Todd D'Braunstein v. Chp

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TODD D’BRAUNSTEIN, No. 22-55237

Conservator over Steven D’Braunstein

and his Estate, D.C. No.

8:19-cv-01553-

Plaintiff-Appellant, JVS-KES

v.

OPINION

CALIFORNIA HIGHWAY PATROL;

SAMANTHA DIAZ-DURAZO,

California Highway Patrol Officer;

DOES, 1 through 100, inclusive,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted June 26, 2024

Seattle, Washington

Filed March 12, 2025

Before: Kenneth K. Lee, Daniel A. Bress, and Salvador

Mendoza, Jr., Circuit Judges.

Opinion by Judge Bress;

Partial Dissent by Judge Lee

2 D’BRAUNSTEIN V. CHP

SUMMARY *

Qualified Immunity/Medical Care

The panel reversed the district court’s summary

judgment for California Highway Patrol Officer Samantha

Diaz-Durazo on qualified immunity grounds in Steven

D’Braunstein’s 42 U.S.C. § 1983 action alleging that he was

denied adequate medical care.

D’Braunstein was involved in a serious single-vehicle

accident. Durazo arrived at the scene of the accident and

found D’Braunstein disoriented and in physical

distress. She did not call medical personnel. Instead,

roughly 45 minutes after arriving on the scene, she arrested

him after deciding he was on drugs and took him to

jail. When a nurse at the jail refused to admit D’Braunstein

due to his medical condition, Durazo transported him to the

hospital. It turned out that D’Braunstein had suffered a

stroke.

The Fourth and Fourteenth Amendments require state

actors to provide adequate medical care in certain

circumstances when the government confines a person or

otherwise restricts his liberty. The key question in assessing

an alleged violation is whether the officer’s provision (or

deprivation) of medical care was objectively unreasonable.

Construing the facts in the light most favorable to

D’Braunstein, a reasonable jury could find that Durazo

violated D’Braunstein’s constitutional rights by failing to

*

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

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

D’BRAUNSTEIN V. CHP 3

summon prompt medical care, considering the serious nature

of the collision and his evident symptoms of distress. A jury

could find that Durazo’s apparent belief that D’Braunstein

did not need medical attention was based on an unreasonable

mistake of fact or judgment. If that is true, Durazo’s failure

to summon prompt medical care was a violation of clearly

established law, which provides that officers must seek to

provide an injured detainee or arrestee with objectively

reasonable medical care in the face of medical necessity

creating a substantial and obvious risk of serious harm,

including by summoning medical assistance.

Dissenting in part, Judge Lee agreed with the majority

that a jury could find a constitutional violation. But Durazo

was entitled to qualified immunity because there was no

clearly established law requiring her to call for emergency

medical help when there were no obvious and clear signs of

an urgent medical necessity.

COUNSEL

Stuart B. Esner (argued) and Kathleen J. Becket, Esner

Chang Boyer & Murphy, Pasadena, California; Luis A.

Carrillo, Michael S. Carrillo, and J. Miguel Flores, Carrillo

Law Firm LLP, Pasadena, California; for Plaintiff-

Appellant.

Nathan G. Guttman (argued), Deputy Attorney General; Rob

Bonta, California Attorney General; Office of the California

Attorney General, Los Angeles, California; Vickie P.

Whitney, Deputy Attorney General; Catherine Woodbridge,

Supervising Deputy Attorney General; Office of the

California Attorney General, Sacramento, California;

Danielle F. O’Bannon, Senior Assistant Attorney General,

4 D’BRAUNSTEIN V. CHP

Office of the California Attorney General, Oakland,

California; for Defendants-Appellees.

OPINION

BRESS, Circuit Judge:

Steven D’Braunstein was involved in a serious single-

vehicle accident, his car destroyed. The highway patrol

officer who arrived at the crash found D’Braunstein

disoriented and in physical distress. But the officer never

called for medical assistance. Instead, roughly 45 minutes

after arriving on the scene, she arrested D’Braunstein after

deciding he was on drugs. It turns out D’Braunstein had

suffered a stroke. The officer did not take D’Braunstein to

the hospital until hours later, and it is alleged that the delay

in securing medical treatment led to D’Braunstein suffering

permanent injuries. The district court held that the officer

was entitled to qualified immunity. We reverse and remand

for further proceedings.

I

A

In reviewing the grant of summary judgment, we recount

the facts in the light most favorable to D’Braunstein, the

non-moving party. Garcia v. County of Merced, 639 F.3d

1206, 1208 (9th Cir. 2011).

