James O'Doan v. Joshua Sanford

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES O’DOAN, No. 19-15623

Plaintiff-Appellant,

D.C. No.

v. 3:17-cv-00293-

LRH-CBC

JOSHUA SANFORD, Reno Police

Officer; CADE LEAVITT, Reno Police

Officer; CITY OF RENO, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Submitted May 15, 2020 *

San Francisco, California

Filed March 19, 2021

Before: Ryan D. Nelson and Daniel A. Bress, Circuit

Judges, and Frederic Block, ** District Judge.

Opinion by Judge Bress;

Dissent by Judge Block

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

**

The Honorable Frederic Block, United States District Judge for

the Eastern District of New York, sitting by designation.

2 O’DOAN V. SANFORD

SUMMARY ***

Civil Rights

The panel affirmed the district court’s summary

judgment for defendants in an action brought pursuant to

42 U.S.C. § 1983 and the Americans with Disabilities Act

alleging that police officers used excessive force against

plaintiff, lacked probable cause to arrest him, and prepared

deliberately fabricated police reports.

Police officers responded to a 911 call reporting that

plaintiff had experienced an epileptic seizure, was trying to

break windows, and had fled his home naked. In

apprehending plaintiff on a sidewalk after he refused to

comply with commands to stop, officers struggled

physically with plaintiff and used a “reverse reap throw” to

bring plaintiff to the ground. Plaintiff was transported to the

hospital and, after being treated and discharged, he was

released into police custody and charged with indecent

exposure and resisting a police officer. Plaintiff was booked

into the county jail overnight and released on bail the next

day. Charges were later dismissed.

The panel held that plaintiff’s § 1983 claims failed

because the police officers were entitled to qualified

immunity. Addressing first the claim that the use of the

reverse reap throw amounted to excessive force, the panel

evaluated the facts of this case against the applicable body

of Fourth Amendment law, and concluded, at the very least,

***

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

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

O’DOAN V. SANFORD 3

that Officer Sanford did not violate clearly established law

when he executed the maneuver on plaintiff. The panel

noted that officers were called in to a “Code 3” situation, a

request for immediate police assistance for a “violent”

individual. They arrived to find plaintiff naked and moving

quickly on a busy street. Plaintiff repeatedly resisted

officers’ commands to stop and then turned to the officers in

a threatening manner, with his fists clenched. Plaintiff

identified no precedent that would suggest the force used

here was excessive, much less that excessiveness was clearly

established on these facts.

The panel held that the district court correctly granted

summary judgment on plaintiff’s Americans with

Disabilities Act (“ADA”) claim that officers failed to make

a reasonable accommodation when detaining him. The

panel held that plaintiff had not shown that a lesser amount

of force would have been reasonable under the

circumstances, or how personnel with different training

would have acted differently given the exigencies of the

situation.

Addressing plaintiff’s unlawful arrest claim, the panel

could not say that the officers violated clearly established

law in determining they had probable cause to arrest plaintiff

after witnessing him engage in conduct that indisputably

violated Nevada law. Nor did any clearly established law

require the officers to conclude that probable cause had

dissipated once plaintiff was discharged from the hospital.

Nothing that happened in the emergency room could or did

change the fact that plaintiff had, without doubt, engaged in

illegal conduct—which the officers had personally observed

and experienced firsthand. Assuming plaintiff could assert

a parallel ADA wrongful arrest claim against the City, that

claim likewise failed.

4 O’DOAN V. SANFORD

The panel lastly considered plaintiff § 1983 claim that

the officers violated due process because they did not discuss

plaintiff’s reported epileptic seizure in their police report and

affidavit supporting probable cause. While the panel could

agree that more information is usually better than less and

that including more specific information about reports of

plaintiff’s possible seizure would have been preferable, the

question here was whether officers violated clearly

established law. The panel concluded that they plainly did

not.

Dissenting in part, Judge Block stated that the problem

with the majority’s opinion was that there were clearly

material factual disputes and credibility determinations that

were for a jury – not judges – to resolve. Judge Block

dissented from those parts of the opinion granting summary

judgment for the police officers on plaintiff’s § 1983 false

arrest and due process claims, as well as on his ADA claim.

Judge Block concurred in those parts of the majority’s

opinion upholding the district court’s grant of summary

judgment on the excessive force and failure to train claims.

COUNSEL

Luke Busby, Reno, Nevada, for Plaintiff-Appellant.

Karl S. Hall, City Attorney; Mark W. Dunagan, Deputy City

Attorney; City Attorney’s Office, Reno, Nevada; for

Defendants-Appellees.

O’DOAN V. SANFORD 5

OPINION

BRESS, Circuit Judge:

James O’Doan was arrested for resisting a public officer

and indecent exposure after officers observed O’Doan

engage in conduct that violated Nevada law. O’Doan spent

one night in custody and was released on bail the next

morning. The charges against him were later dropped.

O’Doan then filed this lawsuit under 42 U.S.C. § 1983

against Reno police officers Joshua Sanford and Cade

Leavitt, alleging they used excessive force, lacked probable

cause to arrest him, and prepared deliberately fabricated

police reports. O’Doan also brought related claims against

the City of Reno under the Americans with Disabilities Act

(ADA). See 42 U.S.C. § 12101 et seq.

We hold that O’Doan’s § 1983 claims fail because the

police officers were entitled to qualified immunity. We also

hold that the district court properly granted summary

judgment to the City on O’Doan’s related ADA claims. We

therefore affirm the judgment of the district court.

I

In reviewing the grant of summary judgment to the

defendants, we recite the facts in the light most favorable to

O’Doan. Garcia v. County of Merced, 639 F.3d 1206, 1208

(9th Cir. 2011).

At 6:47 p.m. on the evening of July 15, 2016, O’Doan’s

girlfriend, April O’Fria, called 911 to report that O’Doan had

experienced an epileptic seizure in the shower, was trying to

break windows, and had fled their home naked. The 911

operator informed the emergency dispatcher that “[p]atient

is postictal and violent at this time,” to which the dispatcher

6 O’DOAN V. SANFORD

responded: “All right. I’ll let them know.” Meanwhile, on

another 911 call soon after, O’Fria told the operator that

O’Doan was having a “very bad epileptic seizure.” The

operator responded, “I will let them know.” O’Fria

frantically reported that O’Doan was “trying to break out the

window” and was “hurting himself very, very bad,” before

O’Fria was apparently disconnected from the call after

approximately two and a half minutes.

On another 911 call less than a minute later, O’Fria

further explained that O’Doan “is epileptic and he is having

a grand mal seizure” and that police officers had previously

“attacked him for not listening.” O’Fria asked the 911

operator to “[p]lease make sure they know he’s epileptic.”

The operator told O’Fria, “So I can’t guarantee that the

officers, the officers have to do whatever they have to do to

keep themselves and everybody else safe, okay? But I did

let them know that he’s having a grand mal seizure, okay?”

O’Fria then confirmed that “the police have him.” The

operator again stated that she will “let the officers know

everything.”

While these calls were taking place, firefighters had

arrived on the scene first and promptly initiated a “Code 3,”

which means “there’s something violent happening” and that

police were needed “immediately” for “an emergency

situation.” Firefighters had found O’Fria and O’Doan on a

busy Reno street “struggling” and “grappling with each

other.” O’Doan ran down the street and past the emergency

personnel. O’Doan looked at the firefighters when they tried

to talk to him but ignored their requests for him to stop.

O’Fria, who had been chasing after O’Doan, told one of the

firefighters she believed O’Doan had a seizure and that it had

happened before.

O’DOAN V. SANFORD 7

In the meantime, police dispatch notified Reno Police

Officers Sanford and Leavitt of the Code 3 request. There is

no suggestion that the police officers were on O’Fria’s 911

calls or the communications between the 911 operator and

emergency dispatch, a portion of which took place after

police were already engaged. En route to the scene, Officer

Sanford saw an EMS advisory on the computer in the police

car showing that the 911 caller had reported “that the

subj[ect] is in a grand mal seizure [and] last time [officers]

attacked him due to him being in a seizure.” While Sanford

knew what a seizure was, he did not know the meaning of

“grand mal seizure.” For his part, Officer Leavitt (who was

still a police trainee at the time) testified he did not remember

reading the EMS advisory on the car computer and was not

aware, upon arriving at the scene, that O’Doan had allegedly

suffered a seizure.

Sanford and Leavitt pulled up to find that firefighters had

“staged” their vehicle away from O’Doan and O’Fria, which

is done when there is a law enforcement issue that first

requires police intervention. At this point, O’Doan had

passed the staged firefighters and was moving quickly down

the sidewalk naked.

The officers tried to catch up with O’Doan while

identifying themselves as police and instructing O’Doan to

stop. O’Doan did not comply. According to Sanford, in

response to the officers’ commands to stop, O’Doan turned,

faced the officers, and “ball[ed] up both of his fists and kind

of br[ought] his arms, his forearms, up, not at a full 90-

degree angle, but he br[ought] them up slightly.” Officer

Leavitt similarly described how O’Doan “stopped and

turn[ed] towards me with his fist clenched and presenting

body language as if he was going to attack myself and

Officer Sanford.” As Leavitt later testified, O’Doan

8 O’DOAN V. SANFORD

“presented towards me like he would have come towards me

right there.”

Leavitt tried to deploy his taser on O’Doan but the taser

malfunctioned. O’Doan then turned away and moved off

quickly. At that point, Sanford approached O’Doan and

used a “reverse reap throw” to bring him to the ground. This

maneuver essentially involves tripping the subject from

behind to throw him off balance and then “guiding” him to

the ground with both hands.

After Sanford brought O’Doan down, officers engaged

in a “major struggle” with O’Doan, who was “combative.”

O’Doan thrashed around, “scuffl[ing]” with the officers,

“kicking and attempting to get up off the ground” and

continuing to resist attempts to restrain him. The officers

repeatedly told O’Doan to stop resisting, but O’Doan did not

obey. Firefighters and a third officer who had since arrived

on the scene had to help Sanford and Leavitt restrain

O’Doan. After his arms were handcuffed behind his back,

O’Doan continued to try to kick people, so officers put leg

restraints on him. O’Doan received some abrasions and

lacerations to various parts of his body during the episode.

Once he was restrained, EMS administered a sedative to

O’Doan, who began to relax. O’Doan was then loaded onto

a gurney and into the ambulance. Firefighter David

Blondfield informed EMS that O’Fria had told him on the

scene that O’Doan had a history of seizures, but Blondfield

did not recall EMS’s response. Blondfield did not recall

passing on this information to the police officers. Sanford

testified that while still on the scene he spoke with his

supervisor, Sergeant Browitt, which is required under

department policy when a use of force causes claimed or

visible injuries. Sanford “informed [Browitt] that they’re

claiming that [O’Doan] was suffering from a seizure.”

O’DOAN V. SANFORD 9

The emergency personnel at the scene, who had training

in responding to persons having seizures, did not believe

O’Doan had suffered a seizure or that he was in a “post-ictal”

(post-seizure) state. Blondfield testified that, based on what

he observed, “a seizure patient was not what came to mind.”

“[M]y first thought was not this is a seizure. My first thought

was there’s something else.” Instead, O’Doan “reminded me

of somebody high on meth or something like that.”

Firefighter Trevor Alt similarly testified that emergency

personnel “believed [O’Doan] was on drugs.” O’Doan’s

behavior “was consistent with someone that’s on a drug

binge,” “more consistent with methamphetamine, maybe

ecstasy, hallucinogens.” Blondfield and Alt testified that

someone who emerges from a seizure is “lethargic,” which

is not how O’Doan presented. As Alt testified, “[y]ou can’t

walk that way in a postictal state.”

O’Doan was transported to the hospital to treat his

lacerations, and, as Leavitt wrote in his police report, any

“other possible health issues.” Leavitt testified that because

it was “uncommon to have an individual naked running

down the street,” officers in that type of situation want to

ensure persons like O’Doan are “not on any foreign

substances to make them mentally not sound there, to make

them act in this behavior that isn’t common.”

Sanford and Leavitt followed O’Doan to the hospital.

O’Doan was admitted to the emergency room at 7:40 p.m.

that evening. O’Doan has no memory of these events but

acknowledged that if he had been left to wander the streets,

he could have posed a danger to himself or others.

Once at the emergency room, Dr. Daryl Di Rocco treated

O’Doan. Di Rocco’s deposition testimony was based

entirely on medical records because he did not have any

10 O’DOAN V. SANFORD

independent recollection of O’Doan’s time at the hospital.

The records indicated that O’Doan came in with a “seizure

or a possible seizure,” and reference O’Doan’s “history of

seizures,” while noting that “[t]he story is not clear.”

Di Rocco diagnosed O’Doan as having suffered from a

seizure, abrasions, and tobacco use, and Di Rocco believed

the diagnosis in the records was accurate.

But Dr. Di Rocco confirmed that it was not “clear to

[him] from [his] records that [O’Doan] had a seizure on the

night in question.” Because Di Rocco “didn’t see him

actually have a seizure,” Di Rocco “can’t say for sure that’s

what happened.” As Dr. Di Rocco testified, “[p]eople come

in with chest pain and I can’t feel their chest pain, but I still

diagnose them with chest pain if that’s what they say they

had.” While Di Rocco “assume[d]” O’Doan had an epileptic

seizure based on his reported medical history, Di Rocco

“would not be able to confirm that he had a seizure or that

he was in a postictal state. There would be no way for me to

know that.” Di Rocco thus “couldn’t tell you” whether

O’Doan was in a post-ictal state during the time he was in

contact with the police. Di Rocco also agreed he “did not

rule out the fact that Mr. O’Doan may have taken illicit drugs

prior to his coming to be treated.” Medical records indicate

that the next day, during another evaluation, O’Doan tested

positive for marijuana.

Officer Leavitt interviewed O’Doan in the hospital.

O’Doan informed Leavitt that he believed he had suffered a

seizure, but he remembered nothing. Leavitt stated that at

the hospital, O’Doan appeared to be in a normal frame of

mind, “180 degrees different” from his disposition in the

street, and that O’Doan was respectful in their conversation.

Leavitt then had a “short conversation” with a doctor at the

emergency room “[a]s to does this make sense as to what

O’DOAN V. SANFORD 11

Mr. O’Doan is telling me,” because Leavitt found O’Doan’s

behavior “unusual for me, from what I understand a seizure

to be.” Leavitt’s impression of this conversation with the

doctor was that “it was – it was no, like this does not match

up to what Mr. O’Doan is saying.” For his part,

Dr. Di Rocco does not remember speaking with the police

officers but testified that he would speak with law

enforcement “[a]s a matter of routine practice” if officers

had questions.

Officer Sanford did not speak with O’Doan at the

hospital, but he did receive and sign O’Doan’s medical

discharge papers, a requirement when a patient is discharged

into police custody. These papers note the seizure diagnosis

that Dr. Di Rocco had written in the medical records, as

described above, but do not specify the cause of the seizure

or attribute it to epilepsy.

The discharge papers also contain stock descriptions and

treatment recommendations for O’Doan’s various

diagnoses. For example, an abrasion is described as “a cut

or scrape of the skin.” For seizures (listed after abrasions

and contusions), the stock description states that “[e]pilepsy

is a brain disorder in which a patient has repeated seizures

over time,” but goes on to explain that “[t]here are many

different problems that can cause seizures,” including bodily

disorders, “[i]mbalance of chemicals in the blood,” and

“[d]rug abuse.” “In some cases,” the stock language of the

description goes on, “no cause is found.” The general

information about seizures in the discharge papers further

includes the statement that “[a]fter a seizure, you may feel

confused and sleepy.”

Sanford and Leavitt agreed in the emergency room to

arrest O’Doan for resisting a public officer, Nev. Rev. Stat.

§ 199.280.3, and indecent exposure, id. § 201.220.1.

12 O’DOAN V. SANFORD

O’Doan was released into police custody around 9:40 p.m.,

charged with both offenses, and booked into the county jail

overnight, where he had his own cell. The next morning,

O’Doan was released on bail. There is no mention in the

arrest report, which Leavitt authored, or in the police report

narratives that both officers prepared, of any alleged seizure.

The declaration supplement to the arrest report does,

however, note that O’Doan was brought to the hospital to be

“evaluated for his injuries and other possible health issues.”

The district attorney brought charges against O’Doan, but

nearly five months later dismissed the charges without

prejudice.

O’Doan later filed this suit against Sanford, Leavitt, and

the City of Reno. He alleged that both officers had

wrongfully arrested him and violated due process in filing

deliberately fabricated police reports, and further alleged

that Sanford used excessive force when executing the

reverse reap throw. O’Doan also brought related ADA

claims against the City. The district court granted summary

judgment to the defendants on all claims.

O’Doan timely appeals. We review the grant of

summary judgment de novo. Garcia, 639 F.3d at 1208.

Under Federal Rule of Civil Procedure 56(a), “[t]he court

shall grant summary judgment if the movant shows that there

is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” In this posture,

we view the facts and draw reasonable inferences in favor of

the nonmoving party. District of Columbia v. Wesby, 138 S.

Ct. 577, 584 n.1 (2018); Scott v. Harris, 550 U.S. 372, 378–

379 (2007). “In the absence of material factual disputes, the

objective reasonableness of a police officer’s conduct is ‘a

pure question of law.’” Lowry v. City of San Diego, 858 F.3d

O’DOAN V. SANFORD 13

1248, 1254 (9th Cir. 2017) (en banc) (quoting Scott,

550 U.S. at 381 n.8).

II

Officers sued under 42 U.S.C. § 1983 may be immune

from civil liability under the doctrine of qualified immunity.

Qualified immunity “balances two important interests—the

need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform

their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,

231 (2009).

To determine whether the officers are entitled to

qualified immunity, “we consider (1) whether there has been

a violation of a constitutional right; and (2) whether that right

was clearly established at the time of the officer’s alleged

misconduct.” Jessop v. City of Fresno, 936 F.3d 937, 940

(9th Cir. 2019) (quotations omitted). The Supreme Court

has repeatedly emphasized the importance of faithfully

applying these standards consistent with the purposes of

qualified immunity.

“To be clearly established, a right must be sufficiently

clear that every reasonable official would [have understood]

that what he is doing violates that right. In other words,

existing precedent must have placed the statutory or

constitutional question beyond debate.” Reichle v.

Howards, 566 U.S. 658, 664 (2012) (alteration in original;

quotations omitted). “This demanding standard,” the

Supreme Court has instructed us, “protects ‘all but the

plainly incompetent or those who knowingly violate the

law.’” Wesby, 138 S. Ct. at 589 (quoting Malley v. Briggs,

475 U.S. 335, 341 (1986)).

14 O’DOAN V. SANFORD

Although qualified immunity involves a two-step

analysis, we may exercise our discretion to resolve a case

only on the second ground when no clearly established law

shows that the officers’ conduct was unconstitutional.

Pearson, 555 U.S. at 236–39, 242; Orn v. City of Tacoma,

949 F.3d 1167, 1174 (9th Cir. 2020); see also Wesby, 138 S.

Ct. at 589 n.7 (“We continue to stress that lower courts

‘should think hard, and then think hard again,’ before

addressing both qualified immunity and the merits of an

underlying constitutional claim.” (quoting Camreta v.

Greene, 563 U.S. 692, 707 (2011))).

In the exercise of our discretion, and with the Supreme

Court’s admonitions in mind, we resolve this case only on

the “clearly established law” prong of the qualified

immunity framework. With the benefit of a 360-degree view

of the facts and the luxury of reviewing the officers’ actions

from an armchair rather than a chaotic Reno street or an

emergency room, there are some aspects of the officers’

actions we can find commendable. In other instances,

greater care may have been warranted. Our task, however,

is not to serve as a police oversight board or to second-guess

officers’ real-time decisions from the standpoint of perfect

hindsight, but to ask whether the officers violated clearly

established law. Under the qualified immunity framework

the Supreme Court has forcefully articulated and reaffirmed,

the answer is clearly no.

A

We begin with O’Doan’s claim that Officer Sanford’s

use of a “reverse reap throw” amounted to excessive force,

in violation of the Fourth Amendment’s proscription against

unreasonable seizures. See Graham v. Connor, 490 U.S.

386, 395–97 (1989). In evaluating qualified immunity in

this context, the Supreme Court has reminded lower courts

O’DOAN V. SANFORD 15

that “[u]se of excessive force is an area of the law ‘in which

the result depends very much on the facts of each case,’ and

thus 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) (per

curiam) (quoting Mullenix v. Luna, 577 U.S. 7, 13 (2015)

(per curiam)). The question, then, is whether “clearly

established law prohibited” Sanford from using the degree

of force that he did in the specific circumstances that the

officers confronted. See City of Escondido v. Emmons,

139 S. Ct. 500, 503 (2019) (per curiam); see also White v.

Pauly, 137 S. Ct. 548, 552 (2017) (per curiam).

To evaluate the reasonableness of the force used, “we

balance the ‘the nature and quality of the intrusion on the

individual’s Fourth Amendment interests’ against ‘the

countervailing government interests at stake.’” Miller v.

Clark County, 340 F.3d 959, 964 (9th Cir. 2003) (quoting

Graham, 490 U.S. at 396). We consider “the type and

amount of force inflicted” as well as “(1) the severity of the

crime at issue, (2) whether the suspect posed an immediate

threat to the safety of the officers or others, and (3) whether

the suspect was actively resisting arrest or attempting to

evade arrest by flight.” Id. In the course of our review,

“[t]he calculus of reasonableness must embody allowance

for the fact that police officers are often forced to make split-

second judgments—in circumstances that are tense,

uncertain, and rapidly resolving—about the amount of force

that is necessary in a particular situation.” Graham, 490 U.S.

at 396–97.

Evaluating the facts of this case against the applicable

body of Fourth Amendment law, we have little difficulty

concluding that, at the very least, Officer Sanford did not

violate clearly established law when he executed a reverse

16 O’DOAN V. SANFORD

reap throw on O’Doan. Officers were called in to a “Code

3” situation, a request for immediate police assistance for a

“violent” individual. They arrived to find O’Doan naked and

moving quickly on a busy street. O’Doan repeatedly resisted

officers’ commands to stop and then turned to the officers in

a threatening manner, with his fists clenched.

O’Doan’s failure to follow “lawful commands, and [his]

actions” in making threatening gestures “risked severe

consequences.” See Ames v. King County, 846 F.3d 340, 349

(9th Cir. 2017). The officers therefore acted reasonably in

deciding to bring O’Doan under control. Indeed, their

efforts to do so may well have prevented O’Doan from

harming himself or those around him.

The reverse reap throw maneuver that Officer Sanford

used—a tripping technique that knocked O’Doan off balance

and allowed Sanford to bring O’Doan to the ground—also

involved a modest deployment of force. It is not clear “less

intrusive alternatives” would have sufficed to bring O’Doan

under control, especially when O’Doan had refused to heed

several warnings to stop. See Isayeva v. Sacramento

Sheriff’s Dep’t, 872 F.3d 938, 947 (9th Cir. 2017). While

O’Doan suffered some abrasions during this episode, his

injuries were minor. It is also not apparent these injuries

resulted from the reverse reap throw per se, rather than

O’Doan’s combativeness once taken to the ground and the

fact that O’Doan was naked.

O’Doan identifies no precedent that would suggest the

force used here was excessive, much less that excessiveness

was clearly established on these facts. Indeed, we have held

that officers were entitled to qualified immunity in cases

involving much more significant uses of force in less

challenging situations. See, e.g., Shafer v. County of Santa

Barbara, 868 F.3d 1110, 1113, 1117–18 (9th Cir. 2017)

O’DOAN V. SANFORD 17

(officer did not violate clearly established law when college

student “refuse[d] to comply with the officer’s orders” to

drop water balloons and the officer “progressively

increase[d] his use of force from verbal commands, to an

arm grab, and then a leg sweep maneuver,” sending student

“face first onto the pavement”); Ames, 846 F.3d at 344–45

(use of force not excessive when officer, responding to

mother’s call about her son’s suicide attempt, “employed a

hair hold to distract” the mother and then “slammed [her]

head into the ground three times”); see also, e.g., Felarca v.

Birgeneau, 891 F.3d 809, 816 (9th Cir. 2018).

O’Doan claims the Supreme Court’s decision in Graham

v. Connor, 490 U.S. 386 (1989), clearly establishes that

Officer Sanford’s reverse reap throw was constitutionally

excessive. But Graham merely set forth the overarching

standards that courts must apply in evaluating claims for

excessive force. Id. at 396. Those standards are articulated

at too high a level of generality to “squarely govern[]” this

case. See Mullenix, 577 U.S. at 15; see also White, 137 S.

Ct. at 552 (explaining that “we have held that . . . Graham”

does not by itself “create clearly established law outside ‘an

obvious case,’” and that “[t]his is not a case where it is

obvious that there was a violation of clearly established law

under . . . Graham” (quoting Brosseau v. Haugen, 543 U.S.

194, 199 (2004) (per curiam)). Graham also involved very

different facts. Among other things, Graham did not involve

a person who acted in a threatening manner toward police or

who presented a risk of harm to others. The amount of force

used in Graham was also much more significant than here.

See 490 U.S. at 389–90.

18 O’DOAN V. SANFORD

For all these reasons, the district court correctly

concluded that Officer Sanford was entitled to qualified

immunity on O’Doan’s § 1983 excessive force claim. 1

B

We turn next to O’Doan’s claim that the officers lacked

probable cause to arrest him. O’Doan does not dispute that

he engaged in conduct that violated Nevada law. See Nev.

Rev. Stat. §§ 199.280.3, 201.220.1. He instead contends that

the officers lacked probable cause to arrest him because they

should have known he lacked the mens rea to complete the

offenses. In O’Doan’s view, the officers knew or should

have known that O’Doan was “innocent” of his facially

unlawful conduct because O’Doan was in a post-ictal state

when he committed the offenses.

In considering whether the officers are entitled to

qualified immunity on this claim, we apply the same

principles set forth above. But we do so with the benefit of

additional guidance from the Supreme Court, both in terms

of the standards that govern the probable cause inquiry and

1

O’Doan also argues that the City violated the ADA because

officers failed to make a reasonable accommodation when detaining him,

i.e., that they should have done so in a less forceful manner that was more

appreciative of O’Doan’s epilepsy. See Sheehan v. City & County of San

Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014), rev’d in part on other

grounds, City & County of San Francisco v. Sheehan, 575 U.S. 600

(2015). The district court correctly granted summary judgment on this

claim. Under the ADA, “the plaintiff bears the initial burden of

producing evidence of the existence of a reasonable accommodation.”

Id. at 1233. O’Doan has not shown that a lesser amount of force would

have been reasonable under the circumstances. For the same reasons,

O’Doan’s ADA failure to train claim likewise fails. O’Doan has not

shown how personnel with different training would have acted

differently given the exigencies of the situation.

O’DOAN V. SANFORD 19

how those standards should be applied in evaluating a related

request for qualified immunity.

“To determine whether an officer had probable cause for

an arrest, ‘we examine the events leading up to the arrest,

and then decide “whether these historical facts, viewed from

the standpoint of an objectively reasonable police officer,

amount to” probable cause.’” Wesby, 138 S. Ct. at 586

(quoting Maryland v. Pringle, 540 U.S. 366, 371 (2003)).

Probable cause is “a fluid concept” that “deals with

probabilities and depends on the totality of the

circumstances,” which cannot “readily, or even usefully,

[be] reduced to a neat set of legal rules.” Id. (quotations

omitted). It “requires only a probability or substantial

chance of criminal activity, not an actual showing of such

activity.” Id. (quoting Illinois v. Gates, 462 U.S. 213, 243–

44 n.13 (1983)). This “is not a high bar.” Id. (quoting Kaley

v. United States, 571 U.S. 320, 338 (2014)).

The Supreme Court’s decision in Wesby instructs at

length and with notable emphasis how courts should

evaluate claims for wrongful arrest under qualified

immunity’s “clearly established law” requirement. In this

context, “[t]he clearly established’ standard . . . requires that

the legal principle clearly prohibit the officer’s conduct in

the particular circumstances before him.” Id. at 590. The

“rule’s contours must be so well defined that it is clear to a

reasonable officer that his conduct was unlawful in the

situation he confronted,” which “requires a high degree of

specificity.” Id. (quotations omitted).

Wesby “stressed that the ‘specificity’ of the rule is

especially important in the Fourth Amendment context.” Id.

(quotations omitted). Because of the “imprecise nature” of

the probable cause standard, “officers will often find it

difficult to know how the general standard of probable cause

20 O’DOAN V. SANFORD

applies in the precise situation encountered.” Id. (quotations

omitted). Thus, “[w]hile there does not have to be a case

directly on point” to deny qualified immunity, “existing

precedent must place the lawfulness of the particular arrest

beyond debate.” Id. (quotations omitted). “[A] body of

relevant case law is usually necessary to clearly establish the

answer with respect to probable cause.” Id. (quotations

omitted).

1

Evaluated under these stringent standards, Sanford and

Leavitt are clearly entitled to qualified immunity. While we

are sympathetic to O’Doan and acknowledge his disability,

we cannot say that the officers here violated clearly

established law in determining they had probable cause to

arrest O’Doan after witnessing him engage in conduct that

indisputably violated Nevada law. Simply stated, and as in

Wesby, O’Doan has not “identified a single precedent—

much less a controlling case or robust consensus of cases—

finding a Fourth Amendment violation ‘under similar

circumstances.’” 138 S. Ct. at 591 (quoting White, 137 S.

Ct. at 552). In fact, the only analogous case of which we are

aware granted qualified immunity to the arresting officer.

In Everson v. Leis, 556 F.3d 484 (6th Cir. 2009),

Everson, an epileptic, had a seizure at a mall. Id. at 489.

When police and emergency personnel arrived on the scene,

Everson was violent and combative. Id. at 489–90. The

police then “hogtied” Everson and arrested him. Id. at 489.

Everson told officers “that he was an epileptic and that their

conduct was likely to cause him to suffer another seizure.”

Id. Nevertheless, Everson was taken to a detention center,

where he again informed officials that he had epilepsy. Id.

Everson was charged with assault and disorderly conduct

O’DOAN V. SANFORD 21

and spent two days in jail. Id. The charges were later

dropped. Id.

Like O’Doan, Everson alleged that police did not have

probable cause to arrest him because the officer ignored

“exculpatory evidence of lack of mens rea.” Id. at 500. The

Sixth Circuit disagreed, holding that the arresting officer was

entitled to qualified immunity on Everson’s § 1983 wrongful

arrest claim. Id. at 498–500. The Sixth Circuit

acknowledged that “[v]iewed in the light best to Everson, he

had recovered from his seizure when he arrived at the squad

car.” Id. at 499. In addition, the arresting officer “knew that

Everson had suffered an epileptic seizure,” and “[i]t is a fair

inference” that “the deputy should have known that

Everson’s actions were made with, at best, a semi-conscious

frame of mind.” Id. Still, the Sixth Circuit held, any right to

be free of arrest in these circumstances was not clearly

established. Id. at 500.

The Sixth Circuit explained that “law enforcement

officials are not necessarily precluded under federal law

from arresting someone who displays symptoms of a known

medical condition.” Id. at 499. Everson “ha[d] committed

an act that would clearly be a criminal act if committed by a

non-disabled person.” Id. at 500. While his alleged lack of

mens rea by reason of his seizure could be a defense to

criminal liability, “[i]t is not the rule that police must

investigate a defendant’s legal defenses prior to making an

arrest.” Id. (quotations and alterations omitted). Indeed, the

officer had not violated clearly established law even though,

unlike here, an Ohio statute required officers to “make a

diligent effort to determine whether any disabled person he

finds is an epileptic,” and, “[w]henever feasible,” to make

this determination “before the person is charged with a crime

22 O’DOAN V. SANFORD

or taken to a place of detention.” Id. at 499–500 (quoting

Ohio Rev. Code § 2305.43(A)). 2

Particularly given Everson, it cannot be said that Sanford

and Leavitt violated clearly established law in concluding

they had probable cause to arrest O’Doan. Law enforcement

officers every day confront persons engaged in illegal

conduct who may appear to lack some degree of control over

their own actions. These situations can present difficult

judgment calls for police officers, who face competing

duties to ensure public safety and compliance with the law,

while acting compassionately toward persons in need of

help.

We are unaware of any case law—and neither O’Doan

nor the dissent cite any—that should have made clear to

Sanford and Leavitt that they lacked probable cause to make

an arrest. See Wesby, 138 S. Ct. at 586. Whether a defendant

had the mens rea to commit an offense can sometimes be the

focus of substantial investigation, if not an entire criminal

trial. O’Doan identifies no precedent that required the

officers in the specific circumstances they encountered to

2

In a subsequent decision, the Sixth Circuit affirmed the grant of

summary judgment for the defendants on Everson’s related ADA claims.

Everson v. Leis, 412 F. App’x 771 (6th Cir. 2011). The court held that

there was no intentional discrimination under the ADA because while

the officer knew Everson recently had a seizure, Everson “allege[d] no

facts that could support his bare conclusion that [the officer] knew that

Everson’s seizure was ongoing during the relevant time period.” Id.

at 778. The dissent speculates that “the result in Everson was materially

affected by the failures of Everson’s counsel.” But the Sixth Circuit

issued two substantial decisions in Everson that focused intently on the

principles that must be applied to a case involving similar facts as this

one. It is the Sixth Circuit’s analysis that is relevant here, which at the

very least confirms the absence of clearly established law establishing

that the officers’ actions here were unconstitutional.

O’DOAN V. SANFORD 23

pretermit those processes entirely and decide on their own—

on a busy street or in an emergency room—that O’Doan’s

facially unlawful conduct should be excused. If arresting

officers had to accept at face value claims of potential lack

of mens rea, as here, many arrests for unlawful conduct

would likely be called into question, with significant public

safety consequences. The most relevant decision (Everson)

affirmatively supported the officers’ arrest of O’Doan. But

at the very least, there was no decision—or indeed, any

relevant body of law or precedent—that “clearly

prohibit[ed]” O’Doan’s arrest in the “particular

circumstances” that the officers confronted. Wesby, 138 S.

Ct. at 590.

The specific facts of this case underscore this. Once on

the scene of a “Code 3” emergency, the officers encountered

a mobile individual who appeared to recognize verbal

commands and turned to flee at a quicker pace. Officers

could conclude that O’Doan was not in the midst of a seizure

at this time (and there is no suggestion he was). Instead,

officers witnessed O’Doan engage in unlawful conduct that

included O’Doan refusing to comply with officers’ orders,

raising his fists toward them in a threatening manner, and

combatively engaging them in a “major struggle.”

The officers could reasonably infer they had probable

cause to arrest O’Doan based on their observations of his

conduct. Wesby, 138 S. Ct. at 592 (referencing case law

“emphasiz[ing] that officers can rely on the ordinary and

reasonable inference that people know what they are doing

when they act” (quotations omitted)); id. at 593 (explaining

that “[t]here was no controlling case holding . . . that officers

cannot infer a suspect’s guilty state of mind based on his

conduct alone”).

24 O’DOAN V. SANFORD

2

Nor did any “clearly established law” require the officers

to conclude that probable cause had dissipated once O’Doan

was discharged from the hospital. Our fine colleague in

dissent concludes otherwise by relying on the general

principle that a “person may not be arrested, or must be

released from arrest, if previously established probable cause

has dissipated.” United States v. Ortiz-Hernandez, 427 F.3d

567, 574 (9th Cir. 2005) (per curiam). While we have no

quarrel with that high-level principle, the dissent’s reliance

on it in this context is improper.

The Supreme Court “ha[s] repeatedly stressed that courts

must not define clearly established law at a high level of

generality, since doing so avoids the crucial question

whether the official acted reasonably in the particular

circumstances that he or she faced.” Wesby, 138 S. Ct. at

590 (quotations omitted). In the qualified immunity context,

“[a] rule is too general if the unlawfulness of the officer’s

conduct does not follow immediately from the conclusion

that the rule was firmly established.” Id. (quotations and

alterations omitted). That is the case here.

The authorities the dissent cites applying the

“dissipation” principle involved vastly different

circumstances. In those cases, officers had arrested a person

and then became aware that there was no basis to conclude

the person had engaged in any criminal conduct at all. See,

e.g., Nicholson v. City of Los Angeles, 935 F.3d 685, 691

(9th Cir. 2019) (no probable cause because “it was soon

apparent to the officers that the teenagers were unarmed,

posed no threat to anyone, and were not engaged in any

criminal activity”); Ortiz-Hernandez, 427 F.3d at 574–75

(probable cause dissipated after strip search of suspected

drug dealer revealed “no drugs, no drug paraphernalia, . . .

O’DOAN V. SANFORD 25

no other evidence of drug sales,” and no other incriminating

evidence).

In this case, in sharp contrast, nothing that happened in

the emergency room could or did change the fact that

O’Doan had, without doubt, engaged in illegal conduct—

which the officers had personally observed and experienced

firsthand. The authorities the dissent cites could have

provided no guidance to the officers on the relevant question

here, which is whether law enforcement was compelled to

conclude that a hospital report was dispositive of probable

cause, even though the arrestee had engaged in illegal

conduct.

The nuanced situation in the emergency room only

further bears out our conclusion that officers were entitled to

qualified immunity. O’Doan did tell Leavitt he believed he

had a seizure. But in light of Leavitt’s observations of

O’Doan earlier, Leavitt was not required to credit O’Doan’s

explanation. Wesby, 138 S. Ct. at 588. Leavitt also gave

uncontradicted testimony that, after speaking with a doctor

at the hospital, “it was no, like this does not match up to what

Mr. O’Doan is saying,” and Leavitt found O’Doan’s

behavior “unusual for me, from what I understand a seizure

to be.” Leavitt’s assessment may have been incorrect, but

O’Doan cannot show it was objectively unreasonable. See,

e.g., Wesby, 138 S. Ct. at 591 (“Even assuming the officers

lacked probable cause to arrest the [plaintiffs], the officers

are entitled to qualified immunity because they reasonably

but mistakenly concluded that probable cause was present.”

(quotations and alterations omitted)).

The medical discharge papers that Sanford signed at the

hospital confirm that qualified immunity is warranted.

There is no indication that the discharge papers Sanford

26 O’DOAN V. SANFORD

signed diagnosed O’Doan with epilepsy. And while they did

list O’Doan’s diagnosis as “seizure,” Dr. Di Rocco explained

that this diagnosis was based on O’Doan’s self-reporting.

Nothing in the discharge papers confirmed that O’Doan had,

in fact, suffered a seizure (which not even Dr. Di Ricco could

conclude), much less that O’Doan’s wrongful conduct at the

time of the offenses was the product of a post-ictal state. Nor

did the discharge papers confirm the cause of any seizure.

Instead, the discharge papers contained stock language

about seizures, including that “[t]here are many different

problems that can cause seizures,” and that sometimes what

prompts a seizure cannot be determined. Police officers are

not medical doctors. And the Constitution does not require

that officers consult with expert witnesses before making an

arrest. No clearly established law required the officers here

to treat an emergency room diagnosis as conclusive of a lack

of criminality, especially when the suspect had engaged in

facially unlawful conduct. See Wesby, 138 S. Ct. at 588 (in

probable cause analysis, facts cannot be viewed “in

isolation” (quotations omitted)); Kaley, 571 U.S. at 338

(probable cause “is not a high bar”). Certainly, no clearly

established law required that conclusion in the face of the

limited and largely boilerplate information in the medical

discharge papers here.

The dissent is thus incorrect that the officers are

unentitled to qualified immunity because there is a supposed

factual dispute whether they learned that O’Doan had a

seizure or had epilepsy. There is evidence, as we have

discussed, that Sanford and Leavitt were aware of reports,

ultimately sourced to O’Fria and later O’Doan, that O’Doan

had had a seizure at some point prior. We have more

difficulty with the suggestion that the officers knew that

O’Doan was reported to have epilepsy, as the sources for that

O’DOAN V. SANFORD 27

suggestion are 911 calls the officers did not hear and medical

files they did not receive. But we will assume for purposes

of this appeal that the officers did receive reports,

attributable either to O’Fria or O’Doan, that O’Doan was

epileptic. The dissent is thus incorrect in claiming that we

are “crediting” the officers’ testimony. We are instead

construing disputed facts in favor of O’Doan and explaining

why qualified immunity is nonetheless required.

The officers’ awareness that O’Fria or O’Doan had

reported O’Doan having a seizure or epilepsy do not change

the equation. Supreme Court precedent is clear that

“probable cause does not require officers to rule out a

suspect’s innocent explanation for suspicious facts.” Wesby,

138 S. Ct. at 588. Here, the facts were not merely suspicious

of potential criminal wrongdoing but reflected conduct that

on its face violated Nevada law. The Supreme Court has

acknowledged case law recognizing that “it would be an

unusual case where the circumstances, while undoubtedly

proving an unlawful act, nonetheless demonstrated so clearly

that the suspect lacked the required intent that the police

would not even have probable cause for an arrest.” Id. at 592

(quotations omitted). Nothing in clearly established law

would have indicated to Sanford and Leavitt that this was

such an “unusual” case.

What this means is that no clearly established law

required the officers to credit O’Fria and O’Doan’s

explanation and deem true a possible defense, namely, that

O’Doan lacked the wherewithal to be responsible for

unlawful conduct. See Everson, 556 F.3d at 500.

“[I]nnocent explanations—even uncontradicted ones—do

not have any automatic, probable-cause-vitiating effect.”

Wesby, 138 S. Ct. at 592. And even if Sanford and Leavitt

had credited O’Fria and O’Doan’s explanations as a general

28 O’DOAN V. SANFORD

matter, nothing required the officers to reach the further

conclusion that O’Doan was in a post-ictal state when he

engaged in the wrongful acts. Dr. Di Rocco himself could

not make that assessment. If qualified immunity means

anything, it is that clearly established law did not require

officers to make a medical judgment that not even O’Doan’s

treating physician was willing to hazard.

The dissent thus errs in concluding that a report from

O’Doan’s expert, Dr. Gary Greenberg, creates a dispute of

material fact. Dr. Greenberg opined that O’Doan had an

epileptic seizure before the officers arrived on the scene and

“was in a post-ictal state when [EMS] and Reno police

arrived.” But Dr. Greenberg does not claim the officers

diagnosed, or should have been able to diagnose, O’Doan’s

post-ictal state. Nor could he offer such an opinion.

Dr. Greenberg’s report in fact states that “[c]ertainly, I am

not knowledgeable about proper police procedure in the

apprehension” of persons like O’Doan. Moreover,

Dr. Greenberg described how “in a post-ictal phase a patient

may appear outwardly appropriate but still [be] undergoing

seizure activity,” which makes the officers’ decisions here

that much more understandable.

In all events, the dissent’s focus on Dr. Greenberg

incorrectly frames the inquiry. Probable cause and qualified

immunity are assessed from “the standpoint of an objectively

reasonable police officer,” Wesby, 138 S. Ct. at 586

(quotations omitted), not the after-the-fact perspective of a

medical expert. We can assume the truth of Dr. Greenberg’s

expert report and still conclude that, under the legal

standards that govern, the officers did not violate clearly

established law in arresting O’Doan.

The dissent’s repeated contention that we have not

abided by the summary judgment standards is therefore

O’DOAN V. SANFORD 29

simply wrong. We have faithfully applied those standards

and have not “ignore[d]” O’Doan’s evidence, as the dissent

mistakenly claims. It is the dissent that reflects an

unwillingness to apply the standards that govern the

qualified immunity analysis—standards the Supreme Court

has repeatedly emphasized in reversing lower courts for

failing to follow them.

3

Finally, we must reject O’Doan’s (and the dissent’s)

contention that O’Doan’s arrest was unconstitutional

because this is “an ‘obvious case’ where ‘a body of relevant

case law is not needed.” Wesby, 138 S. Ct. at 591 (quoting

Brosseau, 543 U.S. at 199). The situations where a

constitutional violation is “obvious,” in the absence of any

relevant case law, are “rare.” Id. at 590. That teaching

resonates even more powerfully in the Fourth Amendment

context. As we have explained, the “obviousness principle,

an exception to the specific-case requirement, is especially

problematic in the Fourth-Amendment context.” Sharp v.

City of Orange, 871 F.3d 901, 912 (9th Cir. 2017). “[T]o

say that it is almost always wrong for an officer in those

circumstances to act as he did” is a “categorical statement”

that is “particularly hard to make when officers encounter

suspects every day in never-before-seen ways.” Id.; see also

West v. City of Caldwell, 931 F.3d 978, 987 (9th Cir. 2019).

The obviousness principle thus has “real limits when it

comes to the Fourth Amendment,” Sharp, 871 F.3d at 912,

and we decline to transgress those limits here. Construing

the facts in the light most favorable to O’Doan, officers were

placed in an emergency situation involving a person acting

dangerously and unlawfully. While it was unclear what

prompted O’Doan’s wrongful behavior, nothing made it

obvious that officers had to accept O’Fria and O’Doan’s

30 O’DOAN V. SANFORD

explanations and conclude on the spot that O’Doan was not

responsible for his actions.

Other aspects of the record only confirm that the

situation here was not “obvious,” but at best ambiguous.

Emergency personnel at the scene, who had nearly fifty

years of EMT experience combined, were emphatic that

O’Doan’s conduct was inconsistent with a post-ictal state

and more consistent with drug usage. Leavitt had the same

concern. We assume that they were mistaken, as we must

on summary judgment. We simply note their testimony to

show that the situation was not an “obvious” one—even to

those with medical training who observed it.

Materials from the Epilepsy Foundation on which

O’Doan relies only reaffirm that the obviousness principle is

inapplicable here. Those materials make clear that “not

every episode of confusion or illegal activity is seizure-

related,” that seizures have many causes, and that

“[d]istinguishing epileptic seizures from episodes resulting

in seizures is beyond reasonable expectations of law

enforcement.” These materials bely any suggestion that the

questions confronting the officers here had any obvious

answer.

O’Doan’s reliance on the Supreme Court’s recent

decision in Taylor v. Riojas, 141 S. Ct. 52 (2020), is

unavailing. There, the Supreme Court held it was obvious

that keeping an inmate in a cell “teeming with human waste”

for six days, and forcing him to sleep naked in raw sewage,

violated the Eighth Amendment. Id. at 53 (quotations

omitted). Taylor only highlights the level of blatantly

unconstitutional conduct necessary to satisfy the

obviousness principle. Suffice to say, this case bears no

reasonable comparison to Taylor.

O’DOAN V. SANFORD 31

We therefore hold that the district court properly granted

qualified immunity to Sanford and Leavitt on O’Doan’s

§ 1983 wrongful arrest claim. 3

C

We lastly consider O’Doan’s § 1983 claim that the

officers violated due process because they did not discuss

O’Doan’s reported seizure in their police report and affidavit

supporting probable cause. O’Doan relies mainly on

Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (en

banc), which states that “there is a clearly established

constitutional due process right not to be subjected to

criminal charges on the basis of false evidence that was

deliberately fabricated by the government.” Id. at 1074–75.

Devereaux does not govern here because O’Doan has not

shown how any clearly established law rendered

unconstitutional the omission of his claimed seizure in the

officers’ reports and affidavit. In Devereaux, we were clear

that to support a deliberate fabrication of evidence claim, the

plaintiff “must, at a minimum, point to evidence that

supports at least one of the following two propositions:

3

Assuming O’Doan can assert a parallel ADA wrongful arrest claim

against the City, see Sheehan, 743 F.3d at 1232, that claim likewise fails.

To make out such a claim and recover money damages (which O’Doan

seeks), O’Doan would need to “prove intentional discrimination on the

part of the defendant.” Duvall v. County of Kitsap, 260 F.3d 1124, 1138

(9th Cir. 2001) (as amended). This standard is met through a showing

of “deliberate indifference,” which “requires both knowledge that a harm

to a federally protected right is substantially likely, and a failure to act

upon that . . . likelihood.” Id. at 1138–39. Based on the record evidence

we have recited above, O’Doan cannot show that the officers acted with

deliberate indifference. See also Updike v. Multnomah County, 870 F.3d

939, 951–52 (9th Cir. 2017) (deliberate indifference “must be a result of

conduct that is more than negligent” (quotations omitted)).

32 O’DOAN V. SANFORD

(1) Defendants continued their investigation of [the plaintiff]

despite the fact that they knew or should have known that he

was innocent; or (2) Defendants used investigative

techniques that were so coercive and abusive that they knew

or should have known that those techniques would yield

false information.” Id. at 1076. Construing the facts in the

light most favorable to O’Doan, neither of those

circumstances is present here. Nor has O’Doan come

forward with “direct evidence of deliberate fabrication.”

Spencer v. Peters, 857 F.3d 789, 799 (9th Cir. 2017)

(emphasis omitted).

In fact, if anything, Devereaux made clear that

allegations analogous to the ones O’Doan raises here would

be insufficient to show deliberate fabrication. That is

because Devereaux held that “withholding exculpatory

evidence . . . cannot in itself support a deliberate-fabrication-

of-evidence claim.” Id. at 1079. Deliberate fabrication, in

other words, must mean something more than a mere

omission. Regardless, we have located no clearly

established law, and O’Doan and the dissent cite none, that

would suggest police officers commit a due process violation

when they omit from their write-ups initial accounts from an

arrestee or others that the arrestee had undergone a seizure

at some point before the unlawful conduct.

In this case, moreover, Leavitt’s report did state that

O’Doan was transported to a hospital to be “evaluated for his

injuries and other possible health issues.” Nothing in clearly

established law suggests that the officers were required to

provide more detail to avoid violating the Constitution (the

police reports likewise did not mention Leavitt’s skepticism

as to whether O’Doan’s claimed seizure had caused his

conduct). While we can agree that more information is

usually better than less and that including more specific

O’DOAN V. SANFORD 33

information about reports of O’Doan’s possible seizure

would have been preferable, the question here is whether

officers violated clearly established law. It is plain they did

not.

The dissent claims that “an even clearer sign of

intentional fabrication” is that Officer Leavitt in a

handwritten portion of his affidavit listed O’Doan’s offense

time at 6:50 pm and his arrest time at 7:02 pm, when in fact

O’Doan was not formally arrested until he was discharged

from the hospital. The dissent is incorrect. If such a minor

discrepancy qualified as a “clear sign” of “intentional

fabrication” sufficient to defeat qualified immunity, law

enforcement officers would find themselves on trial for

nearly every police report they draft. Here, it was certainly

understandable for Leavitt to note O’Doan’s arrest time as

7:02 pm when officers had at that point placed him in

handcuffs and leg restraints. Leavitt’s same affidavit also

specifically (and accurately) notes that O’Doan was later

taken to the hospital for evaluation and released into

officers’ custody.

Police reports can be written quickly, at odd hours, and

with other law enforcement matters pressing. It is

unreasonable to presume, as the dissent does, that Leavitt’s

recordation of the arrest time was part of some elaborate

scheme to fabricate facts. If there was an inaccuracy in

Leavitt’s affidavit, it was a technical one at best. There is no

basis to treat this as a deliberate fabrication of evidence.

* * *

We affirm the district court’s grant of summary

judgment on O’Doan’s federal claims. For the same reasons,

34 O’DOAN V. SANFORD

we affirm the district court’s grant of summary judgment on

O’Doan’s parallel state law claims.

AFFIRMED.

BLOCK, Senior District Judge, dissenting in part:

The majority’s opinion is a textbook example of highly

skilled craftsmanship and spot-on articulation by my

talented colleagues of the legal principles governing

qualified immunity for police officers in the performance of

their duties. If not for one principal flaw in the application of

these principles, I would wholeheartedly cast the third vote

for affirmance. Surely, based upon the majority’s recitation

of the facts, summary judgment would be warranted.

But the problem with the majority’s opinion is that there

are clearly material factual disputes and credibility

determinations that are for a jury – not judges – to resolve.

Accordingly, I dissent from those parts of the opinion

granting summary judgment for the police officers on

O’Doan’s § 1983 false arrest and due process claims, as well

as on his ADA claim. 1

I.

I disagree that reviewing the facts “in the light most

favorable to O’Doan,” as the majority professes to do,

warrants granting summary judgment. The majority has

selectively chosen to overlook other relevant facts that a jury

1

I concur in those parts of the majority’s opinion upholding the

district court’s grant of summary judgment on the excessive force and

failure to train claims.

O’DOAN V. SANFORD 35

should be permitted to consider. The majority’s basic

mistake is its failure to recognize and apply the legal

principles governing summary judgment. Indeed, it makes

no mention of these principles, which are designed to

prevent judges from usurping the province of the jury.

We best articulated the summary judgment test years ago

in T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass’n, 809

F.2d 626 (9th Cir. 1987). Drawing on Supreme Court

precedent and the language of Federal Rule of Civil

Procedure 56, we laid down the following principles:

(1) “Rule 56 provides that summary judgment shall be

rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law.” T.W. Elec., 809 F.2d at 630

(internal quotations omitted).

(2) “Whether a ‘genuine’ issue can be said to exist with

respect to a material fact is often a close question. Clearly,

the nonmoving party must do more than simply show that

there is some metaphysical doubt as to the material facts.”

Id. (internal quotations omitted).

(3) “Instead, the nonmoving party must set forth, by

affidavit or as otherwise provided in Rule 56, specific facts

showing that there is a genuine issue for trial. Hence the

nonmoving party may not merely state that it will discredit

the moving party’s evidence at trial and proceed in the hope

that something can be developed at trial in the way of

evidence to support its claim. Instead, it must produce at

least some significant probative evidence tending to support

the complaint.” Id. (internal quotations and citations

omitted).

36 O’DOAN V. SANFORD

(4) “[T]he issue of material fact required by Rule 56(c)

to be present to entitle party asserting its existence; rather,

all that is required is that sufficient evidence sup porting the

claimed factual dispute be shown to require a jury or judge

to resolve the parties’ differing versions of the truth at trial.

Thus, at this stage of the litigation, the judge does not weigh

conflicting evidence with respect to a disputed material

fact.” Id. (internal quotations and citations omitted).

(5) “Nor does the judge make credibility determinations

with respect to statements made in affidavits, answers to

interrogatories, admissions, or depositions. These

determinations are within the province of the factfinder at

trial.” Id.

(6) “[A]t summary judgment, the judge must view the

evidence in the light most favorable to the nonmoving party:

if direct evidence produced by the moving party conflicts

with direct evidence produced by the nonmoving party, the

judge must assume the truth of the evidence set forth by the

nonmoving party with respect to that fact. Put another way,

if a rational trier of fact might resolve the issue in favor of

the nonmoving party, summary judgment must be denied.”

Id. at 630–31.

(7) “Inferences must also be drawn in the light most

favorable to the nonmoving party. Inferences may be drawn

from underlying facts that are not in dispute, such as

background or contextual facts and from underlying facts on

which there is conflicting direct evidence but which the

judge must assume may be resolved at trial in favor of the

nonmoving party.” Id. at 631 (internal citations omitted).

(8) “Thus, the court’s ultimate inquiry is to determine

whether the specific facts set forth by the nonmoving party,

coupled with undisputed background or contextual facts, are

O’DOAN V. SANFORD 37

such that a rational or reasonable jury might return a verdict

in its favor based on that evidence.” Id. (internal quotations

omitted).

(9) “If the nonmoving party produces direct evidence of

a material fact, the court may not assess the credibility of this

evidence nor weigh against it any conflicting evidence

presented by the moving party. The nonmoving party’s

evidence must be taken as true.” Id.

The same principles apply in assessing whether to grant

summary judgment for a defendant on the grounds of

qualified immunity. See Newmaker v. City of Fortuna,

842 F.3d 1108, 1111, 1116 (9th Cir. 2016).

As a trial judge for the last twenty-six years, I have

granted summary judgment on qualified immunity grounds

to many police officers in recognition of the uncertainties

and life-threatening risks they daily face to protect us. But I

have also been obliged to let a jury make that decision

whenever there are not clearly undisputed, dispositive facts,

and especially when factual resolutions depend on

credibility determinations. Such is this case.

II.

The core issue here is whether the police knew or should

have known they were arresting a criminal or an epileptic.

On this record, this is a quintessential question for a

factfinder, not a judge. No one disputes, nor rationally can,

the obvious: you do not put an epileptic in jail. See Bryan v.

MacPherson, 630 F.3d 805, 829 (9th Cir. 2010) (“A

mentally ill individual is in need of a doctor, not a jail cell”);

see also District of Columbia v. Wesby, 138 S. Ct. 577, 590

38 O’DOAN V. SANFORD

(2018) (defining “clearly established” law). 2 It is “beyond

debate” that you take seizure patients to the hospital, not to

jail. MacPherson, 630 F.3d at 829.

The majority’s palpable failing is that it credits all the

testimony of the police and the emergency personnel and

ignores all the contrary documentary and testimonial

evidence that places their credibility in serious doubt. By

doing so, the majority’s opinion disregards at least three of

the basic summary judgment principles:

(1) The judge does not “make credibility determinations

with respect to statements made in affidavits, answers to

interrogatories, admissions, or depositions. These

2

Justice Gorsuch cogently articulated this “obviousness” principle

as a circuit judge:

In deciding the clearly established law question this

court employs a sliding scale under which the more

obviously egregious the conduct in light of prevailing

constitutional principles, the less specificity is required

from prior case law to clearly establish the violation.

After all, some things are so obviously unlawful that

they don’t require detailed explanation and sometimes

the most obviously unlawful things happen so rarely

that a case on point is itself an unusual thing. Indeed, it

would be remarkable if the most obviously

unconstitutional conduct should be the most immune

from liability only because it is so flagrantly unlawful

that few dare its attempt.

Browder v. City of Albuquerque, 787 F.3d 1076, 1082–83 (10th Cir.

2015) (internal quotations and citations omitted); see also Northern v.

City of Chicago, 126 F.3d 1024, 1028 (7th Cir. 1997) (“[T]he police

cannot obtain immunity for liability for false arrest by arresting people on

preposterous charges and then pointing to the absence of any judicial

decision that declares the statutory interpretation underlying the charges

to be preposterous.”).

O’DOAN V. SANFORD 39

determinations are within the province of the factfinder at

trial.” T.W. Elec., 809 F.2d at 630.

(2) “If the nonmoving party produces direct evidence of

a material fact, the court may not assess the credibility of this

evidence nor weigh against it any conflicting evidence

presented by the moving party. The nonmoving party’s

evidence must be taken as true.” Id. at 631

(3) “Inferences must also be drawn in the light most

favorable to the nonmoving party. Inferences may be drawn

from underlying facts that are not in dispute, such as

background or contextual facts and from underlying facts on

which there is conflicting direct evidence but which the

judge must assume may be resolved at trial in favor of the

nonmoving party.” Id. (internal citations omitted).

Just a few examples will suffice to explain how the

majority ignores these principles.

A. At the Scene

1. The Facts

It all began with the 911 call by O’Fria. The detail is

important. At about 6:45 on the evening of July 15, 2016,

O’Fria made a 911 call from her home in the Shade Tree

Trailer Park in Reno, Nevada, to report that she needed an

ambulance because her “boyfriend had an epileptic seizure.”

She thought it was “very, very bad” and said that “[h]e is

nude and he tends to wander the neighborhood.”

The 911 operator immediately called “paramedics” who

asked for the “address of the emergency.” Subsequently,

someone named Piper (presumably the 911 operator) called

“Dispatch.” Piper gave dispatch O’Doan’s address and said

40 O’DOAN V. SANFORD

that the “[p]atient is postictal and violent at this time.”

Dispatch then said, “[a]ll right. I’ll let them know.”

Moments later, someone named Emily called 911 from

dispatch and had O’Fria patched in. Before O’Fria spoke,

Emily commented that O’Doan “is postictal and very

uncooperative and violent.” O’Fria told dispatch and 911

that O’Doan “has epilepsy” and twice told them that he is

“having a very bad epileptic seizure.” O’Fria then said that

O’Doan is “trying to leave,” “he’s naked,” “[h]e’s trying to

break out of the window, and “[h]e’s hurting himself very,

very bad.” Someone on this three-way call told O’Fria: “I

will let [emergency personnel] know” about O’Doan’s

seizure. The transcribed record then reports that there may

have been a disconnect.

O’Fria then called 911 again and stated that O’Doan “is

in a fugue state right now,” “last time the cops attacked him

for not listening,” and “please make sure they know he’s

epileptic.” The operator responded that “the officers have to

do whatever they have to do to keep themselves and

everybody else safe,” and “I did let them know that . . . he’s

having a grand mal seizure.”

Although the transcript is not a paradigm of clarity, it is

apparent O’Fria then repeated that “[h]e is epileptic,”

explaining that “he is having a grand mal seizure,” and

begged the operator to “make sure that [the cops] know he’s

epileptic.” The call ended with the operator saying, “I am

going to let the officers know everything.”

I have listened to the audio, which is an exhibit, and

believe that what is translated on the written transcript,

although commingled and somewhat disjointed, is

substantively correct. I have labored to report it fully and

O’DOAN V. SANFORD 41

accurately because it bears directly on the critical issue of

the officers’ knowledge.

Officer Sanford claims that although he had all the

dispatch information in his police car, he never listened to

all the 911 calls and had only a limited recollection of what

was communicated to him. Here is his testimony about his

abject ignorance:

First, he said “I didn’t hear the 911 call before I arrived

on the scene.” Under continued questioning, Officer Sanford

initially persisted in his lack of knowledge about the 911

calls. But, finally, he acknowledged being advised before he

got to the scene that “the subject is in a grand mal seizure”

and that the “last time officers attacked him [was] due to him

being in a seizure.”

Officer Leavitt testified similarly. Like Officer Sanford,

he professed to have limited knowledge of the 911 calls. And

the majority credits his testimony that “he did not remember

reading the EMS advisory on the car computer and was not

aware, upon arriving at the scene, that O’Doan had allegedly

suffered a seizure.” The majority goes further. While

acknowledging that although “[t]here is evidence . . . that

Sandford and Leavitt were aware of reports, ultimately

sourced to O’Fria and later O’Doan, that O’Doan had had a

seizure,” it discounts this evidence because it credits the

officers’ testimony that they “did not hear” the 911 calls.

But the record reflects that the officers acknowledged

having some knowledge – albeit limited – of what was

communicated to them before they arrived at the scene. A

jury should assess their credibility and determine what they

knew or should have known about O’Doan’s condition. It

may not agree with the majority’s factual finding that the

officers “did not hear the 911 calls.”

42 O’DOAN V. SANFORD

The majority also supports its decision by crediting the

testimony of the “emergency personnel at the scene” who

“did not believe O’Doan had suffered a seizure or that he

was in a ‘post-ictal’ (post seizure) state.” In particular, the

majority relies on the testimony of two firefighters who

“believed [O’Doan] was on drugs.” One of them, Trevor Alt,

boasted that “he would disagree with [any] doctor” who

determined that O’Doan was in a post-ictal state.

In fact, plaintiff’s expert, Dr. Greenberg – a specialist in

emergency medicine who never had the opportunity to

testify – had opined in his expert report that “Mr. O’Doan

had experienced a grand mal seizure and was in a post-ictal

state when REMSA and Reno police arrived,” and that

O’Doan “was substantively not in a rational mental state . . .

[nor could he] understand the nature and quality of his

action.”

The majority also references firefighter Blondfield’s

testimony that although he “informed EMS that O’Fria had

told him on the scene that O’Doan had a history of seizures,”

he “did not recall EMS’s response,” nor did he “recall

passing on this information to the police officers.”

The majority makes the further finding that even if the

officers knew that O’Doan was “having a seizure or

epilepsy,” the facts reflected “potential criminal

wrongdoing” and “conduct that on its face violated Nevada

law.” Presumably, the law the majority has in mind is that it

would be indecent exposure to run around naked in public.

There is, however, another Nevada law, which a jury could

assess if it were given the opportunity to pass upon the facts

that are truly at the heart of this case. Nev. Rev. Stat.

§ 433A.160 (2015) authorizes the police to “[t]ake a person

alleged to be a person with mental illness into custody to

apply for emergency admission of the person for evaluation,

O’DOAN V. SANFORD 43

observation and treatment” and to “[t]ransport the person . . .

to a public or private . . . hospital.”

Officer Leavitt testified that at the scene O’Doan was

looking at him with “an upset face, angry that I’m there.”

But although O’Doan “presented towards [Leavitt] like he

would have come towards [Leavitt] right there,” O’Doan

never “actually attack[ed him.]” The officers restrained

O’Doan, who was 5’3” and weighed 160 pounds, with a

“reverse reap throw” to prevent him from hurting himself.

As the majority opinion recounts, “[w]hile O’Doan suffered

some abrasions during this episode, his injuries were minor.”

Notably, O’Doan was not arrested at the scene. Rather,

as the majority writes, “EMS administered a sedative,”

which began to relax him. O’Doan “was then loaded onto a

gurney and into an ambulance,” and transported to the

hospital. The majority opinion then recounts Officer

Leavitt’s testimony “that because it was ‘uncommon to have

an individual naked running down the street,’ officers in that

type of situation want to ensure persons like O’Doan are ‘not

on any foreign substances to make them mentally not sound

there, to make them act in this behavior that isn’t common.’”

Based on this suspect record, if I were still a trial lawyer,

I would have a field day cross-examining the police officers

and firefighters whose testimony the majority fully credits.

And I’m fairly confident that a jury might believe that Dr.

Greenberg’s knowledge of medicine is superior to that of

firefighter Alt’s. But, the most telling part of my cross-

examination would focus on Officer Leavitt’s testimony.

2. Cross-Examination

The following would be a snippet of the questions I

would ask Officer Leavitt:

44 O’DOAN V. SANFORD

Q. The 911 Operator testified that she “let the officers

know everything.” How then can you claim that “you did not

hear the calls” or know why the EMS was being dispatched

to the scene?

Q. Did you have any reason to believe, therefore, that

you were being dispatched to a crime scene?

Q. Isn’t the reason why you had to administer a “reverse

reap throw” was because you saw that O’Doan was thrashing

around while running around naked and at risk of hurting

himself?

Q. Isn’t it true that O’Doan was not a threat to you and

“he never actually attacked you?”

Q. Did you really believe that a person reportedly in the

throes of an epileptic episode and running around naked was

committing a crime?

Q. Are you aware that under Nevada’s indecent exposure

law the exposure must be intentional?

Q. Are you aware that under Nevada law the correct

police response for someone in O’Doan’s condition was to

take him into custody to transport him to a hospital for

“evaluation, observation and treatment?”

Q. O’Doan only sustained “minor injuries” from the

“reverse reap throw” and you did not arrest him at the scene.

You testified that it was “uncommon to have an individual

naked running down the street and that you wanted to ensure

that persons like O’Doan are “not on any foreign substances

to make them mentally not sound there, to make them act in

this behavior that isn’t normal.” Isn’t the primary reason

O’DOAN V. SANFORD 45

O’Doan was placed in a gurney and taken to the hospital was

because of his mental condition?

Q. O’Fria told the 911 Operator that O’Doan was

“having an epileptic seizure,” that “[h]e has epilepsy,” and

that “[h]e’s having a very bad epileptic seizure.” And,

further, that “[h]e’s trying to leave,” “he’s naked,” “he’s

trying to break out of the window,” and [h]e’s hurting

himself very, very, bad.” How can it be that you only had

limited knowledge of the 911 calls if you knew O’Doan had

a seizure?

Q. Did you speak with O’Fria about this incident at the

scene, and if not, why not?

Q. If O’Fria had called from an office in the United

States Supreme Court and told you her boyfriend had just

bolted out of the building, was having a seizure and was

running down Pennsylvania Avenue naked, would you arrest

him for indecent exposure?

Based upon Officer Leavitt’s answers to these questions,

the jury would be able to size up his credibility and

determine whether the officers knew or should have known

that O’Doan was an epileptic and had not committed a crime.

B. At the Hospital

I. The Facts

If there was any doubt before O’Doan was sent to the

hospital that he was not in his right mind when he was

running around naked hours earlier, the events at the hospital

confirmed that the officers knew or should have known that

O’Doan did not have the requisite mens rea to warrant his

arrest.

46 O’DOAN V. SANFORD

As succinctly stated in U.S. v. Ortiz-Hernandez:

[a] person may not be arrested, or must be

released from arrest, if previously established

probable cause has dissipated. As a

corollary. . . of the rule that the police may

rely on the totality of facts available to them

in establishing probable cause, they also may

not disregard facts tending to dissipate

probable cause.

427 F.3d 567, 574 (9th Cir. 2005) (internal quotations

omitted); see also Nicholson v. City. of L.A., 935 F.3d 685,

691 (9th Cir. 2019) (“A reasonable officer would know that

participation in an ongoing seizure after any probable cause

had dissipated violates the Fourth Amendment.”).

Thus, qualified immunity does not attach if an arrest

occurs after probable cause dissipates. See Broam v. Bogan,

320 F.3d 1023, 1032 (9th Cir. 2003) (“An officer is not

entitled to [] qualified immunity . . . where exculpatory

evidence is ignored that would negate a finding of probable

cause.”); see also C.L. by and through Leibel v. Grossman,

798 F.App’x 1015 (9th Cir. 2020) (no qualified immunity

for officer whose probable cause dissipated upon learning

suspect was autistic). 3

3

The district court and the majority relied heavily on Everson v.

Leis, 556 F.3d 484 (6th Cir. 2009), noting that it involved an epileptic

man who alleged police did not have probable cause to arrest him due to

a lack of mens rea. The Sixth Circuit found the arresting officer was

entitled to qualified immunity. The majority fails to note the result in

Everson was materially affected by the failures of Everson’s counsel,

who did not respond to the defendant’s summary judgment motion and

was subsequently suspended from the practice of law. In the absence of

O’DOAN V. SANFORD 47

Officer Leavitt acknowledged that O’Doan was not

arrested until he was released from the hospital, about two

hours after he was admitted. He “made the decision at [the

hospital],” and had told that to Sanford, who “did not

object.” At that time O’Doan was not in handcuffs, was in a

hospital gown, had been treated for his epilepsy, and had

been discharged. But instead of sending him home to be

cared for by his girlfriend, Officer Leavitt cuffed him, told

him he was under arrest, put him in a paddy wagon, and

placed him in jail. O’Doan remained there until his mother

bailed him out in the morning.

Officer Sanford did this even though he acknowledged

receiving and signing a seven-page hospital discharge report

that diagnosed O’Doan as having had a seizure. The very

first page of the document expresses clearly, “Your

Diagnosis Was Seizure.” (emphasis in original). In

addition, just three pages before Officer Sanford’s signature,

the document connects O’Doan’s seizure activity to his

broader medical condition of epilepsy:

A seizure is abnormal electrical activity in

the brain. Seizures can cause a change in

attention or behavior (altered mental status).

Seizures often involve uncontrollable

shaking (convulsions). Seizures usually last

from 30 seconds to 2 minutes. Epilepsy is a

brain disorder in which a patient has

repeated seizures over time.

“affidavits or other forms of evidence from Everson’s side,” it is hardly

surprising the Sixth Circuit granted the summary judgment motion.

Everson, 556 F.3d at 496.

48 O’DOAN V. SANFORD

(emphasis added). Whether Officer Sanford knew of the

contents and significance of the document he signed is a

critical question that must be resolved by a jury and not by

judges.

The majority also states that Officer Leavitt “gave

uncontradicted testimony that, after speaking with a doctor

at the hospital . . . [the facts did] not match up to what

Mr. O’Doan is saying.” However, I invite my colleagues to

search the record to locate any support for Officer Leavitt’s

“testimony.” They won’t find it.

The doctor in question was Dr. DiRocco. He

unequivocally testified that he could not recall ever

“discuss[ing] Mr. O’Doan’s diagnosis with the police before

he was released into their custody.” Moreover, he had no

recollection “that the police brought Mr. O’Doan into the

emergency room,” nor “what happened when Mr. O’Doan

was released from [his] care.”

Certainly, Officer Leavitt’s so-called “uncontradicted

testimony” should be subject to cross-examination.

The majority also supports its grant of qualified

immunity because “nothing required the officers to reach the

further conclusion that O’Doan was in a post-ictal state when

he engaged in the wrongful acts” since “Dr. DiRocco himself

could not make that assessment.” Although Dr. DiRocco did

not have definitive knowledge of O’Doan’s condition at the

scene, he nonetheless was able to conclude from the hospital

records that O’Doan had “an epileptic seizure.” And he

would so “testify before a judge.” Clearly, the doctor’s

knowledge and the bases for his conclusion are matters for

resolution by a jury.

O’DOAN V. SANFORD 49

O’Doan was charged under Nevada law with resisting

arrest and indecent exposure – both of which require a

culpable mental state. See Nev. Rev. Stat. § 1999.280.3

(Resisting a Public Officer) (requiring that the prohibited

conduct be committed “willfully”); Nev. Rev Stat.

§ 201.220.1 (Indecent or Obscene Exposure); Young v.

State, 109 Nev. 205, 215 (1993) (requiring “intentional”

exposure to sustain a conviction under § 201.220); Quiriconi

v. State, 95 Nev. 195, 196 n.3 (same). Wisely, better heads

prevailed, and the charges were subsequently dropped.

2. Cross Examination

Here is a condensed version of questions I would ask

Officer Sanford:

Q. Isn’t it true that you signed the discharge papers at the

hospital when you arrested O’Doan?

Q. Explain to the jury how you could have signed on the

seventh page without having any knowledge of any of the

information contained on the other pages?

Q. If you knew that those pages describe O’Doan as

having suffered from a seizure, that they connect O’Doan’s

seizure activity to his broader epilepsy medical condition,

and state that “[e]pilepsy is a brain disorder in which a

patient has repeated seizures over time,” would you still have

agreed with Officer Leavitt that O’Doan should have been

arrested?

Q. If so, why?

Q. Why was O’Doan arrested at the hospital and not at

the scene?

50 O’DOAN V. SANFORD

Q. I assume you understand that the crimes for which

O’Doan was arrested required that he acted intentionally?

Q. Since O’Doan was not arrested at the scene, why was

he arrested at the hospital after he was diagnosed as having

had an epileptic seizure and had been treated for his

epilepsy?

A jury should be permitted to hear the answers to those

questions – as well as being allowed to resolve all the other

factual issues which permeate this entire record.

I have chosen to write a somewhat unconventional

dissenting opinion to dramatize the value and importance of

our jury system and that we should be circumspect in

allowing judges to be factfinders. See Jacob v. City of New

York, 315 U.S. 752, 752–53 (1942) (“The right of jury trial

in civil cases at common law is a basic and fundamental

feature of our system of federal jurisprudence which is

protected by the Seventh Amendment. A right so

fundamental and sacred to the citizen, whether guaranteed

by the Constitution or provided by statute, should be

jealously guarded by the courts.”); Dale Broeder, The

Functions of the Jury: Facts or Fictions? 21 U. Chi. L. Rev.

386, 388 (“The jury system also supposes that the judgment

of twelve men whose differences are resolved through open-

minded discussion is better than the judgment of [the

judge]”). It hopefully will have the added virtue of serving

as a cautionary tale that the concept of qualified immunity

has its limits – especially in the sensitive area of alleged

police misconduct. 4

4

Recent events have placed qualified immunity in the public

spotlight. Judges and the public alike are criticizing what is perceived as

O’DOAN V. SANFORD 51

III

It was also improper for the majority to grant summary

judgment on O’Doan’s ADA wrongful arrest claim. The

Ninth Circuit recognizes ADA claims for arrests “where

police wrongly arrest someone with a disability because they

misperceive the effects of that disability as criminal

activity.” Sheehan v. City of San Francisco, 743 F.3d 1211,

1232 (9th Cir. 2014), rev’d in part on other grounds, City of

San Francisco v. Sheehan, 575 U.S. 600 (2015).

The majority is correct that “O’Doan would need to

“‘prove intentional discrimination’ and that “[t]his standard

is met by a showing of ‘deliberate indifference,’ which

‘requires both knowledge that a harm to a federally protected

right is substantially likely, and a failure to act upon that . . .

tantamount to an absolute bar on police accountability. See Hailey Fuchs,

Qualified Immunity Protection for Police Emerges as Flash Point Amid

Protests, N.Y. TIMES, Jun. 23, 2020, at A16 (“Once a little-known rule,

qualified immunity has emerged as a flash point in the protests spurred

by [George] Floyd’s killing and galvanized calls for police reform.”); see

also Circuit Judge James A. Wynn Jr., Opinion: As a judge, I have to

follow the Supreme Court. It should fix this mistake., WASH. POST, Jun.

12, 2020, https://www.washingtonpost.com/opinions/2020/06/12/judge-

i-have-follow-supreme-court-it-should-fix-this-mistake/ (Qualified

immunity “prevents plaintiffs from pursuing their claims . . . and excuses

ever more egregious conduct from liability”). Justice Sotomayor has

criticized the ever-expanding doctrine of qualified immunity as “an

absolute shield for law enforcement officers.” Kisela v. Hughes, 138 S.

Ct. 1148, 1162 (2018) (J. Sotomayor, dissenting) (finding the majority

opinion “tells the public that palpably unreasonable conduct will go

unpunished.”). She aptly describes the Supreme Court’s “unflinching

willingness” to reverse denials of qualified immunity, while rarely

intervening in wrongful grants of qualified immunity, as “gutting the

deterrent effect of the Fourth Amendment.” Id.

52 O’DOAN V. SANFORD

likelihood.’” (citing Duvall v. City of Kitsap, 260 F.3d 1124,

1139 (9th Cir. 2001)).

The “deliberate indifference” test is satisfied “[w]hen the

plaintiff has alerted the public entity to his need for

accommodation (or where the need for accommodation is

obvious, or required by statute or regulation).” Duvall,

260 F.3d at 1139. Therefore, if the officers knew that

O’Doan’s conduct was a result of a seizure, O’Doan has a

viable ADA wrongful arrest claim. Since the officers’

knowledge is once again at the heart of the issue, summary

judgment is inappropriate.

IV

Finally, summary judgment is also inappropriate on

O’Doan’s § 1983 due process claim that Officers Leavitt and

Sanford violated due process by not discussing O’Doan’s

reported seizure in their police report and supporting

affidavit. The majority is correct that “O’Doan relies

principally on Devereaux v. Abbey, 263 F.3d 1070 (9th Cir.

2001), which states that ‘there is a clearly established

constitutional due process right not to be subjected to

criminal charges on the basis of false evidence that was

deliberately fabricated by the government.’”

However, a jury could come to a different conclusion for

a number of reasons. There are three police records at issue:

(1) Officer Sanford’s police report, (2) Officer Leavitt’s

police report, and (3) Officer Leavitt’s arrest report. Initially,

a jury may infer that the failure of the officers to include

O’Doan’s seizure diagnosis in their police reports – a

diagnosis reached by Dr. DiRocco before O’Doan’s arrest –

was hardly benign. No one reading the police reports would

have any clue of the circumstances surrounding the arrest.

O’DOAN V. SANFORD 53

Officer Leavitt’s arrest report is likewise silent as to

O’Doan’s seizure. But there is an even clearer sign of

intentional fabrication in this report. On the first page,

Officer Leavitt reports that the “Offense Date” occurred at

the scene at “1850” (6:50 pm), and that O’Doan was arrested

there twelve minutes later at “1902” (7:02 pm). This was not

true. And a jury certainly could conclude that Officer Leavitt

knew it since he admitted in his sworn deposition that he

arrested O’Doan two hours later at the hospital.

Based on this entire record, a jury could easily conclude,

and certainly could infer, that the officers wanted to hide the

ball to make this seem like an innocuous indecent exposure

case, and that this falsehood was hardly unintentional.

CONCLUSION

Accordingly, the district court’s grant of summary

judgment must be reversed with respect to O’Doan’s false

arrest, ADA wrongful arrest, and due process claims.