 1062.

The similarities between this case and Drummond are

striking. Scott was not suspected of a crime. Instead, he was

taken into custody because of his mental health. Though they

were presented with an individual experiencing a mental

health crisis and presenting no obvious danger to others,

Smith and Huntsman crushed Scott’s back and neck to

subdue him while handcuffing him. Scott also cried out with

increasing distress and incoherence as the officers’ force

escalated. Reasonable officers would have known that their

18 SCOTT V. SMITH

force was not reasonable and that it created a serious risk of

asphyxiating Scott.

Defendants argue that Drummond does not control

because it clearly established that the use of bodyweight

force was excessive only on a prone and already handcuffed

individual. But construing the events in Scott’s favor,

officers used their bodyweight on Scott while he was

restrained with his hands behind his back, which is the

functional equivalent of being handcuffed. And more

critically, the officers received fair notice that their force was

constitutionally excessive despite the timing of the

handcuffing. Drummond addressed a handcuffed suspect,

but as explained above, it also opined more generally about

the use of bodyweight force on a prone individual. See

Drummond, 343 F.3d at 1061–62. Indeed, Drummond also

addressed a mentally ill and distressed individual who was

not suspected of any crime and was being taken into custody

only for his own safety. Id.

Moreover, as Drummond itself demonstrates, a decision

with identical facts is not required to clearly establish that it

is unreasonable to use deadly force when the force is totally

unnecessary to protect officers, the public, or the suspect

himself. See Hope v. Pelzer, 536 U.S. 730, 740 (2002)

(There can be “notable factual distinctions between the

precedents relied on . . . so long as the prior decisions g[i]ve

reasonable warning that the conduct then at issue violated

constitutional rights.” (quoting United States v. Lanier, 520

U.S. 259, 269 (1997))). Though officers must be fairly on

notice that their conduct was unconstitutional, defining the

“right allegedly violated” in too much detail allows

“officials, and future defendants, to define away all potential

claims.” See LSO, Ltd. v. Stroh, 205 F.3d 1146, 1158 (9th

Cir. 2000) (quoting Kelley v. Borg, 60 F.3d 664, 667 (9th

SCOTT V. SMITH 19

Cir. 1995)) (cleaned up). We have thus repeatedly applied

Drummond as clearly established law despite some variation

in the force presented. See, e.g., Zelaya v. Las Vegas Metro.

Police Dep’t, 682 F. App’x 565, 567 (9th Cir. 2017) (mem.)

(holding that although officers used bodyweight force for a

period shorter than the officers in Drummond, Drummond

controlled because there was a material issue of fact

regarding whether the force was used for a “significant”

period); Tucker v. Las Vegas Metro. Police Dep’t, 470 F.

App’x 627, 629 (9th Cir. 2012) (mem.) (holding that

although, unlike Drummond, the suspect resisted,

Drummond still controlled because of the similar use of

bodyweight force). 3 We do the same here. Drummond

clearly established that the officers’ use of force was

constitutionally excessive.

II. Fourteenth Amendment Claim

Rochelle Scott alleges that Smith and Huntsman’s use of

force also violated her Fourteenth Amendment substantive

due process rights. We hold that Smith and Huntsman

violated Rochelle Scott’s constitutional right to familial

association, but because that right was not clearly

established, Smith and Huntsman are entitled to qualified

immunity.

3

Our court’s recent decision in Perez v. City of Fresno, 98 F.4th 919 (9th

Cir. 2024), does not change this analysis. There, we found the officers

were entitled to qualified immunity because they were acting at the

direction of a paramedic when they applied their bodyweight. Id. at 926

(“Given the specific context of this case, we cannot conclude that

Drummond put the officers on fair notice that their actions—pressing on

a backboard on top of a prone individual being restrained for medical

transport, at the direction of a paramedic working to provide medical

care—was unlawful.” (emphasis in original)). Smith and Huntsman did

not rely on an equivalent intervening decisionmaker here.

20 SCOTT V. SMITH

A. Smith and Huntsman violated Rochelle Scott’s

Fourteenth Amendment rights.

Parents and children have a substantive due process right

to a familial relationship free from unwarranted state

interference. Hardwick v. County of Orange, 980 F.3d 733,

740–41 & n.9 (9th Cir. 2020). To show a violation of the

right to familial association under the Fourteenth

Amendment based on an officer’s use of force, a plaintiff

must establish that an officer’s conduct “shocks the

conscience.” Nicholson v. City of Los Angeles, 935 F.3d 685,

692 (9th Cir. 2019) (quoting Wilkinson v. Torres, 610 F.3d

546, 554 (9th Cir. 2010)).

Two tests govern whether an officer’s conduct “shocks

the conscience.” Ochoa v. City of Mesa, 26 F.4th 1050, 1056

(9th Cir. 2022). “Which test applies turns on whether the

officers had time to deliberate their conduct.” Id. The

“deliberate-indifference test” applies when a situation

“evolve[s] in a time frame that permits the officer to

deliberate before acting.” Porter v. Osborn, 546 F.3d 1131,

1137 (9th Cir. 2008). The more demanding “purpose-to-

harm test” applies when a situation “‘escalate[s] so quickly

that the officer must make a snap judgment.” Id.

To decide which test to apply, we must thus ask whether

actual deliberation by the officer was “practical.” Porter,

546 F.3d at 1137 (quoting Moreland v. Las Vegas Metro.

Police Dep’t, 159 F.3d 365, 372 (9th Cir. 1998), as amended

(Nov. 24, 1998)). But we have recognized that deliberation

may be practical even without an extended timeline of

events. In Nicholson, for example, an officer had time to

deliberate when, after seeing a teenager with a toy gun, he

jumped out of a car and fired several shots. 935 F.3d at 693–

94. The officer’s “immediate use of force without

SCOTT V. SMITH 21

communicating with his partner, his failure to seek cover,

and his failure to formulate a plan before acting were”

sufficient to create a genuine dispute of fact on whether

deliberation was practical. Id. at 693. The court thus applied

the deliberate indifference test. Id.; cf. Wilkinson, 610 F.3d

at 554 (distinguishing exigent circumstances by applying the

purpose-to-harm standard where “[w]ithin a matter of

seconds, the situation evolved from a car chase to a situation

involving an accelerating vehicle in dangerously close

proximity to officers on foot”).

We hold that, viewing the facts in the light most

favorable to Plaintiff, Smith and Huntsman had time to

deliberate. In other words, the encounter was not escalating,

and officers had time to consider their next steps. Over seven

minutes passed after officers arrived on the scene before they

had any physical contact with Scott. Indeed, the officers

called their sergeant to ask for guidance before continuing

the encounter. And once Scott exited his apartment, he

moved slowly, complied with officers’ orders, and openly

explained that he was suffering from mental illness. These

circumstances gave the officers ample time to consider their

conduct before acting, and the deliberate indifference

standard applies.

Applying the deliberate indifference standard, Smith and

Huntsman violated Rochelle Scott’s Fourteenth Amendment

rights. An officer acts with deliberate indifference by

disregarding a known or obvious consequence of their

actions. Nicholson, 935 F.3d at 693. This “entails something

more than negligence but is satisfied by something less than

acts or omissions for the very purpose of causing harm or

with knowledge that harm will result.” Tatum v. Moody, 768

F.3d 806, 821 (9th Cir. 2014) (quoting Gantt v. City of Los

Angeles, 717 F.3d 702, 708 (9th Cir. 2013)). In Nicholson,

22 SCOTT V. SMITH

for example, an officer observed a teenager among a group

of students in uniforms and with backpacks who appeared to

be holding a gun pointed at the ground. 935 F.3d at 693. We

held that, because the suspect “was not engaged in any

threatening . . . behavior,” and was surrounded by other

minors, the officer acted with deliberate indifference when

he rushed toward the teens and fired his weapon at them as

he ran. Id.

Taking the facts in the light most favorable to Plaintiff,

Smith and Huntsman were deliberately indifferent to the risk

that their use of force could seriously injure or kill Scott.

Scott presented no immediate risk to the officers before they

initiated deadly force. And when officers took Scott to the

ground, he cried out in distress over the course of the

encounter. After Huntsman put his bodyweight on Scott,

Scott’s cries were also increasingly muffled and incoherent.

A jury could find the use of bodyweight force given these

circumstances was deliberate indifference. Cf. Farmer v.

Brennan, 511 U.S. 825, 842 (1994) (finding when evaluating

deliberate indifference in an Eighth Amendment claim that

whether an “official had the requisite knowledge of a

substantial risk is a question of fact subject to demonstration

in the usual ways, . . . and a factfinder may conclude that

[the] official knew of a substantial risk from the very fact

that the risk was obvious”). 4 Thus, construing all facts and

resolving all disputes in Rochelle Scott’s favor, Smith and

Huntsman violated her Fourteenth Amendment rights.

4

Defendants appear to acknowledge as much, arguing that they did not

engage in “conscience shocking” behavior only by applying the purpose-

to-harm standard.

SCOTT V. SMITH 23

B. Rochelle Scott’s Fourteenth Amendment rights

were not clearly established at the time of the

violation.

Even if a constitutional violation occurred, Smith and

Huntsman are nevertheless entitled to qualified immunity

unless the constitutional right was clearly established at the

time of the officers’ conduct. Rice, 989 F.3d at 1120.

Because no analogous case existed at the time of the events

here, we hold that the district court erred by denying

Defendants qualified immunity for this claim.

We have long recognized that a child’s constitutionally

protected interest in the companionship of a parent can be

violated by an officer’s conscience shocking conduct. See

Hayes v. County of San Diego, 736 F.3d 1223, 1229–30 (9th

Cir. 2013). But clearly established law cannot be defined at

such a “high level of generality.” White v. Pauly, 580 U.S.

73, 79 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731,

742 (2011)). Instead, “[f]or a right to be clearly established,

case law must ordinarily have been earlier developed in such

a concrete and factually defined context to make it obvious

to all reasonable government actors, in the defendant’s place,

that what he is doing violates federal law.” Shafer v. County

of Santa Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017). That

is not the case here. Although Plaintiff need not identify a

factual twin, Plaintiff identifies no authority for finding a

Fourteenth Amendment violation here, instead citing only a

general statement of the rule. 5 We have not identified any

5

Although the facts underlying the claims may be the same, “Fourth

Amendment cases . . . do not clearly establish the contours of . . .

Fourteenth Amendment substantive due process rights.” Nicholson, 935

F.3d at 696 & n.5.

24 SCOTT V. SMITH

such authority either. Smith and Huntsman are entitled to

qualified immunity for this claim.

We thus reverse the district court’s summary judgment

denying Officers Smith and Huntsman qualified immunity

because Rochelle Scott’s constitutional right was not clearly

established at the time of the violation. But we now clarify

that right going forward. See supra Section II.A.

CONCLUSION

We affirm the district court’s denial of qualified

immunity to Smith and Huntsman as to the Fourth

Amendment claim and reverse the court’s ruling as to the

Fourteenth Amendment claim. We remand for proceedings

consistent with this opinion.

AFFIRMED in part, REVERSED in part, and

REMANDED. Each party shall bear its own costs on

appeal.