Around 4:50 p.m. on June 1, 2018, Officer Samantha

Diaz-Durazo (Durazo) of the California Highway Patrol

(CHP) received a call about a traffic collision on a freeway

onramp in Costa Mesa, California. She arrived at the scene

D’BRAUNSTEIN V. CHP 5

at approximately 5:00 p.m. A black Audi had collided with

a concrete wall. The car was totaled. It had a crushed hood

and major front and side damage, and the steering wheel

airbag had deployed. Photographs of the car suggest a near

head-on collision with the wall. Standing next to the car was

55-year-old Steven D’Braunstein.

D’Braunstein told Durazo that he had been driving the

car at about 20 miles per hour and that he “[d]idn’t know

what happened” and “[t]he car did something.” Durazo

observed D’Braunstein exhibiting dry mouth, slurred

speech, profuse sweating, confusion, poor balance, slow

reaction time, and constricted pupils. In speaking with

Durazo, D’Braunstein made multiple spontaneous and

incoherent statements. Durazo further noticed that

D’Braunstein had difficulty answering basic questions,

including where he was going and what had caused the

collision. Eventually, D’Braunstein asked to sit down due to

his difficulty maintaining balance.

Officer Durazo did not call for an ambulance. Instead,

she began to evaluate whether D’Braunstein was under the

influence of alcohol or drugs. D’Braunstein said he had not

consumed either. Durazo did not smell alcohol on

D’Braunstein’s breath or find physical signs of drug use, and

a later search of D’Braunstein’s Audi did not uncover any.

Durazo administered a series of field sobriety tests on

D’Braunstein, but he was unable to perform them as

directed. After conducting various of these tests, Durazo

told D’Braunstein: “You got a serious condition. You’re not

leaving.” Durazo also administered a Breathalyzer test,

which revealed a 0.00 blood alcohol level. The parties

dispute whether D’Braunstein denied needing medical care,

6 D’BRAUNSTEIN V. CHP

having any medical issues, or needing to take any

medication.

Although she is not a drug recognition expert and did not

call one of the CHP’s drug recognition experts to the scene,

Durazo formed the opinion that D’Braunstein was on drugs.

Durazo still did not summon paramedics for D’Braunstein.

Instead, at approximately 5:44 p.m., around an hour after the

crash and 45 minutes after Durazo arrived on the scene,

Durazo placed D’Braunstein in handcuffs and arrested him

for driving a vehicle under the influence of drugs. Cal. Veh.

Code § 23152(f). Durazo then transported D’Braunstein to

the Orange County jail.

Durazo and D’Braunstein arrived at the jail around 6:30

p.m., with D’Braunstein’s symptoms persisting during the

drive. At the jail, a nurse examined D’Braunstein and found

he had high blood pressure. The nurse denied D’Braunstein

admittance to the jail and directed that he be taken to the

hospital. Around 8:20 p.m., approximately two hours after

they had arrived at the jail, Durazo drove D’Braunstein to

the Orange County Global Medical Center, without using

her siren or flashing lights. D’Braunstein was admitted to

the hospital at approximately 8:40 p.m., over three and a half

hours after Durazo first encountered him.

At the hospital, D’Braunstein was diagnosed with a

stroke. Officer Durazo remained at the hospital with

D’Braunstein until approximately 10:00 p.m., around which

time she officially released D’Braunstein from police

custody.

D’Braunstein’s delay in receiving medical treatment is a

key issue in this case. It is alleged that the delay prevented

doctors from providing D’Braunstein intravenous tissue

plasminogen activator (TPA) treatment, which would have

D’BRAUNSTEIN V. CHP 7

mitigated the stroke’s effects, because this treatment must be

administered within a certain number of hours after the onset

of stroke symptoms. D’Braunstein also contends more

generally that his delay in receiving medical treatment led

him to suffer greater lasting damage from the stroke. For her

part, Durazo maintains that D’Braunstein’s delay in

receiving medical care did not affect his ability to receive

TPA treatment because D’Braunstein began experiencing

stroke symptoms the night before, meaning the TPA

treatment would have been unavailable to him anyway.

It appears based on medical records that D’Braunstein

remained hospitalized for several weeks. D’Braunstein is

now unable to care for himself and lives in a long-term

residential care facility. D’Braunstein has suffered brain

damage and other injuries from the stroke.

B

D’Braunstein filed this lawsuit under 42 U.S.C. § 1983

in California state court against the CHP and Durazo. 1 Todd

D’Braunstein, next of kin, was substituted as plaintiff due to

D’Braunstein’s incapacity. After the case was removed to

federal court, the district court eventually granted summary

judgment for Durazo.

Although D’Braunstein raised a few different theories,

the only one before us concerns the deprivation of medical

care. Analyzing the claim under the Fourth Amendment, the

district court explained that case law “require[d] law

enforcement officers to provide objectively reasonable post-

arrest medical care to an arrestee,” and that “Durazo failed

to provide reasonable medical care to S. D’Braunstein in

violation of the Fourth Amendment.” In the district court’s

1

We will refer to the defendants collectively as “Durazo.”

8 D’BRAUNSTEIN V. CHP

view, Durazo had made “a grievous mistake of fact,”

because a reasonable officer encountering the collision

damage and someone with D’Braunstein’s symptoms

“should have summoned medical assistance.”

The district court nevertheless granted summary

judgment for Officer Durazo because, in the court’s view,

the constitutional violation was not clearly established. The

court reasoned that unlike the other cases in this area,

D’Braunstein “was not injured while being apprehended, but

rather, his injury was sustained prior to his arrest in an event

unrelated to his arrest.” The court also concluded that

although Durazo had violated D’Braunstein’s constitutional

rights, the violation was not “obvious” given D’Braunstein’s

symptoms. Having rejected D’Braunstein’s federal claims,

the court declined supplemental jurisdiction over his state

law claims.

D’Braunstein timely appealed. We initially held this

case for the en banc decision in J.K.J. v. City of San Diego,

No. 20-55622. See J.K.J. v. City of San Diego, 42 F.4th 990

(9th Cir. 2022), vacated, 59 F.4th 1327 (9th Cir. 2023).

When the parties in J.K.J. informed the court that they had

settled, we lifted our stay and heard oral argument. We

review the district court’s grant of summary judgment on

qualified immunity grounds de novo. Garcia, 639 F.3d at

1208.

II

The doctrine of qualified immunity protects police

officers from liability under § 1983 “unless (1) they violated

a federal statutory or constitutional right, and (2) the

unlawfulness of their conduct was ‘clearly established at the

time.’” District of Columbia v. Wesby, 583 U.S. 48, 62–63

(2018) (quoting Reichle v. Howards, 566 U.S. 658, 664

D’BRAUNSTEIN V. CHP 9

(2012)). We hold that construing the facts in the light most

favorable to D’Braunstein, a reasonable jury could find that

Officer Durazo violated D’Braunstein’s constitutional rights

by failing to summon him prompt medical care, considering

the serious nature of the collision and his evident symptoms

of distress. We further hold that a jury could find that

Durazo’s apparent belief that D’Braunstein was not in need

of medical attention was based on an unreasonable mistake

of fact or judgment. If that is true, Durazo’s failure to

summon prompt medical care was a violation of clearly

established law, disentitling her to qualified immunity.

A

We first consider whether there has been a violation of a

constitutional right. We agree with the district court that,

construing the facts in D’Braunstein’s favor, a jury could

find a constitutional violation.

The Constitution has been interpreted to require state

actors to provide adequate medical care in certain

circumstances when the government is confining a person or

otherwise restricting his liberty. See County of Sacramento

v. Lewis, 523 U.S. 833, 851 (1998) (“[W]hen the State takes

a person into its custody and holds him there against his will,

the Constitution imposes upon it a corresponding duty to

assume some responsibility for his safety and general well-

being.” (quoting DeShaney v. Winnebago Cnty. Dep’t of Soc.

Servs., 489 U.S. 189, 199–200 (1989))). For persons

convicted of a criminal offense and imprisoned, the right is

sourced to the Eighth Amendment. See Estelle v. Gamble,

429 U.S. 97, 102 (1976); Sandoval v. County of San Diego,

985 F.3d 657, 667 (9th Cir. 2021). In the case of pretrial

detainees who have not been convicted of a criminal offense,

the right is sourced to the Fourteenth Amendment. See Bell

10 D’BRAUNSTEIN V. CHP

v. Wolfish, 441 U.S. 520, 535 n.16 (1979); Sandoval, 985

F.3d at 669. We have also said that for persons who are

detained by police in the course of an arrest, the Fourth

Amendment’s prohibition on the use of excessive force

protects against the deprivation of necessary medical care.

See Tatum v. City & Cnty. of S.F., 441 F.3d 1090, 1098–99

(9th Cir. 2006). This explains why the district court

analyzed D’Braunstein’s medical care claim under the

Fourth Amendment.

Under the Fourth and Fourteenth Amendments, the

standards both turn on objective reasonableness. As we

explained in Tatum, what is required under the Fourth

Amendment is “objectively reasonable post-arrest care,”

which means that police officers must “seek the necessary

medical attention for a detainee when he or she has been

injured while being apprehended by either promptly

summoning the necessary medical help or by taking the

injured detainee to a hospital.” Id. at 1099 (quoting Maddox

v. City of L.A., 792 F.2d 1408, 1415 (9th Cir. 1986)). But

this does not “require an officer to provide what hindsight

reveals to be the most effective medical care for an arrested

suspect.” Id. at 1098. Thus, in Tatum, we held that officers

who promptly requested an ambulance for an arrestee, but

who did not perform CPR on him, acted in an objectively

reasonable manner. Id. at 1099.

Fourteenth Amendment claims are analyzed similarly.

In the Fourteenth Amendment context, our case law instructs

that “an objective standard applies to constitutional claims

of inadequate medical care brought by pretrial detainees.”

Sandoval, 985 F.3d at 662 (citing Gordon v. County of

Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018)). The

standard is one of “objective deliberate indifference” in the

face of a “substantial risk” of the plaintiff “suffering serious

D’BRAUNSTEIN V. CHP 11

harm.” Gordon, 888 F.3d at 1125. Thus, the common

underlying constitutional question reflected in Fourth and

Fourteenth Amendment case law is whether an officer’s

provision (or deprivation) of medical care was objectively

unreasonable. Our Fourteenth Amendment precedents bear

on our analysis here and form part of the body of law on

which officers and courts may reasonably rely.

In this case, Durazo encountered D’Braunstein soon after

he was involved in a major collision that destroyed his car

and caused the airbag to deploy. D’Braunstein was

disoriented, sweating profusely, had poor balance, his pupils

were constricted, and his speech was slurred and extremely

slow. He had difficulty answering standard questions and

could not perform the field sobriety tests as directed. Durazo

herself told D’Braunstein at the scene that he had “a serious

condition.” And yet for reasons that are difficult to

understand, Durazo did not call medical personnel to the site

of the crash. She instead took D’Braunstein to jail. And she

did not bring D’Braunstein to the hospital until hours later,

and, even then, not until a nurse at the jail refused to admit

D’Braunstein due to his medical condition.

We agree with the district court that, construing the facts

in the light most favorable to D’Braunstein, a reasonable jury

could find that Durazo’s failure to summon prompt medical

treatment for D’Braunstein was objectively unreasonable,

and that Durazo acted with reckless disregard for

D’Braunstein’s safety and well-being. Given the serious

nature of the accident and D’Braunstein’s symptoms, a jury

could conclude that D’Braunstein faced a “substantial risk of

serious harm” due to a “serious medical need,” such that a

failure to summon prompt medical attention “could result in

further significant injury.” Russell v. Lumitap, 31 F.4th 729,

739 (9th Cir. 2022) (quoting Peralta v. Dillard, 744 F.3d

12 D’BRAUNSTEIN V. CHP

1076, 1086 (9th Cir. 2014) (en banc)). A jury could find that

a reasonable officer in Durazo’s position would have called

for medical support. That is, a jury could find that “a

reasonable official in the circumstances would have

appreciated the high degree of risk involved—making the

consequences of [Durazo’s] conduct obvious.” Gordon, 888

F.3d at 1125.

This is not a situation in which Durazo made some

efforts to secure timely medical care and we are being asked

to evaluate whether the choice of one action over another

was constitutionally sufficient. Cf. Tatum, 441 F.3d at

1098–99; see also City of Revere v. Massachusetts Gen.

Hosp., 463 U.S. 239, 245 (1983) (“Whatever the standard

may be, [the defendant] fulfilled its constitutional obligation

by seeing that [the arrestee] was taken promptly to a hospital

that provided the treatment necessary for his injury.”). Here,

Durazo did nothing to secure medical aid for D’Braunstein

for several hours, even though she testified that her CHP

training taught her to contact emergency medical personnel

if there has been a serious traffic collision.

A jury could thus find that D’Braunstein presented with

a substantial risk of serious harm and that Durazo did not

“promptly summon[] the necessary medical help or . . .

tak[e] the injured [D’Braunstein] to a hospital” in an

objectively reasonable manner. Tatum, 441 F.3d at 1099

(quoting Maddox, 792 F.2d at 1415); see also, e.g.,

Sandoval, 985 F.3d at 670 (“[A] jury could conclude that a

reasonable nurse who was told that Sandoval was shaking,

tired, and disoriented—and who was specifically directed by

a deputy to evaluate Sandoval ‘more thoroughly’—would

have understood that Sandoval faced a substantial risk of

suffering serious harm.” (quotation omitted)); Lolli v.

County of Orange, 351 F.3d 410, 419–420 (9th Cir. 2003).

D’BRAUNSTEIN V. CHP 13

To the extent Durazo argues that she did not secure medical

treatment because D’Braunstein said it was unnecessary, this

turns on disputed facts and raises additional questions about

the objective reasonableness of Durazo’s decision not to

seek prompt medical care.

Durazo’s subjective belief that D’Braunstein was on

drugs does not change matters. Durazo knew there was no

physical evidence of drug or alcohol use. But regardless,

Durazo’s subjective belief about possible drug use does not

alter the fact that D’Braunstein had just emerged from a

violent car crash and was exhibiting physical and cognitive

abnormalities. The reason for the crash did not change the

need for emergency medical evaluation. We therefore hold

that a jury could find that Officer Durazo did not provide

D’Braunstein with objectively reasonable medical care

when she did not attempt to arrange any treatment for hours

after D’Braunstein was involved in a serious vehicle

accident and showed signs of distress.

Like the district court, we reject Durazo’s argument that

there is no genuine dispute of material fact as to causation,

i.e., that Durazo’s delay in securing medical care did not

cause D’Braunstein’s more serious stroke-related injuries.

D’Braunstein’s primary theory of the case is that Durazo’s

delay made D’Braunstein ineligible for TPA treatment,

which worsened the effects of his stroke. Durazo responds

that D’Braunstein was already ineligible for TPA treatment

because his stroke manifested the night before. As the

district court explained, however, the nature of

D’Braunstein’s symptoms the night before is genuinely

disputed, as is how D’Braunstein’s condition might have

improved had he been taken to a hospital sooner. This

dispute over causation is a matter for a jury to decide. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)

14 D’BRAUNSTEIN V. CHP

(“[T]he judge’s function is not himself

to weigh the evidence and determine the truth of the matter

but to determine whether there is a genuine issue for trial.”).

B

We next consider whether the constitutional violation

was clearly established. A right is “clearly established”

when it is “‘sufficiently clear ‘that every reasonable official

would have understood that what he is doing violates that

right.’” Reichle, 566 U.S. at 664 (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011) (brackets omitted)). “In

other words, ‘existing precedent must have placed the

statutory or constitutional question beyond debate.’” Id.

(quoting al-Kidd, 563 U.S. at 741). “This demanding

standard protects ‘all but the plainly incompetent or those

who knowingly violate the law.’” Wesby, 583 U.S. at 63

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

In this case, it is clearly established that officers must

seek to provide an injured detainee or arrestee with

objectively reasonable medical care in the face of medical

necessity creating a substantial and obvious risk of serious

harm, including by summoning medical assistance. See,

e.g., Russell, 31 F.4th at 738–39; Sandoval, 985 F.3d at 662;

Gordon, 888 F.3d at 1124–25; Tatum, 441 F.3d at 1098–99.

Officers may not act with objective deliberate indifference

to such a medical need. Any reasonable officer would

appreciate this well-established obligation. Durazo

nevertheless claims she is entitled to qualified immunity for

two main reasons.

First, Durazo maintains that the cases in this area only

establish the need to provide objectively reasonable medical

care when it is the officer’s conduct during the arrest that

causes the injury warranting immediate medical attention. It

D’BRAUNSTEIN V. CHP 15

does not appear this was Durazo’s reason at the time for not

summoning medical care for D’Braunstein. In any event, we

reject this argument. Our law has never limited the Fourth

and Fourteenth Amendment duties to provide prompt and

necessary medical care to those situations in which the

medical necessity was occasioned by the officer’s own use

of force. Instead, we have made clear that this duty exists

even if the detainee’s injury arose from some other cause.

This is not an open legal question.

In Tatum, for example, the arrestee was suffering from

cocaine intoxication that was no fault of the officers, but we

did not doubt that the officers still had a duty to “promptly

summon[] the necessary medical care.” 441 F.3d at 1099;

see also, e.g., Otis v. Demarasse, 886 F.3d 639, 645–46 (7th

Cir. 2018) (holding that the plaintiff stated a Fourth

Amendment claim against the arresting officer who delayed

in securing plaintiff medical care for her uterine bleeding).

Similarly, in Sandoval, a Fourteenth Amendment case, we

held that nurses at a jail were not entitled to qualified

immunity when they failed to summon paramedics for an

inmate who was experiencing a methamphetamine overdose.

985 F.3d at 679. In Russell, we likewise held that jail

medical personnel were not entitled to qualified immunity

because a jury could find them deliberately indifferent for

their inadequate treatment of an inmate experiencing an

aortic rupture not caused by any official at the jail. 31 F.4th

at 735, 743–45. Indeed, there are many Fourteenth

Amendment cases finding a constitutional violation or

denying qualified immunity when law enforcement officers

or jail personnel failed to provide objectively reasonable

medical care to persons whose serious injuries were not

caused by the officer defendants. See, e.g., Clouthier v.

County of Contra Costa, 591 F.3d 1232, 1244–45 (9th Cir.

16 D’BRAUNSTEIN V. CHP

2010), overruled in part on other grounds by Castro v.

County of L. A., 833 F.3d 1060 (9th Cir. 2016); Lolli, 351

F.3d at 419–20; Gordon v. County of Orange, 6 F.4th 961,

970–72 (9th Cir. 2021).

This brings us to Durazo’s second argument, which is

that there is no case law that would have put Durazo on

notice, in the specific circumstances she confronted, of the

duty to summon prompt medical care. This argument is

misplaced. In the context of a § 1983 claim about the failure

to summon timely medical attention, case law cannot tell us

whether a certain set of facts suggests a legitimate medical

emergency. That is not a question of decisional law, but one

of factual perception and on-the-ground judgment. See

Russell, 31 F.4th at 741 (affirming the denial of qualified

immunity to certain defendants and noting that “we need not

point to cases dealing with the specific type of cardiac

symptoms Russell displayed”).

This does not mean qualified immunity is never available

to those who make these kinds of determinations in error.

We readily agree that “[t]he protection of qualified immunity

applies regardless of whether the government official’s error

is ‘a mistake of law, a mistake of fact, or a mistake based on

mixed questions of law and fact.’” Pearson v. Callahan, 555

U.S. 223, 231 (2009) (quoting Groh v. Ramirez, 540 U.S.

551, 567 (2004) (Kennedy, J., dissenting)).

But if the law is otherwise clearly established, an officer

is not entitled to qualified immunity for a mistake of fact or

judgment that is itself unreasonable. “Not all errors in

perception or judgment . . . are reasonable.” Torres v. City

of Madera, 648 F.3d 1119, 1124 (9th Cir. 2011). And

“[t]hough we may excuse the reasonable officer for such a

mistake, it sometimes proves necessary for a jury to

D’BRAUNSTEIN V. CHP 17

determine first whether the mistake was, in fact, reasonable.”

Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159,

1168 (9th Cir. 2013) (citation omitted). That is because

“[a]n unreasonable mistake of fact does not provide the basis

for qualified immunity.” Demuth v. County of L.A., 798 F.3d

837, 839 (9th Cir. 2015) (citing Liberal v. Estrada, 632 F.3d

1064, 1078 (9th Cir. 2011)).

To the extent Officer Durazo is arguing that she

reasonably believed D’Braunstein did not require medical

attention, we have already explained that a jury could find

her perception of the facts not only wrong, but objectively

unreasonable. Under these circumstances, to assess whether

Durazo is entitled to qualified immunity under the second

prong of the analysis, “we assume she ‘correctly perceived

all of the relevant facts’ and ask whether an officer could

have reasonably believed at the time” that her actions were

“lawful under the circumstances.” Torres, 648 F.3d at 1127

(quoting Saucier v. Katz, 533 U.S. 194, 205 (2001)). That

is, we presume the officer correctly perceived all the relevant

facts of which she could have reasonably been aware (we do

not presume clairvoyance) and ask if any reasonable officer

in those circumstances would understand that what she was

doing (or not doing) was unlawful.

Durazo’s assertion under the second prong of the

qualified immunity inquiry thus boils down to the claim that

there is no past case with facts close enough to this one. The

argument does not work here. It is of course true that we

may not “define clearly established law at a high level of

generality, since doing so avoids the crucial question

whether the official acted reasonably in the particular

circumstances that he or she faced.” Wesby, 583 U.S. at 64–

64 (quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)).

At the same time, for purposes of qualified immunity’s

18 D’BRAUNSTEIN V. CHP

“clearly established” prong, there “does not have to be ‘a

case directly on point.’” Id. (quoting al-Kidd, 563 U.S. at

741). And to be clearly established, there is no requirement

that “the very action in question has previously been held

unlawful.” Anderson v. Creighton, 483 U.S. 635, 640

(1987).

Here, as we have discussed, there is a clearly established

duty to provide an arrestee or detainee with objectively

reasonable medical care in the face of a serious medical need

creating a substantial and obvious risk of harm, including by

calling for medical assistance. See, e.g., Russell, 31 F.4th at

738–39; Sandoval, 985 F.3d at 662; Gordon, 888 F.3d at

1124–25; Tatum, 441 F.3d at 1098–99. Indeed, we have

already treated this principle as clearly established. See, e.g.,

Russell, 31 F.4th at 738–39. It is true that our prior cases

may not have involved car accidents or stroke victims. But

that degree of specificity is not required. As we recently

explained in a case affirming the denial of qualified

immunity for failure to furnish adequate medical care, “[i]t

is not necessary to have a case involving a heart attack, a

case involving appendicitis, or a case involving bowel

obstruction for a § 1983 claim based on one of those

conditions to survive qualified immunity.” Id. at 737–38.

And as we discussed above, whether a certain situation

(here, a serious car crash) coupled with certain symptoms

(here, physical and mental disorientation and distress)

created a medical emergency is a question of factual

impression, not one answered by case law.

The question of clearly established law would be

different if Durazo had made some efforts to secure medical

care for D’Braunstein and the argument was that her actions

were still insufficient. That would require an examination of

the proper scope of the legal obligation. The problem for

D’BRAUNSTEIN V. CHP 19

Durazo is that she did nothing for hours. Her efforts to

summon medical care cannot be described as “prompt[].”

Tatum, 441 F.3d at 1099. Nor can it be argued that the

circumstances here so defied common experience as to place

this case outside of the clearly established law requiring

objectively reasonable medical care in cases of serious

medical necessity. It does not require unusual foresight to

appreciate that someone who has been in a major car

accident and is exhibiting signs of distress and disorientation

may need prompt medical attention. On these facts, a jury

could so conclude.

Our fine dissenting colleague therefore misperceives this

case. The issue is not, as the dissent writes, whether Durazo

properly “distinguish[ed] between symptoms” of a stroke or

drug use, but whether she properly distinguished between

whether the situation called for prompt medical attention or

not. Construing the facts in the light most favorable to

D’Braunstein, a reasonable jury could find that following a

major car accident, D’Braunstein—in Durazo’s own

words—was suffering from a “serious condition,” which

presented a substantial risk of serious harm. We do not

“demand” that officers make “difficult medical decisions,”

as the dissent claims. This case instead involves an officer’s

basic failure to summon any prompt medical care for

someone who had emerged from a major vehicle accident

and was exhibiting obvious signs of physical distress and

disorientation. Nothing in our decision today imposes any

greater obligation—an obligation that the law already clearly

imposed if the jury finds the facts in D’Braunstein’s favor.

* * *

The judgment of the district court is reversed, and the

matter is remanded for further proceedings. The district

20 D’BRAUNSTEIN V. CHP

court should likewise resume consideration of the state law

claims over which it declined supplemental jurisdiction.

REVERSED AND REMANDED.

LEE, Circuit Judge, dissenting in part.

This is a tragic case. California Highway Police Officer

Samantha Diaz-Durazo thought that Todd D’Braunstein was

under the influence of drugs when he crashed his car into a

wall. She noticed profuse sweating, slurred speech,

constricted pupils, and other common symptoms of drug use.

In fact, he had suffered a stroke, though he did not show the

typical symptoms, such as facial sagging or paralysis on one

side of the body. In retrospect, Officer Durazo should have

called medical assistance immediately rather than take him

to jail. And D’Braunstein suffered tremendously because of

that mistake.

But Officer Durazo is not a doctor or a nurse. There were

no visible signs requiring emergency medical help—profuse

bleeding, broken bones, labored breathing, or

unconsciousness. Instead, she saw signs suggesting drug use

and missed that some of those symptoms could also reflect a

stroke. At the time, there was no clearly established law

requiring an officer to distinguish between symptoms and

then call for emergency medical assistance when there are

no obvious signs of a major physical injury. We ask too

much from law enforcement officers if we demand that they

make difficult medical decisions at crime scenes or

accidents. I thus respectfully dissent from the majority’s

decision denying qualified immunity.

D’BRAUNSTEIN V. CHP 21

* * * *

D’Braunstein crashed his car into a concrete wall. When

Officer Durazo arrived, Braunstein was standing outside his

car and provided his driver’s license. But all was not well.

He appeared confused at times, did not know how he crashed

his car, and later asked to sit down because of trouble

balancing himself. Officer Durazo noticed dry mouth,

slurred speech, profuse sweating, poor balance, and

constricted pupils. Based on her training and experience as

an officer, she believed that he was under the influence of

drugs.

Officer Durazo knew of the more common signs of a

stroke—paralysis in one side of the body, sagging facial

muscles, numbness in limbs, and lack of consciousness.

Because she did not see any of these symptoms, she

mistakenly concluded that he was under the influence. She

did not appreciate that some symptoms of drug use (such as

confusion and poor balance) could also signify a stroke. She

thus did not call the paramedics and instead drove him to

Orange County jail, where he was examined by a nurse. He

was later diagnosed with a stroke at a hospital.

* * * * *

I agree with the majority that a jury could find a

constitutional violation, construing the facts in

D’Braunstein’s favor at summary judgment. But I depart

from the majority in its “clearly established’ prong analysis

of qualified immunity. To prevail in a Section 1983 lawsuit,

a plaintiff must show that (1) a government official “violated

a federal statutory or constitutional right, and (2) the

unlawfulness of [the] conduct was ‘clearly established at the

time.’” District of Columbia v. Wesby, 583 U.S. 48, 62–63

22 D’BRAUNSTEIN V. CHP

(2018) (citing Reichle v. Howards, 566 U.S. 658, 664

(2012)).

A right is “clearly established” when it is “sufficiently

clear ‘that every reasonable official would [have understood]

that what he is doing violates that right.’” Reichle, 566 U.S.

at 664 (alteration in original) (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011)). Put another way, “existing

precedent must have placed the statutory or constitutional

question beyond debate.” Id. This means that qualified

immunity protects “all but the plainly incompetent or those

who knowingly violate the law.”D.C. v. Wesby, 583 U.S. 48,

63 (2018) (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986))..

I do not believe that it was clearly established that an

officer must distinguish between various symptoms and then

call for emergency medical help when there are no outward

signs of a serious medical injury. At a general level, I agree

that officers must provide reasonable medical care, including

calling for emergency help if necessary. For example, if an

officer encounters someone who has deep lacerations or has

trouble breathing, that officer must provide adequate

medical care, such as summoning paramedics. That is what

happened in Tatum v. City and Cty. of San Francisco, the

key case cited by D’Braunstein. 441 F.3d 1090 (9th Cir.

2006). The officers there called for medical help after

noticing that Tatum struggled to breathe. Id. at 1093.

In contrast here, Officer Durazo saw no signs of a

medical emergency. D’Braunstein was standing—with no

major bleeding or any other visible physical injuries. True,

he appeared confused at times, had slurred speech, and was

sweating significantly. But these are common symptoms of

drug use. They also may be linked to a stroke, though

D’BRAUNSTEIN V. CHP 23

D’Braunstein did not have the most obvious indications of a

stroke (e.g., sagging face, partial paralysis). Faced with

these conflicting medical symptoms, Officer Durazo made

the wrong decision. But qualified immunity protects “all but

the plainly incompetent.” Wesby, 583 U.S. at 63. And I

cannot say Officer Durazo was plainly incompetent, even if

her mistake ended with severe consequences for

D’Braunstein.

None of the cases cited by the majority opinion are

factually analogous to ours. In Russell v. Lumitap, a detainee

repeatedly complained of deep pains in his chest and said his

pain was “10 out of 10.” 31 F.4th 729, 733–36 (9th Cir.

2022). But the nurses only offered a Motrin and instructed

him on “relaxation techniques,” while the doctor never

bothered to physically examine him. Id. at 735. He later

died of a ruptured aorta, and his family sued the doctor and

two nurses. Id. at 742. That is a far cry from our case.

Similarly, Sandoval v. Cnty. of San Diego involved nurses

who did not monitor a detainee for eight hours, even though

the deputies noticed drug withdrawal symptoms and asked

the nurses to observe him closely. 985 F.3d 657, 662-63 (9th

Cir. 2021). Moreover, the “team leader” nurse in Sandoval

refused to call an ambulance even when officers asked her

to do so. Id. at 664. In contrast here, Officer Durazo did

not have medical training or fail to summon medical

attention when told to do so. Finally, in Gordon v. Cnty, of

Orange, the nurse and the deputies knew that Gordon had a

3-grams-a-day heroin habit and were advised that “Gordon

required medical attention” but they allegedly did not

adequately monitor him. 888 F.3d 1118, 1121 (9th Cir.

2018). By comparison, Officer Durazo knew nothing of

D’Braunstein’s medical history that would indicate a risk of

stroke or a need for greater medical attention.

24 D’BRAUNSTEIN V. CHP

Ultimately, the majority opinion relies on the general

principle that a law enforcement officer must provide

reasonable medical care. True enough. But for qualified

immunity, the Supreme Court “has repeatedly told

courts . . . not to define clearly established law at a high level

of generality.” Kisela v. Hughes, 584 U.S. 100, 104 (2018)

(quoting al-Kidd, 563 at 742). The facts here are tragic, but

I believe qualified immunity applies because there was no

clearly established law requiring Officer Durazo to call for

emergency medical help when there were no obvious and

clear signs of an urgent medical necessity.

I thus respectfully dissent.