J. J. v. City of San Diego

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

J. K. J., individually, and successor No. 20-55622

in interest to the Deceased Aleah

Jenkins, by and through his D.C. No.

guardian-ad-litem Jeremy Hillyer, 3:19-cv-02123-

Plaintiff-Appellant, CAB-RBB

v.

OPINION

CITY OF SAN DIEGO, a public entity;

DAVID NISLET, in his individual

capacity and official capacity as

Police Chief of the San Diego Police

Department; LAWRENCE DURBIN, an

individual; JASON TAUB, an

individual; DOES, 1–10, Inclusive,

Defendants-Appellees,

and

NICHOLAS CASICOLA,

Defendant.

Appeal from the United States District Court

for the Southern District of California

Cathy Ann Bencivengo, District Judge, Presiding

Argued and Submitted July 6, 2021

Pasadena, California

2 J. K. J. V. CITY OF SAN DIEGO

Filed November 15, 2021

Before: D. Michael Fisher, * Paul J. Watford, and

Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Fisher;

Dissent by Judge Watford

SUMMARY **

Civil Rights

The panel affirmed the district court’s dismissal of an

action brought pursuant to 42 U.S.C. § 1983 alleging

constitutional violations by police officers in their treatment

of Aleah Jenkins, who was arrested at a traffic stop, fell ill

while in police custody, and died nine days later.

When officers discovered, after stopping the car, that

Jenkins was subject to arrest based on a warrant involving a

prior methamphetamine offense, they handcuffed her and

put her in defendant Durbin’s cruiser. Inside the cruiser,

Jenkins vomited, and defendant Taub called for paramedics

but cancelled the call after Jenkins said she was pregnant and

not detoxing. On several occasions during the transport to

the police station, Jenkins groaned and screamed for help.

After fingerprinting Jenkins at the police station, as she lay

*

The Honorable D. Michael Fisher, United States Circuit Judge for

the U.S. Court of Appeals for the Third Circuit, sitting by designation.

**

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

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

J. K. J. V. CITY OF SAN DIEGO 3

on her side, defendants placed her back in the cruiser. About

eleven and a half minutes later they found her unconscious,

called for paramedics, and began CPR. Jenkins fell into a

coma, and died nine days later.

The panel first held that the district court validly

exercised its discretion in choosing to review a bodycam

video that plaintiff had incorporated by reference into the

amended complaint. Second, the district court did not assign

the video too much weight. Lastly, to the extent the district

court found that the video contradicted anything in the

amended complaint, it rejected plaintiff’s conclusory

allegations regarding whether the officers’ conduct met the

legal standard of a constitutional violation.

The panel held that the district court did not err in

dismissing the amended complaint. Addressing the

municipal liability claim brought under Monell v. Dep’t of

Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978),

the panel held that the complaint did not plausibly allege that

any City policy or custom “was the moving force” behind

the constitutional violations Jenkins allegedly suffered.

Rather the allegations suggested that that the moving force

behind the alleged constitutional violation was not a failure

to train, but the officers’ failure to heed their training.

Addressing the claims against the individual officers, the

panel held that the amended complaint failed to allege facts

that would demonstrate either objective unreasonableness or

objective deliberate indifference by either officer.

Considering all the facts in the amended complaint and the

incorporated video, the panel could not say that it was

objectively unreasonable—much less an instance of

objective deliberate indifference akin to reckless

disregard—for the officers to conclude that paramedics were

4 J. K. J. V. CITY OF SAN DIEGO

not needed at the traffic stop. The panel further concluded

that the alleged violative nature of the officers’ conduct, in

failing to recognize and respond to Jenkins’ serious medical

need, was not clearly established in the specific context of

this case. Defendants were therefore also entitled to

qualified immunity under the second prong of the qualified

immunity test.

Dissenting in part, Judge Watford stated that the majority

opinion offered a truncated and highly sanitized account of

the events giving rise to this lawsuit, at least as alleged by

the plaintiff. Although at this stage of the case the panel was

required to accept the plaintiff’s factual allegations as true,

the majority opinion ignored most of the facts alleged in the

complaint. The complaint also expressly incorporated by

reference the contents of a publicly available body camera

video that captures many of the relevant events, yet the

majority opinion turned a blind eye to most of what that

video depicted as well. The plaintiff’s complaint plausibly

alleged that Jenkins, a young African-American woman,

died in police custody because the officer responsible for

transporting her to police headquarters took no action when

she experienced an acute medical emergency. Judge

Watford would reverse the district court’s dismissal of the

claims against Officer Durbin and remand for further

proceedings.

J. K. J. V. CITY OF SAN DIEGO 5

COUNSEL

Kaveh Navab (argued), Navab Law APC, Marina Del Rey,

California, for Plaintiff-Appellant.

Seetal Tejura (argued), Chief Deputy City Attorney; George

F. Schaefer, Assistant City Attorney; Mara W. Elliott, City

Attorney; Office of the City Attorney, San Diego, California;

for Defendants-Appellees.

OPINION

D.M. FISHER, Circuit Judge:

Aleah Jenkins was arrested at a traffic stop and fell ill in

police custody. Tragically, she died nine days later. Her

minor son, J.K.J., brought constitutional claims against the

City of San Diego and two officers who participated in the

traffic stop. The District Court dismissed J.K.J.’s amended

complaint with prejudice. Because we conclude that J.K.J.

failed plausibly to allege a constitutional violation, and that

the officers, alternatively, did not violate clearly established

law and are protected by qualified immunity, we affirm.

BACKGROUND

I. Factual History

We accept as true all factual allegations in the amended

complaint, construing them in the light most favorable to

J.K.J., the non-moving party. Fields v. Twitter, Inc.,

881 F.3d 739, 743 (9th Cir. 2018). We also draw on a

bodycam video that J.K.J. incorporated into the amended

complaint by reference. See Tellabs, Inc. v. Makor Issues &

Rts., Ltd., 551 U.S. 308, 322 (2007).

6 J. K. J. V. CITY OF SAN DIEGO

On November 27, 2018, San Diego police officers

Nicholas Casciola and Jason Taub stopped a Cadillac with

an expired registration. A third officer, Lawrence Durbin,

arrived to provide backup. Inside the Cadillac sat three

people: two men in the front, and Jenkins in the back. The

two men had prior convictions for drug offenses. The

officers knew or became aware of these prior convictions as

they investigated.

Durbin questioned Jenkins, who spoke coherently and

showed no signs of distress. When the officers discovered

that she was subject to arrest based on a warrant involving a

prior methamphetamine offense, they handcuffed her and

put her in Durbin’s cruiser.

With all three passengers secured, the officers searched

the Cadillac. They found “a saran wrap-like plastic . . .

known to law enforcement officers . . . as being commonly

used for narcotics sale.” They also found two wallets, one of

which was full of cash. They did not find any drugs.

Inside Durbin’s cruiser, Jenkins vomited. Taub called for

paramedics and asked Jenkins if she was detoxing. Durbin

asked if she was withdrawing. Jenkins responded: “No, I’m

sick[,] my stomach is turning.” She then added, “I’m

pregnant.” Hearing this explanation, Durbin told Taub,

“Don’t worry about it,” indicating that paramedics were not

needed. Taub approached Jenkins and asked: “Did you eat

something, just for our knowledge?” She responded,

“Mmm-mm,” while shaking her head slightly from side to

side. 1 Taub replied, “Alright, that’s fine. We just wanna

1

On appeal, J.K.J. asserts that Jenkins was “nodding her head,” and

thus that her response to Taub was “conflicting[].” Appellant’s Opening

Br. 32. The amended complaint contains no such allegation. And the

J. K. J. V. CITY OF SAN DIEGO 7

make sure you’re gonna be ok.” Durbin then remarked: “She

says she’s pregnant.” The call to paramedics was canceled.

Durbin began driving Jenkins to a police station for

fingerprinting. The trip took over an hour. En route, Jenkins

told Durbin she did not want to go to jail. She requested

water and a bathroom break. And on several occasions, she

groaned and screamed. When Durbin spoke to her, Jenkins

sometimes responded and sometimes remained silent. At

one point she screamed loudly, “[P]lease help me, please

help me!” and “[O]h my [G]od, please, stop, stop, stop!”

Durbin asked, “What’s going on?” When Jenkins remained

silent for about ten minutes, Durbin stopped the car to check

on her. He opened the rear door and patted her, saying, “I

need you to stay awake.” Jenkins then said, “I’m sick.”

When she again screamed, Durbin told her to “[k]nock it

off.” Jenkins shouted, “[H]elp me[,] please.” Durbin

responded, “[Y]ou’re fine,” and continued driving to the

police station.

On arrival, about three minutes later, Durbin opened the

rear door and again patted Jenkins, who was lying face down

across the backseat. Jenkins screamed and took several

quick, audible breaths, to which Durbin responded: “Stop

hyperventilating . . . you are doing [that] to yourself.”

Durbin then removed Jenkins from the cruiser to the

pavement. Jenkins screamed and asked for help, and Durbin

remarked to an approaching officer: “She doesn’t want to go

to jail.” Shortly thereafter, Durbin and the other officer

fingerprinted Jenkins as she lay on her side, handcuffed.

Durbin asked Jenkins if she still wanted water, and she

video J.K.J. incorporated by reference shows Jenkins move her head

from side to side, not up and down. We rely on the incorporated video,

not J.K.J.’s contradictory assertion in his appellate briefing.

8 J. K. J. V. CITY OF SAN DIEGO

responded at a normal volume: “Yes, please.” After

confirming Jenkins’ identity, Durbin and the other officer

placed her back inside the cruiser.

About eleven and a half minutes later, Durbin opened the

rear door of his cruiser. Jenkins had fallen unconscious.

Durbin immediately removed her from the car and radioed

for paramedics. Soon, another officer arrived with a

breathing tool, and Durbin began CPR. He remarked to the

gathering officers that Jenkins had a narcotics warrant, but

that this was not a narcotics arrest. He then added, “She may

have ingested something,” telling the other officers that he

had Narcan in his trunk. Paramedics arrived. Despite their

efforts, Jenkins fell into a coma. Nine days later, she died.

The amended complaint refers to Jenkins “suffering from an

overdose,” but does not identify a cause of death.

II. Procedural History

In November 2019, J.K.J. filed this lawsuit by and

through his father and personal representative, Jeremy

Hillyer. The District Court granted the defendants’ motion

to dismiss, granting leave to amend. J.K.J. then filed the

amended complaint at issue here, asserting three causes of

action under 42 U.S.C. § 1983. The first, against Taub and

Durbin, was labeled “Unreasonable Search and Seizure—

Denial of Medical Care (42 U.S.C. § 1983).” The second,

against the City, asserted municipal liability under Monell v.

Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690

(1978). And the third, against Taub and Durbin, was labeled

“Deprivation of Life Without Due Process (42 U.S.C.

§ 1983).” The amended complaint also explicitly

“incorporate[d] by reference” the “publicly available

bodycam video of the interaction” between Jenkins and the

officers.

J. K. J. V. CITY OF SAN DIEGO 9

The defendants again moved to dismiss. This time, the

District Court granted the motion with prejudice. The Court

reviewed the bodycam video and concluded that it

comported with J.K.J.’s factual allegations. The Court also

stated: “Th[e] video . . . renders any written allegations

describing what occurred on November 27, 2018, somewhat

superfluous because the Court is not ‘required to accept as

true allegations that contradict exhibits attached to the

Complaint.’” Next, the Court concluded that “if the

[amended complaint] could otherwise avoid dismissal,”

further briefing would be needed to determine whether,

under California law governing survival actions, Jenkins’

other children were required parties. 2

On the merits, the District Court held that J.K.J.’s first

cause of action failed to state a plausible claim for denial of

medical care under the Fourteenth Amendment. The Court

noted J.K.J.’s argument that the claim should instead be

analyzed under a Fourth Amendment reasonableness

standard, but concluded that “it [fares] no better” under that

standard. Additionally, the Court held that Taub and Durbin

are entitled to qualified immunity. As to the second cause of

action, the Court held that J.K.J. failed to state a claim under

Monell because (1) the amended complaint alleged no

plausible violation of Jenkins’ constitutional rights; and (2)

it failed to identify any municipal policy or custom as the

cause of the alleged violation. Lastly, the Court dismissed

the third cause of action, the “Deprivation of Life” claim, as

2

J.K.J. mischaracterizes the District Court’s analysis of this issue.

Contrary to his assertion, the Court never concluded that he failed to

meet California’s requirements for bringing a survivorship action. It

concluded only that Jenkins’ other children might be required parties.

10 J. K. J. V. CITY OF SAN DIEGO

duplicative of the claim for denial of medical care. J.K.J.

timely appealed.

JURISDICTION AND STANDARDS OF REVIEW

The District Court had jurisdiction under 28 U.S.C.

§ 1331. We have jurisdiction to review its final judgment

under 28 U.S.C. § 1291.

“We review de novo . . . a district court’s dismissal for

failure to state a claim; a district court’s decision on qualified

immunity; and a district court’s decision on municipal

liability.” Benavidez v. County of San Diego, 993 F.3d 1134,

1141 (9th Cir. 2021) (citations omitted). “Dismissal with

prejudice and without leave to amend is not appropriate

unless it is clear on de novo review that the complaint could

not be saved by amendment.” Stoyas v. Toshiba Corp.,

896 F.3d 933, 939 (9th Cir. 2018) (quoting Harris v. County

of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012)).

Additionally, we review the decision to incorporate

documents by reference for an abuse of discretion. Khoja v.

Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir.

2018).

ANALYSIS

I. The District Court did not err in relying on the

incorporated video.

At the outset, we address J.K.J.’s argument that the

District Court erred by giving too much weight to the

bodycam video he incorporated by reference into the

amended complaint. J.K.J. says the Court improperly

allowed that video to override his written allegations, using

it to resolve factual disputes and effectively converting the

J. K. J. V. CITY OF SAN DIEGO 11

defendants’ motion to dismiss into a motion for summary

judgment. We disagree.

“Ordinarily, a court may look only at the face of the

complaint to decide a motion to dismiss.” Van Buskirk v.

Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.

2002). However, “[u]nder the ‘incorporation by reference’

rule of this Circuit, a court may look beyond the pleadings

without converting the Rule 12(b)(6) motion into one for

summary judgment.” Id. Specifically, a court may consider

documents “incorporated into the complaint by reference.”

Tellabs, 551 U.S. at 322. Such documents are “assume[d]

. . . [to be] true for purposes of a motion to dismiss.” Khoja,

899 F.3d at 1003 (quoting Marder v. Lopez, 450 F.3d 445,

448 (9th Cir. 2006)). Thus, where the complaint makes

“conclusory allegations that are contradicted by documents

referred to [or incorporated] in the complaint,” a court may

decline to accept such conclusory allegations as true. Tritz v.

U.S. Postal Serv., 721 F.3d 1133, 1135 n.1 (9th Cir. 2013).

On the other hand, “it is improper to assume the truth of an

incorporated document if such assumptions only serve to

dispute facts stated in a well-pleaded complaint.” Khoja,

899 F.3d at 1003 (emphasis added).

The District Court heeded these principles in reviewing

the bodycam video at issue here. First, the Court validly

exercised its discretion in choosing to review the video,

because J.K.J. explicitly incorporated it by reference. This

much J.K.J. concedes. Second, the Court did not assign the

video too much weight. At no point did it allow the video to

“replac[e] or supersed[e] . . . the allegations in the [amended

complaint],” as J.K.J. contends. Appellant’s Opening Br. 55.

On the contrary, the District Court found that the video was

“consistent with” J.K.J.’s factual allegations. Although the

Court stated in dicta that the existence of the video “renders

12 J. K. J. V. CITY OF SAN DIEGO

any written allegations . . . somewhat superfluous,” it then

proceeded to treat J.K.J.’s written allegations as essential for

deciding the motion to dismiss. For instance, the Court

quoted the amended complaint’s allegation that Taub and

Durbin knew Jenkins’ outstanding warrant involved

methamphetamine, and knew the Cadillac’s other occupants

had prior arrests for selling drugs. Likewise, the Court cited

and relied upon J.K.J.’s written allegations concerning the

police training Taub and Durbin received.

Lastly, the District Court did not assume the video to be

true “only . . . to dispute facts stated in” J.K.J.’s pleadings.

Khoja, 899 F.3d at 1003 (emphasis added). To the extent it

found that the video contradicted anything in the amended

complaint, it rejected J.K.J.’s “conclusory allegations”

regarding whether the officers’ conduct met the legal

standard of a constitutional violation. Tritz, 721 F.3d at 1135

n.1. In this, the Court acted within its discretion.

II. The District Court did not err in dismissing the

amended complaint.

We turn now to the heart of J.K.J.’s appeal—his

argument that the District Court erred by dismissing his

amended complaint for failure to state a claim. We consider

J.K.J.’s claims against the City and the individual officers in

turn.

A. Monell Claim

J.K.J.’s sole claim against the City was a municipal

liability claim under Monell. According to the amended

complaint, the City violated Jenkins’ constitutional rights by

employing officers with “dangerous propensities,” by failing

adequately to train and supervise those officers, and by

J. K. J. V. CITY OF SAN DIEGO 13

failing to ensure that arrestees receive proper medical

treatment.

“To bring a § 1983 [Monell] claim against a local

government entity, a plaintiff must plead that a

municipality’s policy or custom caused a violation of the

plaintiff’s constitutional rights.” Ass’n for L.A. Deputy

Sheriffs v. Cnty. of Los Angeles, 648 F.3d 986, 992–93 (9th

Cir. 2011). Here, J.K.J. had to plead facts alleging that

“(1) [Jenkins] was deprived of a constitutional right; (2) the

municipality had a policy; (3) the policy amounted to

deliberate indifference to [Jenkins’] constitutional right; and

(4) the policy was the moving force behind the constitutional

violation.” Lockett v. Cnty. of Los Angeles, 977 F.3d 737,

741 (9th Cir. 2020).

We conclude the amended complaint fell short of this

standard. We limit our discussion to just one of the four

enumerated elements, because this suffices to show that

dismissal was warranted. J.K.J. did not plausibly allege that

any City policy or custom “was the moving force” behind

the constitutional violations Jenkins allegedly suffered. Id.

On appeal, J.K.J. insists otherwise. He says he adequately

asserted a causal link by tracing Jenkins’ death back to the

City’s alleged failure to train and supervise its police

officers. But the record belies this claim. The amended

complaint attributes to the City, in broad terms, a “custom,

policy, and practice of . . . inadequately supervising,

training, controlling, assigning, and disciplining” officers.

But even recognizing that “a failure to train can be a ‘policy’

under Monell,” Marsh v. Cnty. of San Diego, 680 F.3d 1148,

1159 (9th Cir. 2012), J.K.J. alleged no facts that would

indicate any “deficiency in training actually caused the

police officers’ [alleged] indifference to [Jenkins’] medical

needs,” City of Canton v. Harris, 489 U.S. 378, 391 (1989).

14 J. K. J. V. CITY OF SAN DIEGO

On the contrary, the amended complaint claimed that San

Diego officers “are trained in accordance with . . . Police

Department policies to take immediate action to summon

medical care” in circumstances like those Taub and Durbin

encountered when they met Jenkins. Indeed, J.K.J. alleged

that Durbin acted “in direct contravention to the policy and

training of the . . . Department.” These allegations suggest

that the moving force behind the alleged constitutional

violation was not a failure to train, but the officers’ failure to

heed their training.

J.K.J. resists this conclusion. He appears to argue that the

officers’ alleged deviation from training indicated “the need

for more or different training.” Harris, 489 U.S. at 390. But

the amended complaint never identified what additional

training was required beyond what Taub and Durbin

received. Nor did it allege facts indicating that this supposed

failure to enhance officer training was the moving force

behind Jenkins’ injuries. Accordingly, J.K.J. failed to state a

claim for municipal liability.

B. Claims Against Taub and Durbin

Next, we consider J.K.J.’s claims against the individual

officers, Taub and Durbin. These included (1) a survivorship

claim—that is, Jenkins’ own claim, brought by J.K.J. on her

behalf—for denial of medical care; and (2) a seemingly

duplicative claim for deprivation of life without due process.

We address each in turn.

1. Denial of Medical Care

Turning first to the denial of medical care claim, J.K.J.

contends the District Court erred by not applying a Fourth

Amendment standard in addition to a Fourteenth

J. K. J. V. CITY OF SAN DIEGO 15

Amendment analysis. He also says the Court improperly

concluded that he failed to state a claim.

Pretrial detainees in state custody “have a constitutional

right to adequate medical treatment” under the Fourteenth

Amendment. Sandoval v. Cnty. of San Diego, 985 F.3d 657,

667 (9th Cir. 2021). “[C]laims for violations of [this] right

. . . [are] evaluated under an objective deliberative

indifference standard.” Gordon v. Cnty. of Orange, 888 F.3d

1118, 1124–25 (9th Cir. 2018). As we have recently

elaborated, the elements of such a claim are:

(i) the defendant made an intentional decision

with respect to the conditions under which

the [decedent] was confined; (ii) those

conditions put the [decedent] at substantial

risk of suffering serious harm; (iii) the

defendant did not take reasonable available

measures to abate that risk, even though a

reasonable official in the circumstances

would have appreciated the high degree of

risk involved—making the consequences of

the defendant’s conduct obvious; and (iv) by

not taking such measures, the defendant

caused the [decedent’s] injuries.

Id. at 1125. “With respect to the third element, the

defendant’s conduct must be objectively unreasonable, a test

that will necessarily turn on the facts and circumstances of

each particular case.” Id. (quoting Castro v. Cnty. of Los

Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016)) (alteration

and internal quotation marks omitted). “The mere lack of due

care by a state official does not deprive an individual of life,

liberty, or property under the Fourteenth Amendment.” Id.

(quoting Castro, 833 F.3d at 1071) (internal quotation marks

16 J. K. J. V. CITY OF SAN DIEGO

omitted). Accordingly, the plaintiff must plausibly allege

facts demonstrating “more than negligence but less than

subjective intent—something akin to reckless disregard.” Id.

Under the Fourth Amendment, which J.K.J. says should

also apply here, officers are prohibited from using

“excessive . . . force . . . in the course of transporting an

arrestee.” Fontana v. Haskin, 262 F.3d 871, 879 (9th Cir.

2001) (quoting Robins v. Harum, 773 F.2d 1004, 1010 (9th

Cir. 1985)). A failure to summon emergency medical aid

can constitute excessive force if it is “objectively

[un]reasonable.” Tatum v. City & Cnty. of San Francisco,

441 F.3d 1090, 1099 (9th Cir. 2006).

We assess objective unreasonableness, under both the

Fourth and Fourteenth Amendments, “from the perspective

of a reasonable officer on the scene, including what the

officer knew at the time, not with the 20/20 vision of

hindsight.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473

(2015); see also Graham v. Connor, 490 U.S. 386, 396

(1989).

Here, J.K.J.’s amended complaint referred in passing to

both the Fourth and Fourteenth Amendments. It introduced

the denial of medical care claim with a heading that echoed

the Fourth Amendment: “Unreasonable Search and

Seizure.” But J.K.J. never alleged that the officers’ conduct

amounted to excessive force. For purposes of this appeal, we

need not decide whether the Fourth Amendment also

governs J.K.J.’s claim for denial of medical care, because,

under both standards, dismissal was warranted for two

reasons.

First, the amended complaint failed to allege facts that

would demonstrate either objective unreasonableness or

objective deliberate indifference by either officer. Taub

J. K. J. V. CITY OF SAN DIEGO 17

canceled the paramedics call after speaking with Durbin and

Jenkins at the traffic stop. The officers asked Jenkins

whether she was withdrawing or detoxing, and she

responded no, explaining that she was sick, her stomach was

turning, and she was pregnant. A few moments later, Taub

asked Jenkins directly: “Did you eat something, just for our

knowledge?” Jenkins, no longer vomiting, responded

“mmm-mm” while shaking her head slightly from side to

side. Taub then replied: “Alright, that’s fine. We just wanna

make sure you’re gonna be ok.” Jenkins next asked for a

napkin to clean herself up—“C’mon, man, I’m too pretty for

this”—but said nothing to indicate she might require medical

aid. Considering all the facts alleged by J.K.J. in the

amended complaint and the incorporated video, we cannot

say it was objectively unreasonable—much less an instance

of objective deliberate indifference akin to reckless

disregard—for the officers to conclude that paramedics were

not needed at the traffic stop.

On appeal, J.K.J. insists the officers should have

discounted Jenkins’ statements, including her response to

Taub’s question about eating anything, because “it is

common knowledge to police officers that individuals do not

admit to crimes.” Appellant’s Opening Br. 31. Likewise, he

says, the officers should not have heeded Jenkins’

explanation that she was pregnant, because that statement

“d[id] not outweigh the objective signs that she was

vomiting, along with the totality of the other information”

known during the traffic stop. Id. at 32 n.3. Ultimately, J.K.J.

argues, Jenkins’ statements could not relieve the officers of

their “constitutional obligations to provide medical care to a

detainee who is overdosing.” Id.

But whether, assuming the truth of J.K.J.’s factual

allegations, Taub and Durbin should have known that

18 J. K. J. V. CITY OF SAN DIEGO

Jenkins was overdosing, or otherwise known that she had a

serious medical need, is precisely the question. In answering

that question, J.K.J. ignores the context of the traffic stop

and examines the situation “with the 20/20 vision of

hindsight.” Kingsley, 135 S. Ct. at 2473. He ignores the fact

that Jenkins’ encounter with police began as a stop for an

expired vehicle registration and that no drugs were found in

the Cadillac. The search did reveal a small amount of saran

wrap-like plastic, but a reasonable officer would not

necessarily assume that plastic had recently contained drugs,

or that, if it did, those drugs had been taken by Jenkins. In

any event, the officers took reasonable steps to investigate

the possibility that Jenkins had ingested something: they

asked her directly. Jenkins not only denied it, but she

provided alternative explanations for having vomited that

were plausible on their face.

During the drive to the police station, Jenkins told

Durbin she did not want to go to jail. She then intermittently

screamed and asked for help. When Durbin asked what was

wrong, Jenkins never revealed that she had ingested

anything or requested medical care. For long stretches, she

remained quiet. Durbin monitored her behavior, stopping to

check on her after she spent about ten minutes in silence. At

that point, Durbin found Jenkins lying face-down across the

backseat. He asked her to stay awake. She echoed the

explanation she had given for vomiting at the traffic stop—

“I’m sick”—but did not reveal she had taken drugs. Durbin

told Jenkins, “You’re fine,” and said they were nearly to the

station. They arrived about three minutes later. At the

station, Jenkins again screamed, and Durbin remarked to an

approaching officer, “She doesn’t want to go to jail.” When

Durbin later asked Jenkins if she still wanted water, she

calmly responded, “Yes, please.” And when Durbin

J. K. J. V. CITY OF SAN DIEGO 19

ultimately discovered that Jenkins had lost consciousness, he

immediately summoned paramedics and performed CPR.

We do not believe these facts plausibly allege objective

unreasonableness or objective deliberate indifference akin to

reckless disregard. To be sure, we know with the benefit of

hindsight that Jenkins had a serious medical need. But it is

not plausible to infer that “a reasonable official in [Durbin’s]

circumstances would have appreciated the high degree of

risk involved—making the consequences of [his] conduct

obvious” before Jenkins fell unconscious. Gordon, 888 F.3d

at 1125. When she did, Durbin promptly radioed for help.

Until that time, Durbin’s conduct was not “objectively

unreasonable,” id., in light of Jenkins’ prior statements—

including her alternative explanations for having vomited,

her denial that she had ingested anything, and her insistence

that she did not want to go to jail. While it is now evident

that Jenkins ingested some drug, we are not permitted to

project that knowledge backwards in time based on how this

story ended. Because we cannot say that Durbin behaved

objectively unreasonably or with objective deliberate

indifference in failing to recognize, sooner than he did, that

Jenkins had a serious medical need, we conclude that J.K.J.

has not plausibly alleged a violation of Jenkins’

constitutional rights.

Dismissal of the denial of medical care claim was proper

for a second reason: Taub and Durbin are entitled to

qualified immunity. “Qualified immunity shields

government officials under § 1983 unless ‘(1) they violated

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

unlawfulness of their conduct was clearly established at the

time.’” Rico v. Ducart, 980 F.3d 1292, 1298 (9th Cir. 2020)

(quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589

(2018)). As we have just explained, J.K.J. has not plausibly

20 J. K. J. V. CITY OF SAN DIEGO

alleged a violation of Jenkins’ constitutional rights. Prong

one of this test is therefore not satisfied, and qualified

immunity applies on that basis. Prong two, the clearly

established prong, confirms this result. Under that prong,

“[t]he plaintiff bears the burden of proof.” Shooter v.

Arizona, 4 F.4th 955, 961 (9th Cir. 2021) (quoting Romero

v. Kitsap Cnty., 931 F.2d 624, 627 (9th Cir. 1991)). Thus,

unless J.K.J. can show that on the date the officers

encountered Jenkins, it was clearly established that their

conduct was unlawful, qualified immunity applies also

under prong two.

In analyzing whether rights are clearly established, we

look to then-existing “cases of controlling authority” or,

absent such cases, to a “consensus” of persuasive authorities.

Evans v. Skolnik, 997 F.3d 1060, 1066 (9th Cir. 2021)

(quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). “A

clearly established right is one that is sufficiently clear that

every reasonable official would have understood that what

he is doing violates [it].” Rico, 980 F.3d at 1298 (quoting

Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)). The

Supreme Court has cautioned that we do not analyze whether

rights are clearly established “at a high level of generality.”

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). Nor do we

take the extreme opposite approach, requiring a prior case

“on all fours.” Rico, 980 F.3d at 1298. Our inquiry, instead,

is whether “the violative nature of [the defendant’s]

particular conduct is clearly established . . . in light of the

specific context of the case.’” Id. (quoting Hamby v.

Hammond, 821 F.3d 1085, 1091 (9th Cir. 2016)). Qualified

immunity thus protects “all but the plainly incompetent or

those who knowingly violate the law.” Id. (quoting Wesby,

138 S. Ct. at 589).

J. K. J. V. CITY OF SAN DIEGO 21

Here, the alleged violative nature of the officers’

conduct, in failing to recognize and respond to Jenkins’

serious medical need, was not clearly established in the

specific context of this case. The dissent suggests this is yet

another case about an official ignoring a detainee’s obvious

medical need. But calling Jenkins’s medical need “obvious”

misses the forest for the trees. This case involves a detainee

who exhibited signs of medical distress but also obscured the

seriousness of those signs with statements about being

pregnant, not ingesting drugs, and wanting to avoid jail.

None of the precedents cited by J.K.J. comes close to

showing that “every reasonable official” would have

understood that acting as Taub and Durbin did, given the

contradictory facts they had to grapple with at the time,

violated the Constitution. Rico, 980 F.3d at 1298 (quoting

Mullenix, 577 U.S. at 11).

J.K.J. cites three binding authorities. See Frost v. Agnos,

152 F.3d 1124 (9th Cir. 1998); Gibson v. Cnty. of Washoe,

290 F.3d 1175 (9th Cir. 2002), overruled on other grounds

by Castro, 833 F.3d at 1076; McGuckin v. Smith, 974 F.2d

1050 (9th Cir. 1992), overruled on other grounds by WMX

Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997).

He says Frost and Gibson clearly establish that pretrial

detainees have the right not to have their serious medical

needs treated with deliberate indifference. And he says

McGuckin clearly establishes that deliberate indifference

exists where an official “purposefully ignore[s] or fail[s] to

respond to a [detainee’s] pain or possible medical need.”

974 F.2d at 1060.

Setting aside whether J.K.J. accurately states the

holdings of these cases, the problem with his argument is

that “general rules” like the ones he posits “do not by

themselves create clearly established law outside an

22 J. K. J. V. CITY OF SAN DIEGO

‘obvious case.’” Kisela, 138 S. Ct. at 1153 (quoting White v.

Pauly, 137 S. Ct. 548, 552 (2017)). J.K.J. makes no attempt

to show that Frost, Gibson, or McGuckin involved factual

contexts akin to the context of this case. Our review

demonstrates that two of them plainly did not. In Frost,

prison officials knew the plaintiff had a broken leg and

needed crutches to get around, yet denied him an accessible

shower and, in some cases, refused to help him climb stairs.

152 F.3d at 1127–29. There was no question of a failure to

recognize the detainee’s medical need. Similarly, in

McGuckin, the issue was not a failure to recognize the

detainee’s need for surgery, but excessive delays in

performing it. 974 F.2d at 1061–62. That leaves Gibson. In

broad terms, Gibson contains echoes of this case, in that it

involved a failure by law enforcement to recognize a

detainee’s serious medical need—specifically, his manic

state caused by mental illness. 290 F.3d at 1180–83. But

Gibson did not establish that conduct like Durbin’s is

unlawful; if anything, it established the opposite. Our

holding was that the deputies who mistook the detainee’s

symptoms for mere anger or intoxication were not

deliberately indifferent, because “all [they] knew about [his]

mental condition was what they could observe of his

behavior,” and because that behavior did not “obviously”

connote serious illness. Id. at 1197. Even if our holding in

Gibson had been otherwise, that case involved a

meaningfully distinct factual context, because the detainee

there never plausibly informed the officers that his

symptoms had an innocuous explanation. 3

3

The dissent adds that Sandoval clearly establishes the right to

adequate medical care in “highly analogous” circumstances. Ignoring

that J.K.J. did not make this argument and the plaintiff bears the burden

of proof on this prong, Sandoval is insufficiently analogous for the same

J. K. J. V. CITY OF SAN DIEGO 23

J.K.J. fails to satisfy the clearly established prong of the

qualified immunity test with binding precedent, so he turns

instead to the decisions of district courts. He cites four such

decisions, two of them unpublished. As a rule, we hesitate to

rely on district court decisions when determining clearly

established law. See Evans, 997 F.3d at 1067. That is

because, “as the Supreme Court has pointed out, ‘district

court decisions—unlike those from the courts of appeals—

do not necessarily settle constitutional standards.’” Id.

(quoting Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011)).

Even if we were to rely on the cases cited by J.K.J., four

hardly make a “consensus of cases of persuasive authority.”

Id. at 1066 (quoting Wilson, 526 U.S. at 617). And finally,

even on J.K.J.’s own telling, three of the four do not fit this

case: in one, he says, the officer (unlike Taub and Durbin)

“was aware” the detainee was under the influence of drugs;

in another, the officers (again unlike Taub and Durbin)

“were told [the detainee] was overdosing”; and in a third, the

court concluded the officers were entitled to qualified

immunity. Appellant’s Opening Br. 37–38 n.5. In sum, J.K.J.

has failed to carry his burden of showing that the alleged

unlawfulness of the officers’ conduct was clearly established

at the time they encountered Jenkins. We conclude that Taub

and Durbin are also entitled to qualified immunity under

reason as the cases cited by J.K.J.: the official knew or should have

known the detainee had a serious medical need. Sandoval held that a

nurse violated clearly established law when he largely ignored a detainee

who he was told needed medical attention. Sandoval, 985 F.3d at 680.

Sandoval does not address whether the arresting officers would have

violated clearly established law if they had failed to recognize the

detainee needed medical attention.

24 J. K. J. V. CITY OF SAN DIEGO

prong two, and that the District Court properly dismissed

J.K.J.’s denial of medical care claim against them. 4

2. Deprivation of Life Without Due Process

We turn, next, to J.K.J.’s claim for deprivation of life

without due process. The District Court dismissed this claim

as duplicative of the denial of medical care claim. J.K.J.

contends this was error, insisting that he pleaded an entirely

distinct cause of action—his own claim for the

4

We must pause here to address the dissent’s critique of our

qualified immunity analysis. The dissent asserts that the second prong

turns on whether an accused officer made a mistake of fact or a mistake

of law. According to the dissent, if an officer made a mistake of law, the

Court looks to precedent for factually analogous circumstances showing

that the law was clearly established; but if the officer made a mistake of

fact, the Court simply evaluates that mistake for reasonableness without

looking to precedent. Not so. This Circuit has repeatedly held that courts

should look to precedent for evidence that the unlawfulness of an

officer’s conduct is clearly established. To find an example, this Court

need only look so far as the cases cited by the dissent. See Jensen v. City

of Oxnard, 145 F.3d 1078, 1085–86 (9th Cir. 1998) (evaluating the

accused officer’s shooting of a fellow officer he mistook for a suspect

against previous excessive force cases involving officer-on-officer

shootings); Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th Cir. 2003)

(comparing the accused officers’ shooting of a fellow officer they

mistook for a suspect to the officer’s shooting in Jensen); Torres v. City

of Madera, 648 F.3d 1119, 1128–29 (9th Cir. 2011) (likening the accused

officer’s misidentification of a gun as a taser to the officers’

misidentification of officers as suspects in Jensen and Wilkins). If,

however, we were to apply the dissent’s distinction, we still reach the

same conclusion. Officer Durbin’s mistake is better characterized as a

mistake of law: He mistook the legal constraints on summoning medical

care when an arrestee is experiencing a non-obvious medical emergency.

Thus, even using the dissent’s framework, this Court would still need to

turn to precedent to look for a clearly established right.

J. K. J. V. CITY OF SAN DIEGO 25

“depriv[ation] of his liberty interest in the companionship

and society of his parent.” Appellant’s Opening Br. 52.

J.K.J. never presented this argument to the District

Court. The defendants, in moving to dismiss both the

original complaint and the amended complaint, asserted that

J.K.J.’s deprivation claim was “a duplication [of] and

redundant [of]” the claim for denial of medical care. In the

District Court’s first dismissal of this case, it concluded the

deprivation claim was duplicative and specifically noted that

“plaintiff [had] not argue[d] otherwise.” Despite this

warning from the Court in its first order and the defendants’

explicit argument the claim was duplicative in its second

motion, J.K.J again failed to dispute that the deprivation

claim was duplicative in its opposition. To be sure, plaintiff

generally opposed dismissal, incorporating by reference his

arguments about the denial of medical care claim, and

writing: “Plaintiff agrees that this cause of action is governed

by the same objective deliberate indifference standard under

[the] Fourteenth Amendment’s due process clause.” But

nowhere does he explain why the claim is not duplicative.

This lack of rebuttal must be categorized as a concession.

We generally do not “entertain[] arguments on appeal

that were not presented or developed before the district

court.” Villanueva v. California, 986 F.3d 1158, 1164 n.4

(9th Cir. 2021) (quoting In re Mercury Interactive Corp.

Secs. Litig., 618 F.3d 988, 992 (9th Cir. 2010)). J.K.J. offers

no reason why we should not follow that rule here.

Accordingly, we conclude that his argument concerning the

deprivation of life claim “has been waived.” Momox-Caselis

v. Donohue, 987 F.3d 835, 842 (9th Cir. 2021).

***

26 J. K. J. V. CITY OF SAN DIEGO

For the reasons stated above, the District Court did not

err in dismissing J.K.J.’s amended complaint. J.K.J. draws

our attention to the fact that the Court’s dismissal was with

prejudice and without leave to amend. But he never squarely

challenges that aspect of the Court’s decision. Merely

mentioning it is not enough: “[W]e cannot ‘manufacture

arguments for an appellant’ and . . . will not consider . . .

claims that were not actually argued in [the] appellant’s

opening brief.” Indep. Towers of Wash. v. Washington,

350 F.3d 925, 929 (9th Cir. 2003) (quoting Greenwood v.

Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)).

Accordingly, we do not address whether denial of leave to

amend was warranted.

CONCLUSION

For the foregoing reasons, the order of the District Court

is AFFIRMED.

WATFORD, Circuit Judge, dissenting in part:

The majority opinion offers a truncated and highly

sanitized account of the events giving rise to this lawsuit, at

least as alleged by the plaintiff. Although at this stage of the

case we are required to accept the plaintiff’s factual

allegations as true, the majority opinion ignores most of the

facts alleged in the complaint. The complaint also expressly

incorporates by reference the contents of a publicly available

body camera video that captures many of the relevant events,

yet the majority opinion turns a blind eye to most of what

that video depicts as well.

The plaintiff’s complaint plausibly alleges that Aleah

Jenkins, a young African-American woman, died in police

J. K. J. V. CITY OF SAN DIEGO 27

custody because the officer responsible for transporting her

to police headquarters took no action when she experienced

an acute medical emergency. Over the course of an hour-

long drive, Officer Lawrence Durbin disregarded obvious

signs of Ms. Jenkins’s medical distress, evidently because he

thought she was “faking” her symptoms as part of a ploy to

avoid going to jail. As I will explain, J.K.J., the plaintiff in

this case and Ms. Jenkins’s minor son, has plausibly alleged

that no reasonable officer in Officer Durbin’s shoes could

have viewed Ms. Jenkins’s rapidly deteriorating medical

condition as some kind of ruse.

Whether J.K.J. can prove this last claim is the key factual

issue that must be resolved by the trier of fact; it cannot be

resolved on a motion to dismiss. If a jury ultimately resolves

this key factual issue in J.K.J.’s favor, he will be entitled to

prevail notwithstanding the defense of qualified immunity

because the law governing Officer Durbin’s actions at the

time was crystal clear: He was required to summon

immediate medical care for Ms. Jenkins. He instead did

nothing, despite objective signs of medical distress that

literally cried out for action. Crediting J.K.J.’s well-pleaded

allegations as true, Ms. Jenkins died as a direct result of

Officer Durbin’s deliberate indifference to her medical

needs. I would reverse the district court’s dismissal of the

claims against Officer Durbin and remand for further

proceedings. 1

1

I agree that J.K.J. has not adequately alleged claims against Officer

Jason Taub or the City of San Diego, and I would accordingly affirm the

district court’s dismissal of the claims against those defendants.

28 J. K. J. V. CITY OF SAN DIEGO

I

Before summarizing the complaint’s allegations, let me

say a word about the video at the center of this case.

According to the complaint, the San Diego County District

Attorney’s Office publicly released the video after

investigating Officer Durbin’s potential criminal culpability

for Ms. Jenkins’s death. The roughly 90-minute video

consists largely of footage taken from Officer Durbin’s body

camera during the incident, although an important 11-minute

segment of the footage has been edited out and the audio is

temporarily muted at several junctures. I include a link to

the video here, 2 albeit with some misgivings. The video

depicts Ms. Jenkins’s agonizing final hours of life. Out of

respect for her family, I would not have drawn further

attention to it but for the fact that J.K.J.’s complaint makes

its contents part of the factual allegations we must review in

order to decide whether his case may proceed.

What follows is a detailed summary of the complaint’s

allegations, as augmented by the video’s footage. At this

stage, we must accept the complaint’s allegations as true

unless they are “blatantly contradicted” by the video, and we

must draw all reasonable inferences from the video in

J.K.J.’s favor. Scott v. Harris, 550 U.S. 372, 378, 380

(2007). To allow readers to judge for themselves whether

anything in the video blatantly contradicts the complaint’s

allegations, I have included references to the timestamp that

appears in the lower left-hand corner of the video. Far from

contradicting the complaint’s allegations, the video supports

virtually every one of them.

2

https://www.youtube.com/watch?v=-cx5dQ_u04k&has_verified=1

J. K. J. V. CITY OF SAN DIEGO 29

The events leading to Ms. Jenkins’s death started with a

routine traffic stop on the afternoon of November 27, 2018.

San Diego police officers pulled over a car in which

Ms. Jenkins was a passenger because the car had expired

registration tags. When officers first encountered

Ms. Jenkins, she was alert, responsive, and seated upright in

the back seat. See First Amended Complaint (FAC) ¶ 27. 3

She provided her name and date of birth to Officer Durbin

and exhibited no signs of illness, much less any sort of

medical distress. She answered the officers’ questions

cooperatively and told them she was on probation.

Officers learned that Ms. Jenkins had an outstanding

warrant for her arrest arising out of a prior

methamphetamine offense. One of the officers asked her to

step out of the car, and she did so on her own without

difficulty. FAC ¶ 28; Video at 2:15–2:30. She stood without

assistance as one of the officers searched her and, when

asked to do so, unclasped and removed a bracelet she was

wearing. Video at 2:35–3:05. She then placed her hands

behind her back and was handcuffed. She walked without

assistance to a patrol car and sat in the back seat as directed.

Video at 6:15–6:35. Meanwhile, officers conducted a search

of the car in which Ms. Jenkins had been riding, which

turned up empty wads of plastic wrap commonly used for

drug sales. FAC ¶ 28; Video at 9:05–9:30.

Officer Durbin asked Ms. Jenkins to step out of the patrol

car in which she had been sitting and asked her to walk to

his patrol car, since he would be the one transporting her for

booking. She again walked on her own and got into the back

seat of Officer Durbin’s patrol car without difficulty, despite

3

The first amended complaint may be found at pages 114–43 of the

Excerpts of Record (Dkt. No. 13).

30 J. K. J. V. CITY OF SAN DIEGO

having her hands cuffed behind her back. FAC ¶ 30; Video

at 9:55–10:25. Officer Durbin commented on Ms. Jenkins’s

compliance with the officers’ instructions during this time,

noting that she was being “straight up with [them.]” FAC

¶ 31; Video at 9:55–10:20.

Roughly 45 minutes after the traffic stop began, while

sitting in the back seat of Officer Durbin’s patrol car waiting

to leave the scene, Ms. Jenkins vomited, repeatedly. FAC

¶¶ 32–33; Video at 11:35–12:30. Officer Durbin walked

over and asked Ms. Jenkins why she was throwing up. She

told him, “I’m sick,” and continued to vomit. Officer Durbin

asked Ms. Jenkins if she was “withdrawing,” and another

officer on the scene, Officer Jason Taub, asked if she was

“detoxing.” Ms. Jenkins told them, “No, I’m sick, my

stomach is turning,” as she continued to dry-heave. FAC

¶ 33. Officer Durbin asked Officer Taub to call the

paramedics, but after Ms. Jenkins told Officer Durbin that

she was pregnant, he told Officer Taub to cancel the call.

FAC ¶ 35. Officer Taub asked Ms. Jenkins if she had eaten

something, but she shook her head to indicate that she had

not. Video at 12:35–12:45.

I agree with my colleagues that, to this point, nothing had

transpired to suggest that Ms. Jenkins was in medical distress

or that she needed immediate medical attention. Maj. op.

at 16–17. Her vomiting was cause for concern, but it could

at least arguably be explained by her claim that she was

pregnant. For that reason, the district court correctly

dismissed J.K.J.’s claims against Officer Taub, as he had no

further interactions with Ms. Jenkins and nothing he had

witnessed triggered a duty to summon medical care.

Officer Durbin was tasked with driving Ms. Jenkins—

who sat alone in the back seat of his patrol car—to a local

jail for booking. Because Ms. Jenkins had once been

J. K. J. V. CITY OF SAN DIEGO 31

arrested on her twin sister’s warrant, Officer Durbin first had

to drive Ms. Jenkins to police headquarters for fingerprinting

so that her identity could be confirmed. Due to heavy rush-

hour traffic, the drive took more than an hour. During that

period, as detailed in the paragraphs that follow,

Ms. Jenkins’s condition deteriorated markedly.

For the first part of the drive, Ms. Jenkins sits quietly in

the back seat, exhibiting no signs of illness. Other than

asking Officer Durbin a few questions and commenting at

one point that she does not want to go to jail, Ms. Jenkins

remains silent. Roughly 20 minutes into the drive, however,

she begins groaning and breathing irregularly. The

complaint describes this labored breathing as “panting,” and

that is a fair characterization based on what can be heard on

the footage from Officer Durbin’s body camera. FAC ¶ 42;

Video at 31:00–32:45. A few minutes later, Ms. Jenkins

begins intermittently screaming and moaning for more than

two minutes. Video at 36:55–39:35. Five minutes after that,

as the complaint alleges and the video confirms,

Ms. Jenkins’s “continual groaning, screaming and panting

increases and becomes louder.” FAC ¶ 43; Video at 45:20.

A brief period of silence ensues, but Ms. Jenkins

suddenly screams again in apparent anguish. “Please help

me, please help me!” she pleads, followed by, “Oh my God,

please stop, stop, stop!” FAC ¶ 45. Her speech is slurred,

her tone of voice is unmistakably that of someone in distress,

and her breathing is irregular, as though she is

hyperventilating. Video at 1:04:40–1:05:30. Officer

Durbin, obviously concerned, asks Ms. Jenkins, “What’s

going on?” along with a series of follow-up inquires, such as

whether she needs water. After five minutes elapse without

any audible response from Ms. Jenkins, Officer Durbin turns

around and peers into the back seat with his flashlight to

32 J. K. J. V. CITY OF SAN DIEGO

check on her. The video does not show what he sees, but as

he turns back around, he says to himself, “Alright, still

breathing.” Video at 1:09:50–1:10:10.

Another five minutes pass without any audible response

from Ms. Jenkins, and Officer Durbin pulls off to the side of

the road to check on her again. He gets out of the car and

walks around to the rear passenger-side door. Ms. Jenkins

is lying on her side across the back seat, and her head must

have been leaning against the door because when Officer

Durbin opens it, her head tumbles out of the car in a manner

suggesting that she is either unconscious or dead asleep.

FAC ¶ 47; Video at 1:14:20–1:14:35. As the complaint

alleges and the video confirms, Ms. Jenkins is listless and

continues to exhibit an “abnormally rapid rate of breathing.”

FAC ¶ 47. Officer Durbin tells Ms. Jenkins, “I need you to

stay awake.” In order to shut the door, he has to push her

head back across the threshold into the car. Video at

1:14:30–1:14:40. As he does so, Ms. Jenkins pleads with

him, “I’m sick.” FAC ¶ 47.

When Officer Durbin gets back into his patrol car,

Ms. Jenkins screams, “Help me please!” FAC ¶ 50; Video

at 1:14:50–1:15:00. He responds by telling her to “knock it

off.” Ms. Jenkins again pleads, “Help me please.” Officer

Durbin responds by saying, “You’re fine” and again tells her

to “knock it off.” FAC ¶ 50. Ms. Jenkins continues to cry

out, “Help me . . . I’m telling you I can’t—,” but what she

says after that is unintelligible. FAC ¶ 50; Video at 1:15:10–

1:15:25.

At this point, as the complaint plausibly alleges, Officer

Durbin “is faced with the objective signs of a serious medical

emergency,” given the drastic decline in Ms. Jenkins’s

condition between the time he first encountered her—when

she was alert, responsive, and appeared perfectly fine—and

J. K. J. V. CITY OF SAN DIEGO 33

now. FAC ¶ 47. Despite observing “the objective signs of

her serious medical needs,” Officer Durbin did not summon

medical care for Ms. Jenkins or even radio ahead to police

headquarters to have medical personnel on hand awaiting

their arrival. FAC ¶¶ 47–48. The complaint plausibly

alleges that any reasonable officer in these circumstances

“would have known that there was a high degree of risk in

not summoning medical attention” for Ms. Jenkins. FAC

¶ 49.

Several minutes after pulling over to check on

Ms. Jenkins, Officer Durbin arrives at police headquarters

and drives into the parking garage. When he opens the rear

door of his patrol car, Ms. Jenkins is lying face down on the

back seat and appears to be unconscious. FAC ¶ 53; Video

at 1:17:17. Officer Durbin taps Ms. Jenkins on the back

repeatedly to rouse her, but she remains face down,

breathing abnormally fast. Officer Durbin tells Ms. Jenkins,

“Stop hyperventilating . . . you are doing that to yourself.”

FAC ¶ 53; Video at 1:17:40–1:18:05. As the complaint

plausibly alleges and the video confirms, while Officer

Durbin stands observing Ms. Jenkins, “her body [begins]

twitching and shaking while lying face down in the back

seat.” FAC ¶ 53; Video at 1:17:50–1:18:20. Yet, despite

“all of the above objective signs of distress and a medical

emergency,” Officer Durbin “made no effort to summon

paramedics, medical care, or have Jenkins evaluated by

medical staff that [were] present at the station.” FAC ¶ 53.

Instead of summoning medical help, Officer Durbin

proceeds with fingerprinting Ms. Jenkins. He asks her to get

out of the car but receives no response. Officer Durbin then

pulls Ms. Jenkins out of the car by her arms, instructing her

to try to get her legs underneath her as her torso clears the

car door’s threshold. Her body is limp, she appears unable

34 J. K. J. V. CITY OF SAN DIEGO

to stand on her own, and her legs simply flop to the ground,

rag doll-like. Video at 1:18:45–1:19:05. As Officer Durbin

drags Ms. Jenkins out of the car in this manner, she screams

in distress and is breathing abnormally fast. FAC ¶ 54.

Now lying on her side on the parking garage floor,

Ms. Jenkins quietly mumbles, “Help me,” but Officer

Durbin ignores her and tells an approaching officer, “She

doesn’t want to go to jail.” FAC ¶ 54. As Officer Durbin

speaks with the other officer about the mechanics of

fingerprinting, Ms. Jenkins remains on the ground,

twitching, mumbling incoherently, and breathing

abnormally fast. FAC ¶¶ 54–55; Video at 1:19:05–1:20:00.

Officer Durbin asks Ms. Jenkins if she wants water, but she

lies listless on the ground and does not respond. 4

Officer Durbin and the other officer take hold of

Ms. Jenkins’s arms, which are still handcuffed behind her

back, and press each of her index fingers onto a mobile

fingerprinting unit while she lies on the parking garage

pavement. Despite being able to walk on her own less than

90 minutes earlier, Ms. Jenkins does not appear capable of

even sitting up under her own power. FAC ¶ 56. She

appears to be going in and out of consciousness, and her

body twitches and shakes. FAC ¶ 56; Video at 1:21:20–

1:22:05.

4

As the majority opinion notes, a short time later, Officer Durbin

asks Ms. Jenkins again if she wants water and this time she responds,

“Yes, please.” Maj. op. at 8; Video at 1:22:40. The majority opinion

states that Ms. Jenkins gave this response “at a normal volume.” Maj.

op. at 8. If that odd observation is meant to suggest that Ms. Jenkins was

behaving as an ordinary, healthy individual would, it is grossly

misleading.

J. K. J. V. CITY OF SAN DIEGO 35

Officer Durbin and the other officer have to lift

Ms. Jenkins up off the ground to put her back in the patrol

car. The officers struggle to get her into the back seat

because she appears to have no control over her limbs.

Frustrated by Ms. Jenkins’s lack of cooperation with their

efforts to get her back in the car, Officer Durbin tells her,

“This isn’t going to go well, Ms. Jenkins, this is going to lead

to an extra charge.” Video at 1:23:05–1:23:20. As he and

the other officer struggle to get Ms. Jenkins into the car, he

yells at her, “Stand up . . . stop faking,” to which Ms. Jenkins

feebly responds, “I’m not.” FAC ¶ 56; Video at 1:23:20–

1:23:35. At this point, it is obvious that she cannot stand on

her own, in stark contrast to her earlier ability to enter and

exit the patrol car without difficulty.

To get Ms. Jenkins into the car, Officer Durbin has to lift

her entire body up and place her face first onto the back seat.

FAC ¶ 57. Her body is completely limp, and her legs and

lower torso hang out of the open car door. Video at 1:23:40–

1:23:50. The other officer pulls Ms. Jenkins’s upper body

across the backseat from the other side of the car, and Officer

Durbin folds her legs into the car so that he can close the

door. FAC ¶ 57; Video at 1:23:45–1:24:00.

Ms. Jenkins is now locked in the back seat of the patrol

car, lying face down, handcuffed, and in obvious medical

distress. Officer Durbin nonetheless walks away and does

not return for more than 11 minutes. Video at 1:24:00–

1:24:10 (timestamp in upper right-hand corner skipping

from 2:02:33 to 2:14:10). It is unclear from the record what

he does during this interval because this segment of his body

camera footage has been edited out of the video.

It is clear, however, that Officer Durbin was not

summoning medical care for Ms. Jenkins during that 11-

minute-plus gap. He returns alone and shakes Ms. Jenkins

36 J. K. J. V. CITY OF SAN DIEGO

in the back seat to check on her. She is totally unresponsive.

FAC ¶ 57; Video at 1:24:15–1:25:00. He pulls

Ms. Jenkins’s body from the car, checks for a pulse, and

says, “I can’t tell if she’s breathing or not.” FAC ¶ 57. Only

at this point does Officer Durbin summon the paramedics.

Video at 1:25:10. He begins performing CPR, but by this

time Ms. Jenkins has stopped breathing and is unconscious.

FAC ¶ 57.

Paramedics soon arrive and take over efforts to

resuscitate Ms. Jenkins. Video at 1:27:55. Despite their best

efforts, Ms. Jenkins never regained consciousness. She fell

into a coma and died nine days later. FAC ¶ 58.

II

J.K.J. alleges two separate claims against Officer

Durbin. The first is a survival claim asserted on

Ms. Jenkins’s behalf that seeks to recover damages for the

injuries she suffered. See Hayes v. City of San Diego,

736 F.3d 1223, 1228–29 (9th Cir. 2013). The second is a

claim asserted on J.K.J.’s own behalf that seeks to recover

damages for the injuries he has sustained (and will sustain)

as a result of his mother’s death. See Moreland v. Las Vegas

Metropolitan Police Department, 159 F.3d 365, 371 (9th

Cir. 1998).

The district court analyzed both claims under the

Fourteenth Amendment’s Due Process Clause, but only the

claim asserted by J.K.J. on his own behalf is governed by the

Fourteenth Amendment. The survival claim asserted on

Ms. Jenkins’s behalf is governed by the Fourth Amendment

because she remained in the custody of the arresting officers

the entire time. See Tatum v. City and County of San

Francisco, 441 F.3d 1090, 1098–99 (9th Cir. 2006); Fontana

v. Haskin, 262 F.3d 871, 878–80 (9th Cir. 2001). The

J. K. J. V. CITY OF SAN DIEGO 37

Fourteenth Amendment applies only after an arrestee has

been booked into jail and thereby becomes, in the eyes of the

law, a pre-trial detainee. But in this context, involving a

claim predicated on the failure to promptly summon medical

care, nothing of consequence turns on whether the person

suffering a medical emergency was an arrestee or a pre-trial

detainee. The standards imposed by the Fourth and

Fourteenth Amendments both require a similar assessment

of whether the officer’s actions were objectively reasonable

under the circumstances. See Sandoval v. County of San

Diego, 985 F.3d 657, 669–70 (9th Cir. 2021) (Fourteenth

Amendment); Tatum, 441 F.3d at 1099 (Fourth

Amendment).

The majority opinion states that it need not decide which

of the two standards applies because the survival claim

asserted on Ms. Jenkins’s behalf fails under both. Maj. op.

at 16. In my view, J.K.J. has alleged facts that easily state a

claim under either standard. For simplicity’s sake, I will

analyze the survival claim under the Fourteenth Amendment

standard that the majority opinion invokes, without

separately analyzing the claim J.K.J. asserts on his own

behalf. 5

5

The majority opinion holds that J.K.J. waived the claim he asserts

on his own behalf, but that is not the case. Maj. op. at 25. J.K.J. opposed

dismissal of the claim asserted on his own behalf in the district court, and

he has challenged the dismissal of that claim on appeal. He did not, as

the majority opinion states, concede that this claim was duplicative of

the survival claim. Id.. In the district court, J.K.J. separately analyzed

the survival claim under both the Fourth and Fourteenth Amendments to

accommodate the district court’s erroneous assumption that the

Fourteenth Amendment governed that claim, even as he insisted—

correctly—that the Fourth Amendment governs instead. When opposing

dismissal of the claim asserted on his own behalf, which is governed by

38 J. K. J. V. CITY OF SAN DIEGO

The discussion that follows tracks the majority opinion,

first analyzing whether J.K.J. has adequately alleged a

violation of the Fourteenth Amendment, and then addressing

whether Officer Durbin is shielded from liability by the

doctrine of qualified immunity.

A

A claim under the Fourteenth Amendment for failure to

provide adequate medical care is governed by “an objective

deliberate indifference standard.” Gordon v. County of

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

v. County of Los Angeles, 833 F.3d 1060, 1067–71 (9th Cir.

2016) (en banc). It requires a showing of the following:

(1) The defendant made an intentional

decision with respect to the conditions under

which the plaintiff was confined [including a

decision with respect to medical treatment];

(2) Those conditions put the plaintiff at

substantial risk of suffering serious harm;

(3) The defendant did not take reasonable

available measures to abate that risk, even

though a reasonable official in the

circumstances would have appreciated the

high degree of risk involved—making the

the Fourteenth Amendment, he incorporated by reference the arguments

he had already made under the Fourteenth Amendment in opposing

dismissal of the survival claim. He further argued that none of the

allegations in the first amended complaint, including the claim asserted

on his own behalf, were redundant. Why the majority opinion construes

this as a waiver of the claim asserted on J.K.J.’s own behalf is a complete

mystery.

J. K. J. V. CITY OF SAN DIEGO 39

consequences of the defendant’s conduct

obvious; and

(4) By not taking such measures, the

defendant caused the plaintiff’s injuries.

Sandoval, 985 F.3d at 669 (alteration in original).

To survive a motion to dismiss, J.K.J. must allege facts

“plausibly suggesting” that each of these elements is

satisfied. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557

(2007). He has done so here.

As to the first element, the allegations summarized above

plausibly suggest that Officer Durbin made an intentional

decision concerning the conditions under which Ms. Jenkins

was confined—specifically, his decision not to summon

medical care at any point before she stopped breathing.

During the hour-long drive to police headquarters, Officer

Durbin observed Ms. Jenkins’s condition deteriorate and

deliberately chose not to take action in response. Nothing

more than that intentional decision to refrain from acting is

required, as we made clear in Castro. There, in the context

of a claim alleging that jail officials failed to protect an

inmate from a violent attack by another inmate, we held that

the first element would not be satisfied “if the officer’s

inaction resulted from something totally unintentional,” such

as “an accident or sudden illness that rendered him

unconscious and thus unable to monitor the cell” in which

the two inmates were housed. 833 F.3d at 1070. No

disabling condition of that sort rendered Officer Durbin’s

failure to summon medical care unintentional here. He saw

and heard all the signs of medical distress Ms. Jenkins

exhibited. He nevertheless made the intentional decision not

to act on those observations, evidently because he thought

40 J. K. J. V. CITY OF SAN DIEGO

Ms. Jenkins was “faking” her condition as a ploy to avoid

going to jail.

As to the second element, J.K.J. has plausibly alleged

that Officer Durbin’s failure to summon medical care put

Ms. Jenkins at “substantial risk of suffering serious harm.”

Sandoval, 985 F.3d at 669. Although the precise nature of

what was ailing Ms. Jenkins may have been unclear, there

can be no doubt that something was seriously wrong with

her. When Officer Durbin first encountered Ms. Jenkins, she

was able to sit upright in the back seat of a car, stand without

assistance, and walk on her own. She was breathing

normally and was alert and responsive when answering the

officers’ questions. By the time Officer Durbin pulled over

to check on her, it was clear that Ms. Jenkins was

experiencing some kind of medical emergency. Her

breathing had become abnormally rapid and irregular; she

was screaming and moaning intermittently, followed by

periods in which she may have been in and out of

consciousness; and she repeatedly told Officer Durbin she

was sick and pleaded for help. By the time Officer Durbin

arrived at police headquarters, Ms. Jenkins’s condition had

deteriorated even more dramatically, as she was no longer

able to sit or stand on her own or even to control the

movement of her limbs to avoid injury while being removed

from the car. Failing to seek medical care for Ms. Jenkins

under those circumstances obviously placed her at

substantial risk of suffering serious harm.

J.K.J.’s allegations satisfy the third element as well, as

they plausibly suggest both that Officer Durbin failed to take

reasonable available measures to abate the risk of serious

harm, and that any reasonable officer in these circumstances

would have recognized the high degree of risk involved.

Under our precedent, this element is purely objective, so

J. K. J. V. CITY OF SAN DIEGO 41

J.K.J. need not allege that Officer Durbin was subjectively

aware of the risk that his failure to summon medical care

posed to Ms. Jenkins. Id. at 678; Gordon, 888 F.3d at 1125

& n.4. J.K.J. need only allege facts plausibly suggesting that

Officer Durbin’s conduct was “objectively unreasonable.”

Castro, 833 F.3d at 1071.

I agree with my colleagues that it was not objectively

unreasonable for Officer Durbin to cancel the call to the

paramedics while he and Ms. Jenkins were still at the scene

of the traffic stop. Maj. op. at 16–17. But the majority

opinion veers badly off track when addressing the events that

transpired from that point forward. As noted at the outset,

the majority opinion ignores most of the complaint’s detailed

allegations concerning the drastic deterioration in

Ms. Jenkins’s condition during the drive to police

headquarters, not to mention the allegations describing the

dire condition Ms. Jenkins was in when Officer Durbin

dragged her out of his patrol car in the parking garage.

The complaint’s allegations, augmented by the video,

plausibly suggest that during the drive to police headquarters

(and certainly upon arrival there), Officer Durbin’s conduct

became objectively unreasonable. The signs of medical

distress that Ms. Jenkins exhibited—her vomiting, moaning,

screaming, irregular breathing, repeated cries for help,

inability to sit or stand on her own, and loss of control of her

limbs—are far outside the range of behavior that any healthy

individual would exhibit. Any reasonable officer observing

those signs would have recognized that Ms. Jenkins needed

immediate medical attention. The majority opinion is

simply wrong in concluding that the first point at which a

reasonable officer would have realized that Ms. Jenkins

faced a serious medical need is when Officer Durbin

42 J. K. J. V. CITY OF SAN DIEGO

returned to the car after a more-than-11-minute absence and

found that she had stopped breathing. Maj. op. at 19. 6

Because the signs of Ms. Jenkins’s medical distress were

so obvious, Officer Durbin’s failure to promptly summon

medical care could be objectively reasonable only if his

mistaken belief that she was “faking” her condition was

itself reasonable. An officer of course has no duty to

summon medical care for someone who is merely feigning a

medical emergency. But the complaint’s allegations,

augmented by the video, plausibly suggest that no

reasonable officer in these circumstances would have

concluded that Ms. Jenkins was feigning medical distress.

Nothing about Ms. Jenkins’s behavior suggested that any

aspect of her condition was contrived, as one can plainly see

from the body camera footage. The video alone nudges

J.K.J.’s allegation that Officer Durbin’s actions were

objectively unreasonable “across the line from conceivable

to plausible,” which is all that is required at this early stage.

Twombly, 550 U.S. at 570.

Finally, J.K.J. has also alleged facts satisfying the fourth

element, which requires a showing that Officer Durbin

caused Ms. Jenkins’s injuries by failing to promptly summon

medical care. At least 28 minutes elapsed between the time

Officer Durbin pulled over to check on Ms. Jenkins and the

6

The majority opinion suggests that Officer Durbin could not have

known sooner than he did that Ms. Jenkins needed medical assistance

because, despite the fact that she repeatedly begged for help and told him

she was sick, she never told him that she had ingested drugs. Maj. op.

at 19. But what caused Ms. Jenkins to experience a medical emergency

is irrelevant to the analysis here. The signs of medical distress she

exhibited were so obvious that any reasonable officer would have

realized that she needed immediate medical attention, even if the exact

cause of the decline in her condition was unknown.

J. K. J. V. CITY OF SAN DIEGO 43

time he finally summoned paramedics. Twenty minutes

elapsed between his arrival at police headquarters and his

call to the paramedics. The facts alleged by J.K.J. plausibly

suggest that, had Officer Durbin summoned medical care at

either of those earlier junctures, Ms. