Daniella Slater v. Shannon Deasey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIELLA SLATER; DAMIEN SLATER, No. 17-56708

individually and as successors in

interest, by and through their D.C. No.

Guardian ad Litem Sandra Salazar; 5:16-cv-01103-

TINA SLATER; DAVID BOUCHARD, JFW-KK

individually,

Plaintiffs-Appellants,

v.

SHANNON DEASEY, Deputy;

previously erroneously named as

Shandon Deasey; PETER GENTRY,

Deputy; GARY BRANDT, Deputy;

MIKE RUDE, Sgt.; COUNTY OF SAN

BERNARDINO; DOES, 1–10, Inclusive,

Defendants-Appellees.

2 SLATER V. DEASEY

DANIELLA SLATER; DAMIEN SLATER, No. 17-56751

individually and as successors in

interest, by and through their D.C. No.

Guardian ad Litem Sandra Salazar; 5:16-cv-01103-

TINA SLATER; DAVID BOUCHARD, JFW-KK

individually,

Plaintiffs-Appellees,

ORDER

v.

SHANNON DEASEY, Deputy;

previously erroneously named as

Shandon Deasey; PETER GENTRY,

Deputy; GARY BRANDT, Deputy;

MIKE RUDE, Sgt.; COUNTY OF SAN

BERNARDINO,

Defendants-Appellants.

Filed December 3, 2019

Before: Jacqueline H. Nguyen and John B. Owens, Circuit

Judges, and John Antoon II, * District Judge.

Order;

Dissent by Judge Collins

*

The Honorable John Antoon II, United States District Judge for the

Middle District of Florida, sitting by designation.

SLATER V. DEASEY 3

SUMMARY **

Civil Rights

The panel denied a petition for panel rehearing and

denied a petition for rehearing en banc on behalf of the court,

and ordered that no further petitions shall be entertained.

Dissenting from the denial of rehearing en banc, Judge

Collins, joined by Judges Bea, Ikuta, and Bress, stated that

in holding that the police officers in this case violated clearly

established law when they restrained Joseph Slater in the

back of a patrol car, allegedly causing his death, the panel

continued this court’s troubling pattern of ignoring the

Supreme Court’s controlling precedent concerning qualified

immunity in Fourth Amendment cases. Judge Collins stated

that Plaintiffs had the burden to find a controlling precedent

that squarely governed the specific facts of this case. They

failed to carry that burden, and the district court’s grant of

summary judgment on qualified immunity grounds should

have been affirmed.

**

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

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

4 SLATER V. DEASEY

ORDER

The panel voted to deny Defendants’ petition for panel

rehearing. Judges Nguyen and Owens voted, and Judge

Antoon recommended, to deny Defendants’ petition for

rehearing en banc.

The full court was advised of the petition for rehearing

en banc. A judge requested a vote on whether to rehear the

matter en banc. The matter failed to receive a majority of

the votes of the nonrecused active judges in favor of en banc

consideration. See Fed. R. App. P. 35.

The petition for panel rehearing and the petition for

rehearing en banc are denied. No future petitions for

rehearing or rehearing en banc will be entertained.

COLLINS, Circuit Judge, with whom BEA, IKUTA, and

BRESS, Circuit Judges, join, dissenting from the denial of

rehearing en banc:

In holding that the police officers in this case violated

clearly established law when they restrained Joseph Slater in

the back of a patrol car, allegedly causing his death, the panel

continues this court’s troubling pattern of ignoring the

Supreme Court’s controlling precedent concerning qualified

immunity in Fourth Amendment cases. Indeed, over just the

last ten years alone, the Court has reversed our denials of

qualified immunity in Fourth Amendment cases at least a

half-dozen times, often summarily. By repeating—if not

outdoing—the same patent errors that have drawn such

repeated rebukes from the high Court, the panel here once

again invites summary reversal. I respectfully dissent from

our failure to rehear this case en banc.

SLATER V. DEASEY 5

Two particular features of the panel’s decision

underscore its neglect of binding Supreme Court authority.

First, in addressing whether the relevant law was “clearly

established,” the panel disregarded the Court’s clear

instruction that, in Fourth Amendment excessive force cases,

“police officers are entitled to qualified immunity unless

existing precedent ‘squarely governs’ the specific facts at

issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)

(citation omitted) (emphasis added). There is no such

squarely governing precedent here, and the panel did not

claim there was. Instead, the panel simply ignored Kisela

(and all of our other recent reversals in Fourth Amendment

qualified immunity cases) and denied qualified immunity

based on its identification of a single Ninth Circuit

decision—Drummond ex rel. Drummond v. City of Anaheim,

343 F.3d 1052 (9th Cir. 2003)—that the panel concluded

was “sufficiently analogous” to this case. See Slater v.

Deasey, Mem. Dispo. at 7 (amending 776 F. App’x 942 (9th

Cir. 2019)). In applying this lesser “sufficiently analogous”

standard, the panel committed the very same error for which

we were summarily reversed in Kisela. See 138 S. Ct.

at 1151 (Ninth Circuit had denied qualified immunity

“because of Circuit precedent that the court perceived to be

analogous”).

Second, the panel violated governing Supreme Court

authority when it extracted from Drummond a “clearly

established” rule that is framed at a much higher level of

generality than Drummond itself. As the Supreme Court has

stated, with evident exasperation, “[w]e have repeatedly told

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

clearly established law at a high level of generality.” City &

Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1775–76

(2015) (citations and internal quotation marks omitted).

Despite professing to “‘hear the Supreme Court loud and

6 SLATER V. DEASEY

clear,’” Slater, Mem. Dispo. at 6 (citation omitted), the panel

is jurisprudentially a bit deaf, because its decision here

significantly raised the level of generality of the rule in

Drummond, and in doing so, it overlooked critical

differences between Drummond and this case.

The Plaintiffs’ claim in this tragic case is that, by using

“hobbles” (a form of restraining belt) to prevent Slater from

moving around in the patrol car, and by applying brief

incidental pressure to Slater while applying the hobbles, the

officers caused him to suffer “positional or restraint

asphyxia,” resulting in his death. According to the panel, the

officers were not entitled to qualified immunity for these

actions because “[i]n Drummond, we clearly established that

‘squeezing the breath from a compliant, prone, and

handcuffed individual . . . involves a degree of force that is

greater than reasonable.’” Slater, Mem. Dispo. at 6 (quoting

Drummond, 343 F.3d at 1059) (ellipses in original). But this

statement literally elides critical differences between this

case and Drummond by improperly using ellipses to

generalize Drummond’s much more specific holding that

“any reasonable person” should have known that “squeezing

the breath from a compliant, prone, and handcuffed

individual despite his pleas for air involves a degree of force

that is greater than reasonable.” 343 F.3d at 1059 (emphasis

added). That critical feature of Drummond is missing here:

in this case, once the officers noticed that Slater appeared to

be in trouble, they promptly summoned paramedics (who

had examined Slater earlier and were still on the scene).

Moreover, Drummond differs in a second crucial respect,

inasmuch as the nature and extent of the force applied by the

officers in the two cases are very different. While the two

officers in Drummond literally “squeez[ed] the breath” from

Drummond by “press[ing] their weight against his torso and

neck, crushing him against the ground” for a “substantial

SLATER V. DEASEY 7

period of time,” 343 F.3d at 1059–60 & n.7, the specific

challenged actions of the officers here did not involve any

such direct, sustained compression with the officers’ body

weight. Instead, Plaintiffs claim that the manner in which

the hobbles were applied put Slater in a position such that,

coupled with the brief incidental pressure placed on his back

during securing of the hobbles, he was at risk of “positional

or restraint asphyxia.” Given these significant distinctions,

Drummond cannot be described as “‘squarely govern[ing]’

the specific facts at issue.” Kisela, 138 S. Ct. at 1153

(citation omitted).

Under the qualified immunity standards that have been

clearly established by the Supreme Court, the district court’s

dismissal of this action should have been affirmed. I dissent

from our failure to rehear this case en banc.

I

Because Fourth Amendment excessive force claims

“depend[] very much on the facts of each case,” Mullenix v.

Luna, 136 S. Ct. 305, 309 (2015) (citation and internal

quotation marks omitted), it is important to review in some

detail the specific alleged actions of the officers that are

challenged in this § 1983 suit.

A

On April 15, 2015, sometime around 1:00 AM, Deputy

Sheriff Shannon Deasey of the County of San Bernardino

Sheriff’s Department responded to a radio call that a man

was pulling out wires from a Valero gas station building in

8 SLATER V. DEASEY

Highland, California. 1 After Deasey arrived at the Valero

station, he saw a man who fit the radioed description

crouched down near the front of the gas station. Deasey

immediately recognized the man as Slater. Deasey

personally knew, from multiple prior encounters, that Slater

had a history of mental illness and drug use.

Deasey identified himself to Slater and asked him what

he was doing, but Slater would not respond and instead

appeared “mesmerized” by a nearby electronic display

screen. Deasey handcuffed Slater without resistance and,

after walking Slater over to the police car, Deasey opened

the door and asked him to sit down. Slater sat down

sideways, with his feet outside the vehicle, but he resisted

placing his feet in the car. Slater became paranoid,

repeatedly denying that Deasey was a cop and saying that he

believed Deasey was going to kill him. When Slater refused

Deasey’s repeated commands to slide into the car, Deasey

threatened to use pepper spray on Slater, and then twice did

so. Ultimately, Deasey could not restrain Slater, and he

pulled him out of the car. Deasey instead attempted to

restrain Slater on the ground, and he again used his pepper

spray. Deasey then used a “knee strike” to get Slater to stop

resisting; the parties dispute whether the knee strike was on

Slater’s lower back or his buttocks/thigh area. Deasey

radioed for backup, and he also asked for a medical unit.

Deputy Pete Gentry arrived next on the scene, and he

saw Slater on the ground moving his feet back and forth

1

Because much of the incident was captured on the Valero station’s

cameras, and parts were also audio recorded on Deasey’s belt recorder,

many of the core facts of the incident are undisputed. Where the parties’

inferences from the video and audio evidence or deposition testimony

differ, I have relied on Plaintiffs’ version. See Tolan v. Cotton, 572 U.S.

650, 651 (2014).

SLATER V. DEASEY 9

while Deasey attempted to restrain him. Gentry suggested

that Deasey get a “hobble,” a form of belt used in restraining

detainees, and Gentry grabbed hold of Slater while Deasey

went to retrieve a hobble from his vehicle. When Deasey

returned, Gentry ultimately shifted positions and ended up

with his knee across Slater’s shoulderblades for about

40 seconds, while Slater was on his stomach on the ground.

After Gentry removed his knee from Slater’s back, Slater lay

on the ground on his right side.

Sergeant Mike Rude arrived next, and he assisted Deasey

in placing the hobble on Slater’s legs. Once the hobble was

applied, the three officers stepped back, and Slater was able

to sit upright on the ground. Slater continued in that position

until paramedics arrived from the California Fire

Department (“Cal Fire”). Throughout this time, Slater

continued to talk irrationally, saying names or numbers

seemingly at random. Deputy Gary Brandt then arrived, and

he waited with the other officers and Slater.

The Cal Fire paramedics examined Slater and concluded

that there was no medical emergency. Gentry and Rude then

carried Slater over to the gas station’s air and water area,

with Brandt following along, and they attempted to wash the

pepper spray off Slater. After attempting to wash Slater,

Brandt and Gentry carried Slater back to Deasey’s vehicle,

whose driver side rear door was still open. They then

attempted to place Slater headfirst and chest down into the

vehicle, and as they did so, Slater was flailing about.

Meanwhile, Rude went around to the other side of the

vehicle, opened the rear passenger door, and attempted to

pull Slater by his shirt while Brandt and Gentry pushed him

in from the driver side. Slater lay on his stomach for a few

seconds and then moved himself into an upright seated

position, where he continued moving about and speaking

10 SLATER V. DEASEY

irrationally. During this time, an ambulance had also

arrived, but after the ambulance personnel briefly

communicated with the Cal Fire paramedics, the Cal Fire

personnel told them that they could leave.

Gentry and Brandt attempted to put the vehicle’s seat

belt on Slater, with Gentry leaning in through the rear

passenger door, and Brandt leaning in through the opposite

door and handing Gentry the seat belt. Slater leaned away

from Gentry, but Gentry pulled him back up, and Brandt

closed the rear driver side door. Slater, who was still not

seatbelted, slid halfway out of the open passenger side door,

so that his body from the waist up was outside the passenger

side and his head was almost touching the ground. Gentry

and Brandt then placed Slater back into the car, face down,

with his head now pointing towards the driver side. Slater

continued moving in the back of the car, although the parties

dispute how much he was moving about.

Gentry suggested applying another hobble, and Brandt

retrieved one and gave it to Gentry. Gentry opened the

driver side rear door, put his left foot on the rear floor of the

car, leaned over Slater (who was chest down with his head

toward the driver side), and then applied the hobble to

Slater’s ankles. Gentry then passed part of the second

hobble through the cage area that separated the back seat

from the front seat, and Deasey, who was leaning through

the now open driver side front door, took hold of it. Gentry

then stepped out of the vehicle. During the time that Gentry

applied this second hobble, his right knee applied pressure

to Slater’s left rib area for up to 45 seconds. After grabbing

the second hobble in the front driver area, Deasey realized

that it was too short to attach to the front driver seat hook.

So Deasey attached a third hobble to the second one and

looped the third hobble to the back of the car and through the

SLATER V. DEASEY 11

open driver side rear door, which he then shut closed on the

hobble. During most of the time that Gentry and Deasey

were securing the second and third hobbles, Brandt, who was

standing outside near the open driver side rear door, had his

right foot against Slater’s left shoulder. Brandt claimed that

he did this in order to prevent Slater from sliding himself out

of the patrol car. Brandt’s right foot was against Slater’s left

shoulder for about 70 seconds. The entire process for

securing the second and third hobbles took about 86 seconds.

After the second and third hobbles were secured, Slater

lay mostly on his stomach on the backseat of the patrol car,

with his legs drawn up behind him towards his buttocks.

Slater had little, if any, ability to move his legs.

Brandt heard Slater make a spitting noise just before the

driver side rear door was closed. After about 40 seconds, the

officers noticed that Slater was no longer moving, had

stopped speaking, and might have stopped breathing. The

officers also noticed that Slater had vomited a small amount.

Gentry opened the driver side rear door and unsuccessfully

attempted to get Slater to respond. Slater was removed from

the car, and the Cal Fire paramedics attempted to resuscitate

him. Slater was transported to the hospital where he was

pronounced dead.

The pathologist who performed the autopsy of Slater

concluded that he had died of “acute methamphetamine

intoxication.”

B

Plaintiffs, who are Slater’s surviving relatives, brought

this suit against Defendants Deasey, Gentry, Brandt, and

Rude (“Defendants”), asserting a variety of claims under

12 SLATER V. DEASEY

42 U.S.C. § 1983 and under state law. 2 After discovery was

completed, Defendants moved for summary judgment. With

respect to Plaintiffs’ § 1983 claim of excessive force,

Defendants argued that (1) each application of force against

Slater was reasonable; (2) alternatively, Defendants were

entitled to qualified immunity as to any force that may have

been excessive; and (3) there was insufficient admissible

evidence to establish that Defendants’ application of force

caused Slater’s death. In connection with the latter

argument, Defendants submitted the report and deposition

testimony of the pathologist who performed the autopsy of

Slater, and they also filed a Daubert motion to exclude the

testimony of Plaintiffs’ causation expert.

Plaintiffs opposed both the summary judgment motion

and the Daubert motion. On the causation issue, Plaintiffs

contended that there was sufficient evidence to permit a

reasonable jury to conclude that “positional or restraint

asphyxia” was the cause of Slater’s death. In support of this

contention, Plaintiffs supplied the declaration of their

causation expert, who explained his opinion as to the cause

of death as follows:

In Mr. Slater’s case, respiratory compromise,

vomiting with aspiration of vomit into

Mr. Slater’s airway, and loss of

consciousness happened within seconds of

the final hobbles being attached and pulled

tight. The prone and hobbled position Mr.

Slater was in compromised his ability to

breathe, compressed his abdomen and chest,

and led to his vomiting and aspirating the

2

The County was named as an additional defendant only in the state

law claims.

SLATER V. DEASEY 13

vomit into his lungs. This prevented

sufficient breathing, leading to loss of

consciousness and resulting in death.

...

It is well accepted that inhibition of

respiration and/or inhibition of blood flow

caused by too much weight on the back for

too long can cause asphyxia. The probable

trigger for Mr. Slater’s vomiting and

ultimately for his asphyxial death was likely

the effects of the way he was restrained

prone, hogtied, and compressed even more

by the pressure on his back by two deputies.

Even more pressure was applied to Slater’s

abdomen and chest by his legs being drawn

upward and back towards his buttocks with

the addition of more hobbles and the

improvised technique used to increase the

tension on the 2nd and 3rd hobbles. This

transferred more of the weight of his legs to

his abdomen and chest, the fulcrum for his

body weight in his prone position in the car.

Plaintiffs’ expert also explained why he ruled out

methamphetamine overdose as the cause of death.

After a hearing on the motions and supplemental

briefing, the district court granted summary judgment to

Defendants. The court first held that, viewing the evidence

in the light most favorable to the Plaintiffs, “Deasey’s use of

pepper spray, Deasey’s knee strike to Slater, and the

application of the first hobble (including any force that may

have been used by the deputies in applying that hobble) were

14 SLATER V. DEASEY

reasonable and did not violate Slater’s Fourth Amendment

rights.” As to the second and third hobbles, the court held

that a reasonable jury could find that the force used was

excessive. The court nonetheless granted summary

judgment based on qualified immunity, holding that

“Plaintiffs have failed to carry their burden of demonstrating

that the constitutional right at issue was clearly established

such that a reasonable law enforcement officer would have

known that his challenged conduct was unlawful.” The court

dismissed the pendent state law claims without prejudice,

and it denied as moot the Daubert motion concerning

Plaintiffs’ causation expert.

C

A panel of this court affirmed in part and reversed in part.

The panel affirmed the district court’s conclusion that, as a

matter of law, the application of the first hobble did not

constitute excessive force. Slater, Mem. Dispo. at 3. As to

the second and third hobbles, the panel agreed that a

reasonable jury could find the force to be excessive, but the

panel reversed the grant of summary judgment based on

qualified immunity. Id. at 4–7. According to the panel, this

court’s decision in Drummond ex rel. Drummond v. City of

Anaheim, 343 F.3d 1052 (9th Cir. 2003), was “sufficiently

analogous” to put Defendants “on notice that their use of

force violated the Fourth Amendment.” Slater, Mem. Dispo.

at 7. In light of this ruling, the panel vacated the dismissal

of the state law claims and one additional claim, id. at 7

& n.4, and remanded the case “for trial,” id. at 2.

II

By failing to apply—and in some respects even to

mention—the controlling standards that govern the qualified

immunity inquiry under the Supreme Court’s and this court’s

SLATER V. DEASEY 15

recent precedent, the panel’s decision warrants en banc

review. See Fed. R. App. P. 35(b)(1)(A) (en banc review is

warranted when “the panel decision conflicts with a decision

of the United States Supreme Court or of th[is] court”). Had

those standards been applied, the panel would have had no

choice but to affirm the district court’s holding that the

officers were entitled to qualified immunity.

A

Although the Supreme Court has issued numerous

opinions over the last ten years that have refined and limited

what it means to say that a right was “clearly established”

for qualified immunity purposes, the panel largely ignored

that case law. Instead, quoting from a 2003 decision of this

court, the panel relied primarily on a more general

proposition that qualified immunity turns on:

“whether the right was clearly established in

light of the specific context of the case” such

that “it would be clear to a reasonable officer

that his conduct was unlawful in the situation

he confronted.”

Slater, Mem. Dispo. at 5 (quoting Drummond, 343 F.3d

at 1056 (further citation and internal quotation marks

omitted)). Applying that more general standard, the panel

held that qualified immunity was inapplicable because “the

circumstances here are sufficiently analogous to Drummond

such that Defendants were on notice that their use of force

violated the Fourth Amendment.” Slater, Mem. Dispo. at 7.

The panel’s analysis disregards the relevant qualified

immunity standards as more specifically articulated in the

Supreme Court’s recent case law.

16 SLATER V. DEASEY

Since our 2003 opinion in Drummond, the Supreme

Court has issued no less than eight opinions reversing this

court’s denial of qualified immunity in Fourth Amendment

cases—four of which were summary reversals. City of

Escondido v. Emmons, 139 S. Ct. 500 (2019) (summarily

reversing); Kisela v. Hughes, 138 S. Ct. 1148 (2018)

(summarily reversing); City & Cty. of San Francisco v.

Sheehan, 135 S. Ct. 1765 (2015); Stanton v. Sims, 571 U.S. 3

(2013) (summarily reversing); Messerschmidt v. Millender,

565 U.S. 535 (2012); Ashcroft v. al-Kidd, 563 U.S. 731

(2011); Safford Unified School Dist. No. 1 v. Redding,

557 U.S. 364 (2009); Brosseau v. Haugen, 543 U.S. 194

(2004) (summarily reversing). During that same time

period, the Court has issued six more opinions reversing the

other circuit courts’ denial of qualified immunity in Fourth

Amendment cases, and three of those were summary

reversals. District of Columbia v. Wesby, 138 S. Ct. 577

(2018); White v. Pauly, 137 S. Ct. 548 (2017) (summarily

reversing); Mullenix v. Luna, 136 S. Ct. 305 (2015)

(summarily reversing); Carroll v. Carman, 574 U.S. 13

(2014) (summarily reversing); Plumhoff v. Rickard, 572 U.S.

765 (2014); Pearson v. Callahan, 555 U.S. 223 (2009).

Given that the Supreme Court has thus issued a total of

14 opinions since 2003 reversing the circuit courts’ denials

of qualified immunity in Fourth Amendment cases,

including seven summary reversals, the panel clearly erred

when it disregarded much of what the Court said in those

cases. This recent Supreme Court precedent has reiterated

two important and closely related rules, and the panel

violated both of them in its decision.

The first of these rules is the more general principle—

applicable to all qualified immunity cases—“that clearly

established law should not be defined at a high level of

generality.” White, 137 S. Ct. at 552 (citation and internal

SLATER V. DEASEY 17

quotation marks omitted). Because an officer is entitled to

qualified immunity unless then-existing precedent “clearly

prohibit[s] the officer’s conduct in the particular

circumstances before him,” Wesby, 138 S. Ct. at 590

(emphasis added), “general proposition[s]” are “of little help

in determining whether the violative nature of particular

conduct is clearly established,” al-Kidd, 563 U.S. at 742; see

also Plumhoff, 572 U.S. at 779 (more generally phrased

propositions do not defeat qualified immunity because they

“avoid[] the crucial question whether the official acted

reasonably in the particular circumstances that he or she

faced”). If it were permissible to generalize beyond the

specific points established in the existing precedent,

“‘[p]laintiffs would be able to convert the rule of qualified

immunity . . . into a rule of virtually unqualified liability

simply by alleging violation of extremely abstract rights.’”

White, 137 S. Ct. at 552 (citation omitted). This court has

nonetheless routinely strayed from this rule, prompting the

Supreme Court to admonish that it has “‘repeatedly told

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

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

Sheehan, 135 S. Ct. at 1775–76 (citation omitted). In its

amended memorandum disposition, the panel now at least

pays lip service to this rule by quoting White’s recitation of

it, see Slater, Mem. Dispo. at 6, but the panel then still

proceeds to flout that rule by relying on higher-level

generalizations when defining the relevant clearly

established law. See infra at 19–25.

The second rule that emerges from the Supreme Court’s

recent case law is a close corollary of the first, and it

underscores the especially heightened need for specificity in

the context of a Fourth Amendment excessive force case.

Mullenix, 136 S. Ct. at 308. Because “[u]se of excessive

force is an area of the law ‘in which the result depends very

18 SLATER V. DEASEY

much on the facts of each case,’ . . . police officers are

entitled to qualified immunity unless existing precedent

‘squarely governs’ the specific facts at issue.” Kisela,

138 S. Ct. at 1153 (quoting Mullenix, 136 S. Ct. at 309)

(emphasis added). As this court recently emphasized in a

published decision concerning qualified immunity in the

Fourth Amendment context, “we must locate a controlling

case that ‘squarely governs the specific facts at issue,’ except

in the ‘rare obvious case’ in which a general legal principle

makes the unlawfulness of the officer’s conduct clear despite

a lack of precedent addressing similar circumstances.” West

v. City of Caldwell, 931 F.3d 978, 983 (9th Cir. 2019)

(citation omitted).

The panel does not contend (and, as the discussion below

makes clear, could not contend) that this is the “rare obvious

case” in which the general legal principles governing

excessive force would have been sufficient to alert “every

reasonable officer” that applying a further hobble to Slater

would violate the Constitution. Wesby, 138 S. Ct. at 590–

92. Accordingly, the panel was required to identify “existing

precedent” that “‘squarely governs’ the specific facts at

issue.” Kisela, 138 S. Ct. at 1153 (quoting Mullenix,

136 S. Ct. at 309); see also West, 931 F.3d at 983. The panel,

however, did not even recite that demanding standard, much

less apply it. Instead, the panel held that the officers here

were not entitled to qualified immunity because (in the

panel’s view) this court’s decision in Drummond was

“sufficiently analogous” to this case to put Defendants “on

notice that their use of force violated the Fourth

Amendment.” Slater, Mem. Dispo. at 7. This watered-down

“sufficiently analogous” test more closely resembles the

standard that we applied in Kisela and that earned us a

summary reversal by the Supreme Court. See 138 S. Ct.

at 1151. Moreover, as set forth below, the panel’s effort to

SLATER V. DEASEY 19

stretch Drummond to cover the facts of this case violates

both the Court’s repeated admonition not to resort to higher

levels of generality and the Court’s insistence on identifying

a controlling precedent that squarely governs the specific

facts at issue.

B

In contending that Drummond was alone sufficient to

defeat qualified immunity, the panel ignored two significant

differences between Drummond and this case.

1

First, the panel misstated the specific holding of

Drummond and, in doing so, it improperly raised the level of

generality of the rule established in that case. According to

the panel, Drummond “clearly established that ‘squeezing

the breath from a compliant, prone, and handcuffed

individual . . . involves a degree of force that is greater than

reasonable.’” Slater, Mem. Dispo. at 6 (quoting Drummond,

343 F.3d at 1059) (ellipses added by panel). The problem

with this contention is that the panel’s quotation improperly

used ellipses to edit out a crucial fact that makes clear that

Drummond is not analogous to this case. The actual quoted

language from Drummond is as follows, and it includes the

additional italicized phrase:

The officers—indeed, any reasonable

person—should have known that squeezing

the breath from a compliant, prone, and

handcuffed individual despite his pleas for

air involves a degree of force that is greater

than reasonable.

20 SLATER V. DEASEY

343 F.3d at 1059 (emphasis added). The language omitted

by the panel was not an irrelevant or insignificant detail; on

the contrary, the Drummond court repeatedly emphasized

this important factor in finding that the officers in that case

were not entitled to qualified immunity. See id. at 1061

(“The officers allegedly crushed Drummond against the

ground by pressing their weight on his neck and torso, and

continuing to do so despite his repeated cries for air, and

despite the fact that his hands were cuffed behind his back

and he was offering no resistance. Any reasonable officer

should have known that such conduct constituted the use of

excessive force”) (emphasis added); id. at 1062 (“We need

no federal case directly on point to establish that kneeling on

the back and neck of a compliant detainee, and pressing the

weight of two officers’ bodies on him even after he

complained that he was choking and in need of air violates

clearly established law, and that reasonable officers would

have been aware that such was the case.”) (emphasis added).

On top of this express language from Drummond itself,

common sense confirms that there is an obvious difference

between continuing to apply substantial force while

disregarding explicit cries for air and applying force to a

detainee without any such protest (and therefore without any

such equivalent disregard of actual “notice of the detainee’s

respiratory distress”). Id. at 1060 n.7.

In view of this critical factor, Drummond cannot be

characterized as a “controlling case that squarely governs the

specific facts at issue.” West, 931 F.3d at 983 (citations and

internal quotation marks omitted); see also Kisela, 138 S. Ct.

at 1153. Here, the first indications that Slater might be

struggling to breathe were his spitting noises and vomiting,

see Slater, Mem. Dispo. at 7, but these acts were first

observed after Slater was restrained, and the officers did not

ignore them. The spitting noise occurred just before the

SLATER V. DEASEY 21

driver side rear door was closed after the application of the

third hobble—meaning that it occurred after the officers had

completed their actions in applying force to Slater.

Likewise, the vomiting was noticed through the window

after the rear door had been closed and before the officers

promptly reopened it to check on Slater. When the officers

confirmed that he was in distress, Slater was immediately

attended to by the Cal Fire paramedics who were still on the

scene. By promptly responding to the first indication that

Slater was in distress, and calling over medical assistance,

the officers here did the opposite of the officers in

Drummond, who instead ignored the detainee’s pleas for air

and continued pressing on his body with the full weight of

two officers. 343 F.3d at 1059, 1061–62.

This crucial difference—that, unlike in this case, the

officers in Drummond continued to apply force despite the

detainee’s pleas for air—“‘leap[s] from the page.’” Kisela,

138 S. Ct. at 1154 (quoting Sheehan, 135 S. Ct. at 1776). Or,

to be more precise, it would have leapt from the page had the

panel not effaced the text. Moreover, by excising a factor

that was crucial to Drummond’s holding, the panel here

necessarily raised the level of generality of the rule

established in Drummond, thereby contravening the

Supreme Court’s repeated admonition “not to define clearly

established law at a high level of generality.” Emmons,

139 S. Ct. at 503. 3

3

The panel points to three out-of-circuit decisions to justify its

disregard of Drummond’s emphasis on the officers’ awareness of the

detainee’s respiratory distress. To the extent that these decisions

assertedly found a violation of clearly established law despite the lack of

any apparent respiratory distress, but see, e.g., McCue v. City of Bangor,

838 F.3d 55, 59 (1st Cir. 2016) (noting that the defendant officer

continued to press his knee on McCue’s neck “even after McCue twice

22 SLATER V. DEASEY

2

Beyond that, there is a second respect in which

Drummond differs critically from this case. As Drummond

itself emphasized, the force applied there involved “two

officers leaning their weight on Drummond’s neck and torso

for a substantial period of time,” creating an obvious risk of

“compression asphyxia.” 343 F.3d at 1059–60 & n.7.

Indeed, in holding that the officers should have been aware

of the risks of placing their full body weight on a detainee,

the Drummond court emphasized the well-known and well-

publicized risks of “compression asphyxia” no less than four

times in its opinion. Id. at 1056, 1059, 1061, 1062. By

contrast, in this case, there is no evidence that the officers

ever put their full body weight on Slater during application

of the second and third hobbles, much less that they did so

for a substantial period of time. As noted earlier, at most,

Gentry’s right knee applied pressure to Slater’s left rib area

shout[ed] in distress that the officers are hurting his neck”), they did so

only in the context of condemning an officer’s direct application of

“significant, continued force on a person’s back ‘while that [person] is

in a face-down prone position after being subdued and/or

incapacitated,’” id. at 64 (quoting Weigel v. Broad, 544 F.3d 1143, 1155

(10th Cir. 2008) (in turn quoting Champion v. Outlook Nashville, Inc.,

380 F.3d 893, 903 (6th Cir. 2004) (emphasis added) (further quotation

marks omitted))). Thus, to the extent that these other circuits might be

said to have thereby extended and generalized Drummond’s holding,

they have done so in a way that does not cover this case. See, e.g.,

Champion, 380 F.3d at 903 (“This is neither a ‘positional asphyxia’ case

nor a case in which the officers lightly touched or placed incidental

pressure on Champion’s back while he was face down”); see generally

infra at 19–25. Where, as here, the officers’ actions do not involve that

sort of obviously dangerous direct application of full body weight to

compress the detainee’s back or neck for a sustained period of time,

Drummond confirms the continued importance of whether “the police

were actually put on notice of the detainee’s respiratory distress.”

343 F.3d at 1060 n.7. The officers here did not ignore any such notice.

SLATER V. DEASEY 23

for up to 45 seconds while Gentry applied the second hobble,

and given that Gentry had his left leg on the car floor during

that whole time, this incidental pressure would not have

applied Gentry’s full body weight to Slater. Likewise,

Brandt did not place his full body weight on Slater, because

Brandt was standing outside the car and extended his right

foot into the car and against Slater’s left shoulder. And

Brandt’s right foot was thus positioned against Slater’s left

shoulder for only about 70 seconds. As the panel itself

elsewhere concedes, the evidence at most shows that the two

officers applied “some pressure” to Slater. Slater, Mem.

Dispo. at 4. The pressure applied by the two officers with

their bodies here was materially different, both in nature and

in duration, from that applied in Drummond. This point is

underscored by Drummond itself, which in a footnote

distinguished two cases in which incidental or light pressure

was applied to a struggling detainee for less than one minute.

See 343 F.3d at 1060 n.7.

To be sure, this case involves not just the alleged

compression from the officer’s knee and foot, but also the

alleged breathing difficulty created by the position in which

the hobbles ultimately put Slater. But this factor only further

underscores how very different this case is from Drummond

and how that decision cannot reasonably be said to

“‘squarely govern[]’ the specific facts at issue” here. Kisela,

138 S. Ct. at 1153 (citation omitted). Indeed, in opposing

summary judgment below, Plaintiffs’ theory was not, as in

Drummond, a straightforward case of compression asphyxia;

rather, Plaintiffs contended that the evidence would permit a

reasonable jury to conclude that “positional or restraint

asphyxia” was the cause of Slater’s death. As Plaintiffs’

causation expert explained, “[t]he prone and hobbled

position Mr. Slater was in compromised his ability to

breathe, compressed his abdomen and chest, and led to his

24 SLATER V. DEASEY

vomiting and aspirating the vomit into his lungs. This

prevented sufficient breathing, leading to loss of

consciousness and resulting in death.” Plaintiffs’ expert also

identified the officers’ pressure on Slater during the

application of the second and third hobbles as an additional

factor in Slater’s alleged asphyxia, but only in combination

with the asserted breathing difficulties created by his prone

and hobbled position. Drummond, however, does not

address such a hybrid positional asphyxia theory, and it does

not provide a basis for concluding that any reasonable officer

would have recognized that Slater’s hobbled position might

cause him to asphyxiate.

The panel’s broadening of Drummond confirms just how

far the panel has departed from the controlling qualified

immunity standards. The focus of the qualified immunity

inquiry has to be on the specific actions of the officers, and

whether the law clearly established that “the Fourth

Amendment prohibited the officer[s’] conduct in the

situation [they] confronted.” Mullenix, 136 S. Ct. at 309

(citation and internal quotation marks omitted). But the

panel’s broadening of Drummond converts it into a rule

about outcomes: if “asphyxia” results, it does not matter

whether it was caused by the officers’ use of direct

“compression” (as in Drummond) or was caused by a

collection of restraints, together with brief incidental

compression (as in this case). However, the relevant

question for qualified immunity is not what outcome

occurred as a result of the officers’ actions; the relevant

question is what specific actions did the officers take.

By ignoring all of these obvious differences between

Drummond and this case, the panel has effectively applied

an unstated but much broader rule that condemns a set of

police restraints that are not covered by the requisite

SLATER V. DEASEY 25

controlling precedent that “squarely governs the specific

facts at issue.” Kisela, 138 S. Ct. at 1153 (citation and

internal quotation marks omitted). The panel’s reasoning

and result cannot be squared with the Supreme Court’s

demanding standards for defeating qualified immunity.

III

The panel committed a further, related error in

suggesting that Defendants bear the burden of proof on the

disputed qualified-immunity issues presented in this appeal.

In reciting the general standards governing qualified

immunity, the panel stated that “Defendants bear the burden

of proving they are entitled to qualified immunity. See

Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005).” Slater,

Mem. Dispo. at 5. But on the cited page, Moreno merely

recites the boilerplate summary judgment point that,

“[b]ecause the moving defendant bears the burden of proof

on the issue of qualified immunity, he or she must produce

sufficient evidence to require the plaintiff to go beyond his

or her pleadings.” 431 F.3d at 638 (emphasis added). That,

of course, is not the relevant burden of proof on the

qualified-immunity issues presented in this appeal. Rather,

the applicable—and well-settled—rule is that “[t]he plaintiff

bears the burden of proof that the right allegedly violated

was clearly established at the time of the alleged

misconduct.” Romero v. Kitsap Cty., 931 F.2d 624, 627 (9th

Cir. 1991) (emphasis added); see also Shafer v. Cty. of Santa

Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017). Other

circuits follow the same rule. See, e.g., Callahan v. Unified

Gov’t of Wyandotte Cty., 806 F.3d 1022, 1027 (10th Cir.

2015) (“When a defendant raises the defense of qualified

immunity, the plaintiff bears the burden to demonstrate that

the defendant violated his constitutional rights and that the

right was clearly established.”); Findlay v. Lendermon,

26 SLATER V. DEASEY

722 F.3d 895, 900 (7th Cir. 2013) (plaintiff failed to “carry

his burden of showing a clearly established right” when he

failed to identify precedent showing that “any reasonable

officer would know [the conduct at issue] violated the

constitution”).

The panel’s error on this point is significant, because it

underscores that Plaintiffs had the burden to find a

controlling precedent that squarely governs the specific facts

of this case. They failed to carry that burden, and the district

court’s grant of summary judgment on qualified immunity

grounds should have been affirmed.

I respectfully dissent from the denial of rehearing en

banc.