Gonzalez v. City of Phoenix

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAURA GONZALEZ, individually No. 24-2510

and on behalf of the statutory

D.C. No.

beneficiaries of Ramon Timothy

2:21-cv-01340-

Lopez, and in her capacity as the

MTL-DMF

Personal Representative of the estate

of Ramon Timothy Lopez,

Plaintiff - Appellee, OPINION

v.

CITY OF PHOENIX, a municipality;

BOBBI COZAD; OSCAR

JIMENEZ; BRETT

LINGENFELTER; ALONSO

LOPEZ; ROSZELL MOSLEY;

TODD STEVENS; ANDREW

WILLIAMS,

Defendants - Appellants.

Appeal from the United States District Court

for the District of Arizona

Michael T. Liburdi, District Judge, Presiding

Argued and Submitted May 12, 2025

Phoenix, Arizona

2 GONZALEZ V. CITY OF PHOENIX

Filed January 8, 2026

Before: Johnnie B. Rawlinson, Patrick J. Bumatay, and

Gabriel P. Sanchez, Circuit Judges.

Opinion by Judge Sanchez;

Partial Concurrence and Partial Dissent by Judge Bumatay

SUMMARY *

Excessive Force

The panel affirmed the district court’s denial of qualified

immunity to Phoenix Police Department officers in a suit

alleging that after apprehending decedent Timothy Lopez

following a foot chase, the officers used excessive force by

applying a RIPP hobble restraint that bent Lopez’s body

upward into a hogtied position while he lay face down in a

police vehicle, during which he became unresponsive, and

was later pronounced dead.

The panel first held that the officers’ actions of placing

and transporting Lopez in a RIPP constituted a seizure for

Fourth Amendment purposes. The panel next held that

viewing the evidence in the light most favorable to plaintiff,

Lopez’s mother, a jury could determine that the officers’ use

of force was unreasonable because the RIPP restraint exerted

significant pressure on Lopez’s chest, restricting his ability

to breathe and unnecessarily creating a substantial risk of

*

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

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

GONZALEZ V. CITY OF PHOENIX 3

death or serious bodily injury. Furthermore, the law from

this circuit has long established that in a situation in which

an arrestee surrenders and is rendered helpless, any

reasonable officer would know that a continued use of force

or a refusal without cause to alleviate its harmful effects

constitutes excessive force. Accordingly, the panel affirmed

the district court and remanded for further proceedings.

Concurring in the judgment in part and dissenting in part,

Judge Bumatay wrote that though the initial use of the RIPP

restraint was reasonable, he agreed with the majority that the

officers who left Lopez prone on his stomach while

effectively hogtied in the back of the police vehicle were not

entitled to qualified immunity. However, he would have

granted qualified immunity to Officers Lopez and Cozad

because no case clearly establishes that merely driving a car

a short distance with an improperly restrained suspect

violates the Constitution. This action—transporting a

suspect—is very different from the actions of officers who

actively continued to use what allegedly amounted to deadly

force on Lopez.

COUNSEL

Jesse M. Showalter (argued) and Joel B. Robbins, Robbins

Curtin Millea & Showalter LLC, Phoenix, Arizona, for

Plaintiff-Appellee.

Ashley E. Caballero-Daltrey (argued) and John T.

Masterson, Jones Skelton & Hochuli PLC, Phoenix,

Arizona; for Defendants-Appellants.

4 GONZALEZ V. CITY OF PHOENIX

OPINION

SANCHEZ, Circuit Judge:

After pursuing and apprehending Ramon Timothy Lopez

in a foot chase, officers of the Phoenix Police Department

applied a “RIPP” restraint connecting Lopez’s ankle

restraint to his handcuffed wrists and causing Lopez’s body

to bend upward in a hogtied position. Lopez grunted and

gasped as he lay on his chest and then became limp. He was

carried to a patrol vehicle and laid face down across the back

seat with the RIPP restraint still in place. After officers

drove Lopez to a nearby parking lot, they found him

unresponsive. He was transported to a hospital and

pronounced dead. Lopez’s mother, Plaintiff Laura

Gonzalez, sued the City of Phoenix and several of the

officers alleging excessive force and related federal and state

law claims. Defendants now appeal the district court’s

partial denial of their motion for summary judgment.

In this interlocutory appeal, we address a narrow

question: whether defendants are entitled to qualified

immunity from Plaintiff’s claim that the officers used

excessive force by placing and transporting Lopez in a

hogtied and prone position after he no longer posed a risk of

flight or a threat to officer safety. Viewing the evidence in

the light most favorable to Plaintiff, a jury could determine

that the officers’ use of force was unreasonable because the

RIPP restraint exerted significant pressure on Lopez’s chest,

restricting his ability to breathe and unnecessarily creating a

substantial risk of death or serious bodily injury.

Furthermore, law from our circuit has long established that

“[i]n a situation in which an arrestee surrenders and is

rendered helpless, any reasonable officer would know that a

GONZALEZ V. CITY OF PHOENIX 5

continued use of force or a refusal without cause to alleviate

its harmful effects constitutes excessive force.” Drummond

v. City of Anaheim, 343 F.3d 1052, 1062 (9th Cir. 2003)

(quoting LaLonde v. Cnty. of Riverside, 204 F.3d 947, 961

(9th Cir. 2000)) (cleaned up). Accordingly, we affirm the

district court and remand for further proceedings.

I.

A.

On August 4, 2020, the Phoenix Police Department

(“Phoenix PD”) received a report of a man acting erratically.

Phoenix Police Officers Todd Stevens, Andrew Williams,

and Roszell Mosley arrived on the scene. They watched

Lopez remove a wallet from his pocket, empty its contents,

and discard the wallet. Lopez appeared “spooked” and

“paranoid” as he bounced from car to car, ran into a wall,

and fell down. Based on his behavior, the officers suspected

that Lopez was high on methamphetamine.

Officer Stevens approached Lopez by a liquor store

entrance, and Lopez ran out of the store. Officer Stevens

gave chase and ordered Lopez to stop. Lopez ignored the

command and ran onto a busy street with ongoing traffic.

Officer Stevens followed Lopez and pulled him down.

Officers Williams and Mosley arrived moments later. They

grabbed Lopez’s arms and wrists as Officer Stevens called

for backup and ordered Lopez to roll onto his stomach.

Lopez struggled to free himself from the officers’ grasp by

pulling his arms and kicking his legs up. Pressed to the

ground, Lopez appeared distressed, disoriented, and out of

breath. He grunted and cried out several times. Officer

Mosley observed, “I think his left arm’s broken.” At the

time Lopez was detained, the ambient air temperature in

6 GONZALEZ V. CITY OF PHOENIX

Phoenix was 101 degrees and the temperature of the asphalt

was approximately 145 degrees.

After a minute of struggle, the officers rolled Lopez onto

his stomach. They pressed him face down and placed

handcuffs on his wrists. Officer Stevens held Lopez’s left

shoulder or upper arm and lifted it off the ground, Officer

Williams held Lopez’s ankles, and Officer Mosley pressed

his knee to Lopez’s back. Lopez told the officers, “You guys

are killing me.” Lopez continued to cry out and grunt but

stopped struggling. The officers held Lopez in a prone

position for nearly three minutes. More officers arrived in

response to the call for backup. Officers Alonso Lopez,

Bobbi Cozad, Oscar Jimenez, and Brett Lingenfelter parked

their patrol vehicles to block the street traffic. Officer

Jimenez then applied a RIPP restraint on Lopez.

A RIPP restraint is a type of hobble restraint meant to

temporarily secure combative or violent subjects to prevent

injury to the subject or officers and to minimize the

opportunity for escape. A RIPP restraint consists of a nylon

loop with a metal fastener or cinch on one end, a long strap

extending from the loop, and a brass hook or latch at the end

of the strap to connect to a subject’s handcuffs. Phoenix PD

are trained to apply a RIPP restraint by securing the RIPP

restraint around the subject’s ankles, extending the strap

upward from the ankle restraint, and attaching the hook to

the subject’s handcuffs. Officers are trained to never shorten

the RIPP restraint by looping the strap through the subject’s

handcuffs and fastening the hook to the subject’s ankle

restraint. Doing so lifts the suspect’s legs in the air and

upward toward the wrists and impedes the suspect’s ability

to breathe. Phoenix PD are also trained to leave sufficient

length on the RIPP restraint strap so that officers can raise

the suspect onto his feet to enable transport.

GONZALEZ V. CITY OF PHOENIX 7

According to Plaintiff, the officers’ application of the

RIPP restraint on Lopez deviated from department training

and policy and effectively hogtied Lopez. Officer Jimenez

shortened the RIPP restraint by looping it through Lopez’s

handcuffs and attaching the hook to Lopez’s ankle strap. In

doing so, the shortened RIPP restraint bent Lopez’s arms

back and lifted his legs up so that his ankles were lifted off

the ground and pulled toward his wrists. Once bound, Lopez

did not move. Officer Mosley continued to press his knee

on Lopez’s back for fifty-five seconds. Lopez remained

hogtied and face down against the pavement for nearly one

minute.

In that position, Lopez’s condition appeared to worsen.

Officer Cozad later testified that Lopez was grunting, his

skin tone appeared abnormal, and he “obviously needed

medical attention.” Lopez soon stopped making noises, and

as multiple officers observed, his body went limp. Officer

Williams radioed the Fire Department for medical

assistance. Officer Mosley lifted his knee from Lopez’s

back. By this point, nearly six minutes had elapsed since the

officers first held Lopez down on the asphalt. The officers

tried to pull Lopez up, as Officer Mosley told him to “sit up”

and “relax”––but Lopez did not respond. The officers did

not, however, adjust his RIPP restraint.

Officers Mosley, Stevens, and Jimenez lifted Lopez’s

body by his arms and legs and carried him to a nearby police

vehicle. They placed Lopez face down in the back seat, with

his chest outstretched and his legs still bent up, secured by

the RIPP restraint and handcuffs. A fourth officer, Officer

Lingenfelter, moved to the other side of the vehicle and

helped pull Lopez across the back seat. Lopez’s torso rested

atop a hard plastic hump dividing the seats. Officer

8 GONZALEZ V. CITY OF PHOENIX

Lingenfelter pushed Lopez’s shoulders into the vehicle and

shut the car door.

Officers Cozad and Lopez drove Lopez to a nearby

parking lot. The drive lasted two minutes. Neither officer

turned to observe Lopez or check on his condition during the

drive. Lopez continued to lay face down in the back seat

with his ankles bound to his wrists and his legs lifted upward.

Once they reached the parking lot, Officers Cozad and Lopez

removed Lopez from the vehicle and discovered that he was

unresponsive. They removed the RIPP restraint and sat him

up. The officers rested Lopez against the car door, poured

water over his head, and rubbed his sternum. But they

observed that Lopez’s eyes had rolled backward.

Phoenix Fire Department personnel arrived and found

that Lopez was not breathing and had no pulse. Paramedics

were unable to resuscitate him. Lopez was transported to a

hospital, where he was pronounced dead. According to the

medical examiner’s report, Lopez’s death was caused by

“[c]ardiac arrest in the setting of methamphetamine

intoxication, dilated cardiomyopathy, and physical

restraint.”

B.

Plaintiff Laura Gonzalez filed suit individually, on

behalf of Lopez’s statutory beneficiaries, and in her capacity

as the personal representative of Lopez’s estate under 42

U.S.C. § 1983 and Arizona law. She named Defendants City

of Phoenix and Officers Cozad, Jimenez, Lingenfelter,

Lopez, Mosley, Stevens, and Williams in the action. In her

complaint, Gonzalez asserted Fourth Amendment claims of

false arrest and excessive force, a Fourteenth Amendment

claim for deprivation of familial society and companionship,

claims against the City of Phoenix under Monell v.

GONZALEZ V. CITY OF PHOENIX 9

Department of Social Services, 436 U.S. 658 (1978), and

state law claims of wrongful death and negligent supervision

against the City of Phoenix. Defendants moved for summary

judgment on all claims based on qualified immunity.

The district court granted in part and denied in part

Defendants’ motion for summary judgment. The court

granted Defendants’ motion with respect to Plaintiff’s

federal law claims of false arrest, deprivation of familial and

societal companionship, and Monell liability against the City

of Phoenix, as well as Plaintiff’s state law claim of negligent

training and supervision. The district court also granted

Defendants’ motion concerning the officers’ use of force

prior to and including the initial application of the RIPP

restraint.1 The court denied Defendants’ motion with respect

to the officers’ use of force after the application of the RIPP

restraint, including Officer Mosley’s kneeling on Lopez and

the officers’ placement and transportation of Lopez in a

police vehicle while he was subject to the RIPP restraint.

The district court also denied summary judgment as to

Plaintiff’s related failure to intervene claim, Plaintiff’s

wrongful death claim based on vicarious liability, and

Plaintiff’s request for punitive damages against individual

defendants.

Defendants timely appealed the district court’s denial of

qualified immunity in part. The only questions before this

Court are whether Defendants are entitled to qualified

immunity based upon (1) Officers Mosley, Stevens,

Jimenez, and Lingenfelter placing Lopez into a police

vehicle in his face-down, handcuffed, and RIPP-restrained

1

Under our interlocutory review, these determinations are not before this

Court.

10 GONZALEZ V. CITY OF PHOENIX

position, and (2) Officers Cozad and Lopez transporting

Lopez to a parking lot while Lopez remained in that position.

II.

We must “decide de novo whether the facts, considered

in the light most favorable to the plaintiff, show that

qualified immunity is warranted” when we review a district

court’s denial of summary judgment based on qualified

immunity. Sanderlin v. Dwyer, 116 F.4th 905, 910 (9th Cir.

2024) (quoting Hopson v. Alexander, 71 F.4th 692, 697 (9th

Cir. 2023)). Because this is an interlocutory appeal, our

jurisdiction is “limited to resolving a defendant’s purely

legal contention that his or her conduct did not violate the

Constitution and, in any event, did not violate clearly

established law.” Id. (quoting Est. of Anderson v. Marsh,

985 F.3d 726, 731 (9th Cir. 2021) (cleaned up). The scope

of our review is “circumscribed.” Foster v. City of Indio,

908 F.3d 1204, 1210 (9th Cir. 2018) (per curiam) (quoting

George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013)). “[W]e

must consider only ‘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.’” Rosenbaum v. City of San Jose,

107 F. 4th 919, 924 (9th Cir. 2024) (quoting Karl v. City of

Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012)).

We have jurisdiction under 28 U.S.C. § 1291 and the

collateral-order doctrine, see Plumhoff v. Rickard, 572 U.S.

765, 772 (2014). We affirm the district court’s order.

The qualified immunity doctrine “shields an official

from damages in a civil suit unless the plaintiff can make the

showing that the official’s actions violated a constitutional

right, and that the right was ‘clearly established’ at the time

of the violative conduct.” Nelson v. City of Davis, 685 F.3d

GONZALEZ V. CITY OF PHOENIX 11

867, 875 (9th Cir. 2012) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). Plaintiff must satisfy both prongs of

this test to overcome an officer’s qualified immunity

defense. Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110,

1115 (9th Cir. 2017) (citing Pearson v. Callahan, 555 U.S.

223, 236 (2009)). Because this interlocutory appeal arises

from Defendants’ motion for summary judgment, we

interpret the facts in the light most favorable to Plaintiff and

draw all rational inferences in Plaintiff’s favor, see Wall v.

Cnty. of Orange, 364 F.3d 1107, 1109 (9th Cir. 2004), unless

Plaintiff’s allegations are “blatantly contradicted” by the

officers’ bodycam video, Scott v. Harris, 550 U.S. 372, 380

(2007).

A.

Defendants contend that their placement and

transportation of Lopez in a RIPP restraint did not violate the

Fourth Amendment for two reasons. First, they argue that

these actions do not fall within the purview of the Fourth

Amendment’s prohibition against excessive force because

the officers did not use “force” when they placed Lopez into

a vehicle and transported him. Second, even if such actions

constituted force, Defendants maintain that such force was

objectively reasonable because of Lopez’s “active”

resistance, the officers’ “express purpose of protecting

[Lopez’s] safety and getting him medical care,” and the

absence of “evidence that Lopez was showing clear distress

when he was placed in the vehicle.”

We begin with Defendants’ contention that the officers

did not use force when they placed and transported Lopez

because the officers never applied additional pressure on

Lopez. Defendants’ argument misapprehends the nature of

the relevant Fourth Amendment inquiry. The text of the

12 GONZALEZ V. CITY OF PHOENIX

Amendment expressly describes unreasonable “seizures” as

the protected right: “The right of the people to be secure in

their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated.”

U.S. CONST. amend. IV. As the Supreme Court explains,

“[a] person is seized by the police and thus entitled to

challenge the government’s action under the Fourth

Amendment when the officer, by means of physical force or

show of authority, terminates or restrains his freedom of

movement through means intentionally applied.” Brendlin

v. California, 551 U.S. 249, 254 (2007) (quotations and

citations omitted).

So, the threshold inquiry under the Fourth Amendment

is whether the officers intentionally seized Lopez by

terminating or restraining his freedom of movement––not

whether the officers applied an additional quantum of

pressure in seizing him so as to constitute force. The

officers’ actions in placing and transporting Lopez in a RIPP

restraint are plainly encompassed within the meaning of the

Fourth Amendment because such physical restraint

terminated Lopez’s ability to move freely through means

intentionally applied. Once RIPP-restrained, the record

establishes that Lopez did not, and could not, freely move.

We conclude that the officers’ actions constitute a seizure

for Fourth Amendment purposes. 2

2

Even if Defendants were correct that an additional quantum of force

from the officers is required, the record establishes that the officers did

place additional pressure on Lopez. Officers Mosley, Stevens and

Jimenez lifted Lopez by his arms and legs and carried him to the patrol

vehicle. Officer Lingenfelter pulled Lopez’s body across the seat and

pushed Lopez’s shoulders inward to shut the car door. And the officers

positioned Lopez atop a hard plastic hump that divided two car seats,

GONZALEZ V. CITY OF PHOENIX 13

Defendants’ second contention—that the use of force or

restraint against Lopez was objectively reasonable as a

matter of law—is equally unavailing. Plaintiff has

established a genuine dispute of material fact as to whether

the officers’ use of force violated the Constitution. An

officer’s use of force violates the Fourth Amendment if it is

objectively unreasonable. Graham v. Connor, 490 U.S. 386,

397 (1989). To make that determination, we balance the

“extent of the intrusion on the individual’s Fourth

Amendment rights against the government's interests.”

Espinosa v. City & Cnty. of San Francisco, 598 F.3d 528,

537 (9th Cir. 2010) (citations omitted).

That analysis proceeds in three parts. First, we consider

the “severity of the intrusion” on the individual’s interests

“by evaluating the type and amount of force inflicted.” Id.

(quotations and citations omitted). Second, we “evaluate the

government’s interests by assessing (1) the severity of the

crime; (2) whether the suspect posed an immediate threat to

the officers’ or public’s safety; and (3) whether the suspect

was resisting arrest or attempting to escape.” Id. (citing

Graham, 490 U.S. at 396–97) (citation omitted). Third, we

“balance the gravity of the intrusion on the individual against

the government’s need for that intrusion” to determine

“whether the force used was greater than is reasonable.” Id.

(quotations and citations omitted). Because this balancing is

“inherently fact specific,” we have cautioned that “the

determination whether the force used to effect an arrest was

reasonable under the Fourth Amendment should only be

taken from the jury in rare cases.” Green v. City and Ctny.

of San Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014)

which exacerbated the pressure that Lopez’s body weight exerted against

itself.

14 GONZALEZ V. CITY OF PHOENIX

(quotations and citations omitted). We conclude that a

reasonable jury could determine that the officers’ use of a

RIPP restraint under the circumstances of this appeal

violated the Fourth Amendment.

i.

First, a reasonable jury could conclude that the officers’

use of force was significant, if not lethal. We have defined

lethal force as force “that creates a substantial risk of death

or serious bodily injury.” Bryan v. MacPherson, 630 F.3d

805, 825 n.6 (9th Cir. 2010) (citing Smith v. City of Hemet,

394 F.3d 689, 705–07 (9th Cir. 2005) (en banc)).

Plaintiff’s evidence shows that restraining a subject in a

hogtied position raises that subject’s risk of death through

positional asphyxia. Positional asphyxia occurs when an

individual’s body position restricts their ability to breathe,

causing a lack of oxygen. According to Plaintiff’s

cardiologist expert, Dr. Daniel Wohlgelernter, positional

asphyxia “is a well-known trigger of PEA [pulseless

electrical activity] and cardiac arrest.” Plaintiff’s police

expert Scott DeFoe explained that “[p]roperly trained

officers learn how improper restraining techniques” can lead

to this “life-threatening condition.”

Hogtying is one such improper form of restraint that can

cause positional asphyxia. Phoenix PD training materials

warn that “[h]og-tying is almost always listed as a

contributing factor [of sudden custody deaths] due to the

positional restraint position’s ability to aid in inducing

positional asphyxia.” That is because “[i]f [a] suspect is

placed in a hog-tied position, the neural center may not be

capable [of] fulfill[ing] oxygen demands.” For that reason,

the department training materials instruct officers: “Never

hog-tie anyone,” and “DO NOT SHORTEN THE STRAP

GONZALEZ V. CITY OF PHOENIX 15

OR WRAP AROUND THE SUSPECT’S ANKLES”

because doing so bends the subject into a hogtied position.

Indeed, as Officer Jimenez acknowledged at his deposition,

officers are “trained that you should not feed the RIPP

restraint all the way through [the handcuffs] and then attach

the hook to the ankles.” Instead, Officer Jimenez testified,

“what we’re trained to do” is to attach the RIPP restraint’s

brass hook “close to the handcuffs.”

Positioning a subject face down––even when properly

restrained––also increases their risk of positional asphyxia.

Face-down positioning can, according to DeFoe, cause a

subject’s breathing to become labored. Accordingly,

Phoenix PD training materials warn officers to “NEVER

ALLOW [a RIPP-restrained subject] TO REMAIN ON

THEIR CHEST OR STOMACH,” and directs officers to

“immediately” roll the subject into an upright seated

position. Phoenix PD operations orders likewise require

officers to “minimize the face-down exposure,” and, when

transporting RIPP-restrained subjects, require officers to

continually observe the subject and “pull [the vehicle] over”

to “move” them to an upright position if they fall down.

Other factors can exacerbate the risk of positional

asphyxia. Phoenix PD officers are taught that drug

intoxication heightens the likelihood of sudden custody

death. Drug intoxication is a “major risk factor” because, as

DeFoe explained, “respiratory drive is reduced” and

“subjects may not realize they are suffocating.” Dr.

Wohlgelernter similarly noted that methamphetamine draws

from the body’s oxygen supply, and creates a “state of

agitation,” that increases the body’s oxygen demand.

Physical struggle, especially in hot conditions, also

increases the subject’s risk of death. Like drug intoxication,

16 GONZALEZ V. CITY OF PHOENIX

physical exertion draws on the body’s oxygen reserves.

And, in hot conditions, significant physical exertion “can

generate heat beyond the ability to cool,” which, according

to Dr. Wohlgelernter, may cause a “loss of enzymatic control

[that] affects the functioning of major organs . . . such as the

heart and brain.” Consequently, exerted individuals “may

be more vulnerable to subsequent respiratory muscle

failure.”

All of these factors together create a high risk of sudden

death. Dr. Wohlgelernter explained that as drug intoxication

and physical exertion drain the body’s oxygen reserves and

heighten the body’s oxygen demands, “restraint in the prone

position” prevents the body from “increas[ing] [its]

ventilatory capacity to compensate for [these] increased

metabolic demands,” and this, in turn, results in “continued

carbon dioxide accumulation and development of lethal

metabolic acidosis.” Or, as the officers’ training materials

put more bluntly: “Drugs and/or alcohol plus wrestling

and/or arrest plus Hog-tie/restraint = Probable fatality =

LAW SUIT [sic].”

A reasonable jury thus could find that the officers’ use of

physical restraints against Lopez created a substantial risk of

death or serious bodily injury. The officers placed and

transported Lopez face down atop a hard plastic hump with

Lopez’s RIPP restraint hook attached to Lopez’s ankles,

which bent Lopez’s arms back and lifted his legs upward into

a hogtied position. Officer Jimenez admitted that, when he

“affixed the brass RIPP restraint [hook] to Ramon’s ankles,”

he “departed from [his own] training.” “These actions,”

according to Dr. Wohlgelernter, “carried a high risk of

restricting, to a critical degree, [Lopez’s] ability to breathe.”

GONZALEZ V. CITY OF PHOENIX 17

The officers did so when, according to Plaintiff, they

knew or should have known that Lopez faced a heightened

risk of death from other risk factors. Lopez had exerted

himself by running, struggled under the officers’ body

weight against the hot asphalt, and, as the officers believed,

was under the influence of drugs. Indeed, Plaintiff’s forensic

pathologist concluded that “but for the prone restraint and

prone positioning while Mr. Lopez was handcuffed and

RIPP restrained, there is no evidence to support the

conclusion that Ramon Timothy Lopez would have died

when he did.” Dr. Wohlgelernter agreed that “the restraint

applied to Timothy [Lopez] while he was prone and

handcuffed, in combination with the other draws on his

oxygen reserves (agitation, exertion, methamphetamine

intoxication, hyperthermia, and pain/discomfort from

forcible restraint), served as a highly probable trigger for the

cardiopulmonary arrest that resulted in his death.”

The record also establishes that the officers could see

Lopez’s risk of positional asphyxia manifest. True, a

reasonable officer cannot be expected to foresee every

outcome of his actions; reasonableness “must be judged

from the perspective of a reasonable officer on the scene”

and not from one with “the 20/20 vision of hindsight.”

Graham, 490 U.S. at 396. Still, a jury could determine that

a reasonable officer on the scene would have noticed that the

risks of Lopez’s positional asphyxia had already begun to

materialize by the time the officers lifted him into the patrol

vehicle. Lopez grunted and gasped before falling silent, his

skin turned an abnormal tone, and as multiple officers

acknowledged, his body became limp. Lopez “obviously

needed medical attention,” as Officer Cozad later admitted.

In short, Plaintiff has presented sufficient evidence

establishing that the officers’ use of force or restraint against

18 GONZALEZ V. CITY OF PHOENIX

Lopez was significant, if not lethal, and that the intrusion on

Lopez’s individual interests was therefore severe.

ii.

Second, a reasonable jury could determine that the

government’s interest in placing Lopez in the vehicle and

transporting him in a hogtied and prone position was

minimal. To assess the government’s interest, we 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.” Graham, 490 U.S. at 396.

The crime at issue was not severe. The officers

responded to a 911 call reporting that a man was behaving

oddly, not violently. Lopez committed civil traffic

violations when he crossed the street without using a

crosswalk and ran into traffic. See Ariz. Rev. Stat. §§ 28-

793, 28-121(B).

A reasonable jury could determine that, by the time the

officers placed and transported a RIPP-restrained Lopez in

the police vehicle, Lopez no longer resisted and posed no

threat to the officers. At the time Officers Mosley, Stevens,

Jimenez, and Lingenfelter lifted Lopez and carried him to

the vehicle, they had observed that Lopez was fully bound,

unarmed, and helpless. When Officers Cozad and Lopez

transported Lopez, he remained face down, handcuffed, and

RIPP-restrained in the back seat of the police vehicle. As

the district court concluded, even if Lopez once resisted the

officers’ attempts to subdue him, the body camera video

GONZALEZ V. CITY OF PHOENIX 19

footage “reflects that Lopez was no longer resisting after he

was RIPP restrained.” 3

Viewing the evidence in the light most favorable to

Plaintiff, a reasonable jury could conclude that the

government’s interest in placing and transporting Lopez in a

hogtied and prone position after his surrender was minimal.

See Bryan, 630 F.3d at 828–29 (“[T]he commission of a

misdemeanor offense . . . militates against finding the force

used to effect an arrest reasonable where the suspect was also

nonviolent and posed no threat to the safety of the officers

or others.” (quotations and citations omitted)).

iii.

Third, a reasonable jury could conclude that the force

used by the officers was greater than is reasonable under the

circumstances. Defendants contend that the officers’ force

was justified because they needed to get Lopez to safety, out

of the sun, and away from the busy street, but had limited

options because of Lopez’s continuing resistance. That

resistance, Defendants argue, occurred when Lopez “kicked

Officer Mosley while the Officers were placing him into the

vehicle and did not cooperate.” We reject this argument for

two reasons.

3

The district court determined that the officers’ initial detention of

Lopez was objectively reasonable because Lopez intentionally threw an

iced tea beverage at Officer Stevens while running away, constituting an

assault under Arizona law, and because Lopez ignored Officer Stevens’s

command to stop running. The court also determined that the officers’

initial application of a RIPP restraint was objectively reasonable because

Lopez struggled against the officers’ attempts to restrain him, failed to

roll over when commanded, and exhibited “extraordinary strength.”

Plaintiff reserves her right to appeal those determinations following a

final judgment in the matter.

20 GONZALEZ V. CITY OF PHOENIX

First, we do not agree that the officers’ subjective

motivations to “get Lopez to safety” justified their decision

to place and transport Lopez in a hogtied and face-down

position. The Supreme Court has cautioned that an

“officer’s good intentions” will not “make an objectively

unreasonable use of force constitutional.” See Graham, 490

U.S. at 397. Similarly, “a simple statement by an officer that

he fears for . . . the safety of others” or the “desire to resolve

quickly a potentially dangerous situation is not the type of

governmental interest that, standing alone, justifies the use

of force that may cause serious injury.” Deorle v.

Rutherford, 272 F.3d 1272, 1281 (2001).

Second, Defendants overlook that in this interlocutory

posture, “[a]ny decision by the district court that the parties’

evidence presents genuine issues of material fact is

categorically unreviewable on interlocutory appeal.”

George, 736 F.3d at 834 (quotations and citation omitted).

The district court determined that a genuine dispute of

material fact exists as to whether Lopez resisted the officers

or tried to kick Officer Mosley as he was carried into the

police vehicle. That dispute is not resolvable in this appeal.

Even if it were, the video evidence shows no “continuing

resistance” by Lopez after he was RIPP-restrained.

Plaintiff has established a genuine dispute of material

fact as to whether the officers’ application of near-lethal

force and the government’s minimal interest in using that

force was reasonable under the circumstances. As the

district court underscored, “there were other, less dangerous,

ways of transporting Lopez that were readily available to the

Officers.” The officers’ own police department training

materials and operational orders offer a few: the officers

could have, for example, modified Lopez’s RIPP restraint to

its intended position by attaching the restraint’s hook to

GONZALEZ V. CITY OF PHOENIX 21

Lopez’s handcuffs instead of his ankle strap; or, the officers

could have positioned Lopez upright in the back seat of the

vehicle. They could have, as the district court observed,

“simply carr[ied] him to one of the many businesses

surrounding the road” to get him out of the sun and away

from traffic. Defendants do not offer a compelling

justification for their decision to instead place and transport

Lopez in a hogtied and face-down position when Lopez

showed signs of medical distress.

Under Graham, a reasonable jury could determine that

the officers violated Lopez’s constitutional rights by placing

and transporting him in a hogtied and prone position after he

had surrendered and no longer posed a danger to the officers

or a risk of flight.

B.

Under the second prong of the qualified immunity

analysis, we examine whether the officers’ constitutional

violation was clearly established. Police officers are entitled

to qualified immunity unless they “violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Harlow, 457 U.S. at

818. While the clearly established requisite does not require

“a case directly on point, existing precedent must place the

lawfulness of the particular [action] beyond debate.” Dist.

of Columbia v. Wesby, 583 U.S. 48, 64 (2018) (quotations

and citation omitted). Indeed, “even in novel factual

circumstances,” the Supreme Court has recognized,

“[o]fficials can still be on notice that their conduct violates

established law.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).

See also Drummond, 343 F.3d at 1060‒61 (“[I]t is not

necessary that the alleged acts have been previously held

unconstitutional, as long as the unlawfulness was apparent

22 GONZALEZ V. CITY OF PHOENIX

in light of existing law.”). The “salient question” is “whether

the state of the law [at the time of the alleged misconduct]

gave respondents fair warning that their alleged treatment of

[the subject] was unconstitutional.” Hope, 536 U.S. at 741.

We hold that existing precedent gave the officers fair

warning that their decision to place and transport Lopez in a

prone and RIPP-restrained position after his surrender,

subjecting him to a significant risk of death or serious bodily

injury from positional asphyxia, was unconstitutional.

It is a well-worn principle in our law that when “there is

no need for force, any force used is constitutionally

unreasonable.” Lolli v. Cnty. of Orange, 351 F.3d 410, 417

(9th Cir. 2003) (citations omitted); see also Blankenhorn v.

City of Orange, 485 F.3d 463, 481 (9th Cir. 2007) (“[F]orce

is only justified when there is a need for force”); Green, 751

F.3d at 1049 (“Where [government] interests do not support

a need for force, any force used is constitutionally

unreasonable.” (quotations and citation omitted)).

This principle carries added significance when the force

applied by officers is lethal. See Harris v. Roderick, 126

F.3d 1189, 1204 (9th Cir. 1997) (stating that officers may

not “kill suspects who do not pose an immediate threat to

their safety or to the safety of others.”). Indeed, force that

“create[s] a substantial risk of serious injury or death,” we

have explained, “generally can’t be used on a prone suspect

who exhibits no resistance, carries no weapon, is surrounded

by sufficient officers to restrain him and is not suspected of

a violent crime.” Jones v. Las Vegas Metro. Police Dep’t,

873 F.3d 1123, 1131–32 (9th Cir. 2017).

We have applied this principle to hold that an officers’

continued pressure against a prone, handcuffed, hobble-

restrained subject was excessive. In Drummond, we

GONZALEZ V. CITY OF PHOENIX 23

concluded that officers used excessive force against an

unarmed, mentally ill man when they placed him face down

with his wrists handcuffed behind his back, tied a hobble

restraint around his ankles, and continued to press their body

weight against his upper body, even as he told the officers

that he could not breathe––all of which caused compression

asphyxia that left the arrestee in a vegetative state. 343 F.3d

at 1054‒55.

In Drummond, we held that “[i]n a situation in which an

arrestee surrenders and is rendered helpless, any reasonable

officer would know that a continued use of force or a refusal

without cause to alleviate its harmful effects constitutes

excessive force.” Id. at 1062 (quoting LaLonde, 204 F.3d at

961) (cleaned up). We reasoned that, because the arrestee’s

“hands were cuffed behind his back and he was offering no

resistance,” “[a]ny reasonable officer should have known”

that the officers’ “continuing” pressure on the arrestee’s

neck and torso despite his “repeated cries for air” constituted

excessive force. Id. at 1061.

Drummond clearly established that Defendants’ actions

here violated the Fourth Amendment. As in Drummond,

Lopez was rendered helpless when he lay prone with his

wrists handcuffed behind his back and a hobble restraint

around his ankles, though here the two restraints hooked

together to bind Lopez even more tightly. And, the officers

continued to use force and refused without cause to alleviate

its harmful effects. Officers Mosley, Stevens, Jimenez, and

Lingenfelter placed Lopez in a face-down, hogtied position

without modifying his restraints or repositioning him. And

once Officers Cozad and Lopez took custody of Lopez, they

did not modify his restraints or reposition him during the

transport. The harmful effects of that force were readily

observable to all the officers present. The officers noticed

24 GONZALEZ V. CITY OF PHOENIX

that Lopez, who had once gasped and grunted, had gone

silent, multiple officers described Lopez’s body as limp, and

as Officer Cozad later admitted, Lopez “obviously needed

medical attention.”

Although the officers in Drummond pressed their body

weight on an arrestee by kneeling on the arrestee’s upper

body, the state of the law nevertheless gave Defendants a

clear warning that their conduct was unconstitutional. Id. at

1063. Here, the officers’ decision to maintain Lopez in an

improperly-restrained position created similar pressure on

his upper body. Placing Lopez’s body in a hogtied and prone

position across a hard plastic hump caused Lopez’s own

body weight to exert significant force upon his chest,

inducing positional asphyxia. In both cases, the officers

continued to exert pressure––whether from kneeling or

maintaining tightly-connected restraints––on a prone and

helpless subject bound by handcuffs and hobble restraints.

Other precedent supports our analysis. We have

repeatedly held that force can be unreasonable when undue

pressure caused by physical restraints is not alleviated. See

Wall, 364 F.3d at 1112 (officers used excessive force “in

making the arrest and continuing the restraint by handcuffs

that hurt and damaged [arrestee’s] wrist.” (emphasis

added)); LaLonde, 204 F.3d at 960 (allegations that officers

“tightly handcuffed [arrestee] and refused to loosen the cuffs

when he complained” raised a factual dispute on plaintiff’s

excessive force claim (emphasis added)); Meredith v. Erath,

342 F.3d 1057, 1063 (9th Cir. 2003) (“[T]o place and keep

[arrestee] in handcuffs that were so tight that they caused her

unnecessary pain violated her Fourth Amendment right to be

free from an unreasonable seizure.” (emphasis added));

Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993)

(officers used excessive force because defendant “has

GONZALEZ V. CITY OF PHOENIX 25

presented no evidence that would justify handcuffing

[arrestee] so tightly that he suffered pain and bruises, or to

justify his refusal to loosen the handcuffs after [arrestee]

complained” (emphasis added)).

Defendants’ efforts to avoid these precedents are

unpersuasive. Defendants say that, unlike the injurious

restraint cases, Lopez did not ask the officers to remove his

RIPP restraints and handcuffs––yet the evidence establishes

that the officers could see that Lopez was in medical distress.

We likewise reject Defendants’ contention that “[a] case

regarding overly tight handcuffing cannot clearly establish

whether it would violate Lopez’s constitutional rights to

place him in a vehicle in a prone position with a RIPP

restraint for a one-minute ride across the street.” Our

caselaw on the constitutional limits of less intrusive

restraints, like handcuffing, may still provide notice to

officers employing far more intrusive restraints, like RIPP

restraints, when their unreasonable application can result in

death rather than just a painful encounter. See Hope, 536

U.S. at 741 (“[O]fficials can still be on notice that their

conduct violates established law even in novel factual

circumstances.”). In any event, our precedent on physical

restraints merely reinforces the fair warning that flows from

Drummond’s holding: an officer’s continued application of

force––whether from an officer’s body or the physical

restraints that press the subject’s body upon itself––against

a prone subject who appears distressed and has been

rendered helpless, is unconstitutional.

Tellingly, the officers here were actually warned that

their actions unreasonably endangered Lopez. We have

explained that training materials may be “relevant” as to

“whether reasonable officers would have been on notice that

the force employed was objectively unreasonable.”

26 GONZALEZ V. CITY OF PHOENIX

Drummond, 343 F.3d at 1062. As in Drummond, “the

officers received training from their own police department

explaining specifically that . . . asphyxia can result . . . [in]

causing death.” Id. at 1061–62. Defendants violated their

own training, which instructed them to “never hogtie

anyone,” and ordered them to roll any RIPP-restrained

individual into a seated position instead of leaving them face

down. Officer Jimenez admitted that he “departed from [his

own] training.” Even if the officers’ own training did not

expressly prohibit the officers’ actions, our precedent made

clear to them that the Constitution did.

We reject Defendants’ contention that the district court

improperly conflated its analyses of the force used by the

officers who placed Lopez in the police vehicle with the

officers who transported Lopez. The district court analyzed

the objective reasonableness of the discrete acts committed

by both sets of officers and applied caselaw clearly

establishing that those actions violated the Fourth

Amendment. The district court’s approach was proper

because we have routinely examined the circumstances in

which restraints were applied and maintained alongside the

failure to alleviate the harmful effects of those restraints.

See, e.g., LaLonde, 204 F.3d at 960; Wall, 364 F.3d at 1112;

Meredith, 342 F.3d at 1063.

Our dissenting colleague commits a similar analytical

error. While our colleague agrees that qualified immunity

should be denied for the officers involved in placing Lopez

in the police vehicle face down in a RIPP-restrained and

hogtied position, he concludes that the two officers who

transported Lopez a short distance away should be entitled

to qualified immunity. Our colleague reasons that “no case

clearly establishes that merely driving a car a short distance

with an improperly restrained suspect violates the

GONZALEZ V. CITY OF PHOENIX 27

Constitution.” But the actions of Officer Lopez and Officer

Cozad cannot be segmented away so neatly. Rather, use of

force analysis requires consideration of the “totality of the

circumstances.” Graham, 490 U.S. at 396.

The totality of the circumstances shows that, like the

officers who placed Lopez into the police vehicle, Officer

Cozad and Officer Lopez refused to alleviate the harmful

effects of unreasonable force on a helpless subject––here,

the force of an improperly-applied RIPP restraint that

exerted significant pressure on Lopez’s chest and

unnecessarily created a substantial risk of death. Like the

other officers, Officer Cozad and Officer Lopez were present

when Lopez was lifted into their police vehicle in a RIPP-

restrained position and moved face down over a plastic

hump in the back seat of the car. Like the other officers,

Officer Cozad and Officer Lopez could see that Lopez was

helpless, limp, and in medical distress. And, like the other

officers, Officer Cozad and Officer Lopez were trained

never to shorten the RIPP restraint straps or to leave a subject

lying face down in a RIPP-restrained position. Instead,

Officer Cozad and Officer Lopez were trained, when

transporting a RIPP-restrained subject, to continually

observe them and immediately pull the vehicle over if the

subject falls from an upright position. Yet the evidence at

this stage shows that neither officer modified Lopez’s

positioning or sat him upright.

As the Supreme Court observes, our clearly established

law analysis must proceed based on Plaintiff’s allegations

rather than Defendants’ framing of the evidence. The

Supreme Court has emphasized “the importance of drawing

inferences in favor of the nonmovant” when deciding “the

clearly-established prong” of the qualified immunity

analysis. Tolan v. Cotton, 572 U.S. 650, 657 (2014). Courts

28 GONZALEZ V. CITY OF PHOENIX

must “define the ‘clearly established’ right at issue on the

basis of the ‘specific context of the case[,]’” and therefore,

“must take care not to define a case’s ‘context’ in a manner

that imports genuinely disputed factual propositions.” Id.

(citations omitted).

So, here, the qualified immunity analysis does not boil

down to a case about “driving a suspect” a short distance

away, as Defendants and our dissenting colleague frame the

issue. Rather, we define the context of our clearly

established law inquiry based on Plaintiff’s allegations and

evidence, which establish that Officer Cozad and Officer

Lopez took custody of Lopez and assumed full responsibility

for his safety, and that Officer Cozad and Officer Lopez

transported Lopez in a face-down, hogtied position without

modifying his restraints or repositioning him. The officers’

continued application of force and failure to alleviate the

harmful effects of the RIPP restraint against a prone subject

who was in medical distress and had been rendered helpless,

is unconstitutional. Drummond, 343 F.3d at 1062.

***

Under the circumstances of this interlocutory appeal, any

reasonable officer would have known that the officers’

actions violated Lopez’s clearly established constitutional

rights. We conclude that the district court properly denied

Defendants qualified immunity for Officers Mosley,

Stevens, Jimenez, and Lingenfelter’s placement of Lopez

into the vehicle in a hogtied and prone position, and Officers

Cozad and Lopez’s transportation of Lopez under the same

restrained conditions.

AFFIRMED; REMANDED for further proceedings.

GONZALEZ V. CITY OF PHOENIX 29

BUMATAY, Circuit Judge, concurring in the judgment in

part and dissenting in part:

No doubt, this case presents tragic facts. Three Phoenix

police officers responded to a 911 call about a man acting

erratically. When they arrived on the scene, they found

Ramon Timothy Lopez—paranoid and spooked. At some

point, Lopez took off running. After a chase and a struggle,

the officers tackled him in the middle of a road. But Lopez

still didn’t comply. After more officers showed up, they

were finally able to subdue Lopez. They used what’s called

a “RIPP restraint”—a device that loops a person’s ankles to

his handcuffs. The result is something close to hogtying the

person. While effective in stopping a resisting suspect, it is

widely known to be dangerous. If a person is left prone on

his stomach while in a RIPP restraint, he may asphyxiate and

die.

That’s what one side says happened. After officers

placed Lopez in the RIPP restraint, they carried him to the

backseat of a police Tahoe. There, they placed him face-

down over a hard plastic console with his hands cuffed and

his legs curled up. The officers didn’t sit him up as required

to prevent asphyxiation. Minutes later, Lopez was found

unresponsive. Officers did their best to revive him, and the

fire department quickly gave him medical attention.

Unfortunately, their efforts failed, and Lopez was

pronounced dead at a local hospital. His cause of death:

“[c]ardiac arrest in the setting of methamphetamine

intoxication, dilated cardiomyopathy and physical restraint.”

Though the initial use of the RIPP restraint was

reasonable, I agree with the majority that the officers who

left Lopez prone on his stomach while effectively hogtied in

the back of the Tahoe are not entitled to qualified immunity.

30 GONZALEZ V. CITY OF PHOENIX

Simply, leaving a subdued, non-dangerous suspect in a

position with a high risk of asphyxiation would violate

clearly established law. See Drummond ex rel. Drummond

v. City of Anaheim, 343 F.3d 1052, 1062 (9th Cir. 2003)

(observing 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”).

Two other officers, however, had a different role in the

events. Officers Alonso Lopez and Bobbi Cozad didn’t

subdue Lopez, place the RIPP restraint on him, or carry him

into the Tahoe. They didn’t leave Lopez prone on his

stomach in the backseat. While other officers handled

Lopez, all Officers Lopez and Cozad did was drive the

Tahoe to a nearby Walgreens’ parking lot—which took no

more than two minutes. In fact, they didn’t interact with

Lopez until they found him unconscious and administered

first aid.

I would have granted qualified immunity to Officers

Lopez and Cozad. No case clearly establishes that merely

driving a car a short distance with an improperly restrained

suspect violates the Constitution. This action—transporting

a suspect—is very different from the actions of officers who

actively continued to use what allegedly amounted to deadly

force on Lopez.

I respectfully dissent from the denial of qualified

immunity for Officers Lopez and Cozad.

I.

We do not deny qualified immunity in gross. Qualified

immunity analysis must be “conducted separately for each

search or seizure that is alleged to be unconstitutional.”

GONZALEZ V. CITY OF PHOENIX 31

Cnty. of Los Angeles, Cal. v. Mendez, 581 U.S. 420, 428

(2017). And liability “may not be imposed based on a ‘team

effort theory that would . . . lump all the defendants

together.” Peck v. Montoya, 51 F.4th 877, 890 (9th Cir.

2022) (simplified). That’s because “[l]iability requires at

least enough individual involvement from each defendant to

put him on notice that his conduct might reasonably lead to

a constitutional violation.” Id. at 891. So qualified

immunity analysis demands that “each individual’s liability”

be based “on his own conduct.” Id. at 890. Only then can

we determine “whether the violative nature of particular

conduct is clearly established.” Id. at 891 (simplified). So

the clearly established prong of qualified immunity must be

analyzed officer by officer.

The Ninth Circuit has struggled to apply clearly

established law properly in the past. See Kisela v. Hughes,

584 U.S. 100, 104 (2018) (“This Court has repeatedly told

courts—and the Ninth Circuit in particular—not to define

clearly established law at a high level of generality.”)

(simplified). For a right to be clearly established, it must be

“sufficiently clear that every reasonable officer would have

understood that what he is doing violates that right.”

Mullenix v. Luna, 577 U.S. 7, 11 (2015) (simplified).

And specificity “is especially important in the Fourth

Amendment context” considering how “difficult” it can be

“for an officer to determine how . . . excessive force[] will

apply to the factual situation [he] confronts.” Id. at 12

(simplified). So “[c]ases cast at a high level of generality are

unlikely to establish rights with the requisite specificity.”

Waid v. Cnty. Of Lyon, 87 F.4th 383, 388 (9th Cir. 2023)

(simplified). Rather, “police officers are entitled to qualified

immunity unless existing precedent squarely governs the

specific facts at issue.” Kisela, 584 U.S. at 104.

32 GONZALEZ V. CITY OF PHOENIX

The actions of the individual officers here were distinct

and should have been analyzed differently. No clearly

established law shows that the two transporting officers

violated Lopez’s constitutional rights. They are thus entitled

to qualified immunity.

A.

Lopez’s estate tries to sidestep the “clearly established”

inquiry completely by proclaiming the transporting officers’

alleged constitutional violation was “obvious.” But that’s

wrong. The “obviousness principle” serves as “an exception

to the specific-case requirement” for qualified immunity.

Sharp v. County of Orange, 871 F.3d 901, 912 (9th Cir.

2017). But it’s an exceedingly high bar to meet. We require

Fourth Amendment violations to be “beyond debate” to be

considered obvious. Waid, 87 F.4th at 388 (simplified).

That’s because obviousness is “especially problematic in the

Fourth-Amendment context,” which poses so many factually

distinct situations that “a categorical statement that conduct

obviously violates the Fourth Amendment ‘is particularly

hard to make[.]’” Id. (simplified). So barring “exceedingly

rare circumstances with extreme facts,” id. at 389,

obviousness can’t be used to dispense with the “clearly

established law” prong.

We’ve recently recounted the cases showing the

“extreme facts” needed to establish obviousness:

• Seizing persons for over five hours

because they witnessed a crime with no

justification;

• Arresting a sixth-grade student even

though the child was compliant,

GONZALEZ V. CITY OF PHOENIX 33

committed no wrongdoing, and posed no

threat to anyone; and

• Shooting and killing a suspect holding a

baseball bat even though he was not

facing the officer and was not threatening

anyone.

Id. at 389 (simplified).

Here, Officers Lopez and Cozad didn’t participate in

subduing Lopez, they didn’t take part in shackling him with

the RIPP restraint, and they didn’t place him in the backseat

of the Tahoe. All they did was transport Lopez a short

distance after other officers took control of him. While they

might have been negligent in not checking on Lopez, they

didn’t actively harm him. Briefly transporting a suspect

improperly restrained by other officers is not the rare case

excusing the “specific-case requirement” for qualified

immunity. Sharp, 871 F.3d at 912.

B.

With obviousness dispensed with, Lopez’s estate must

point to a case showing that driving a vehicle with an

improperly restrained suspect clearly violates a

constitutional right. Instead, all we get are cases standing for

the broadest proposition that “a continued use of [force] or a

refusal without cause to alleviate its harmful effects

constitutes excessive force.” Drummond, 343 F.3d at 1062;

see also Wall v. Cnty. of Orange, 364 F.3d 1107, 1112 (9th

Cir. 2004); LaLonde v. Cnty. of Riverside, 204 F.3d 947, 960

(9th Cir. 2000); Meredith v. Erath, 342 F.3d 1057, 1063 (9th

Cir. 2003); Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.

1993).

34 GONZALEZ V. CITY OF PHOENIX

None of these cases comes close to putting Officers

Lopez and Cozad on notice that their actions clearly violated

the Fourth Amendment. In Drummond, officers allegedly

crushed the plaintiff with their body weight to the point of

suffocating him—even though he wasn’t resisting and he

told officers they were choking him. 343 F.3d at 1061–62.

In Wall, the officers cuffed a plaintiff so brutally the cuffs

“hurt and damaged [his] wrist”—refusing to loosen them

after he begged the officers for help several times. 364 F.3d

at 1110, 1112. Similarly, in LaLonde, officers left a plaintiff

tightly handcuffed with pepper spray burning his face for

over 20 minutes even after he stopped resisting. 204 F.3d at

951–52. In Meredith, the officer grabbed a plaintiff by her

arms, threw her to the ground, and twisted her arms to cuff

her—later not loosening the cuffs for thirty minutes, even

after she complained of their tightness several times. 342

F.3d at 1060. And Palmer involved an “abusive application

of handcuffs” following a seizure that left Palmer with “pain

and bruises.” 9 F.3d at 1436. In all these cases, officers

placed the plaintiffs in restraints and then refused to loosen

them after the plaintiffs complained.

These cases are qualitatively different than driving a

suspect subdued and restrained by other officers a short

distance. Transportation doesn’t involve the same active

participation in restraining as in Drummond, Wall, LaLonde,

Meredith, and Palmer. Rather, driving Lopez while he lay

prone in the backseat gave the officers only a brief and

indirect connection to restraining Lopez. And Officers

Lopez and Cozad never refused to alleviate restraints as in

GONZALEZ V. CITY OF PHOENIX 35

those cases. 1 So they didn’t actively and continuously

participate in restraining Lopez. Without excusing Officers

Lopez and Cozad’s failure to ensure that Lopez was properly

transported, these cases do not show a violation of clearly

established law. Applying these cases here would set clearly

established law at too high a level of generality.

The majority’s choice to conflate the actions of Officers

Lopez and Cozad with the other officers’ is wrong on both

the law and the facts.

First, the facts. It’s uncontested that Officers Lopez and

Cozad didn’t apply the RIPP restraint or place Lopez in the

car face-down. In fact, they didn’t touch him at all until they

took him out of the car, at which point they did everything

they could to help him. They also never spoke to him during

the entire interaction. Thus, it’s misleading to suggest they

affirmatively ignored Lopez’s pleas and refused to alleviate

the restraints—other officers were responsible for him at all

times except for the short two-minute drive. The totality of

the circumstances shows that they were backup or secondary

officers to the actions of other officers. So there’s nothing

in Officers Lopez and Cozad’s actions that violated Lopez’s

rights. Instead, the majority tries to pin a constitutional

violation on them for merely being in the vicinity of the other

officers’ actions.

Second, the law. None of the cases cited by the majority

involved two sets of officers—one set of restraining officers

and another set of transporting officers. Neither do these

cases ascribe liability simply for being near an alleged

1

Of course, this is not to fault Lopez, who potentially couldn’t speak up

for himself at this point. This is only to point out that Officers Lopez

and Cozad didn’t ignore pleas for help as in the other cases.

36 GONZALEZ V. CITY OF PHOENIX

constitutional violation committed by other officers.

Instead, the line of cases the majority relies on uniformly

involves an officer’s actions in “making the arrest and

continuing the restraint.” Wall, 364 F.3d at 1112 (emphasis

added). None show that the mere presence of nearby

officers also constitutes a violation. The majority needed to

find case law specific to Officers Lopez and Cozad’s

conduct. It hasn’t.

To the extent the majority claims that we must accept a

plaintiff’s framing of the qualified immunity question, that’s

incorrect. While it’s true that we must “draw[] inferences in

favor of the nonmovant,” Tolan v. Cotton, 572 U.S. 650, 657

(9th Cir. 2014), that doesn’t mean that we must ignore the

undisputed facts of the case. It just means that we resolve

all disputed facts in a plaintiff’s favor. Doing so neither

commands—nor permits—construing two analytically

distinct acts as one single act. So nothing compels us to

accept any particular framing of a case. And no framing of

the facts can get around that no clearly established law shows

that Officers Lopez and Cozad committed a constitutional

violation.

II.

The facts here are gut-wrenching. But our justice system

requires—and the Supreme Court has repeatedly

instructed—that we analyze separate acts distinctly and not

set clearly established law at too high a level of generality

when we conduct the qualified immunity analysis. I

respectfully dissent.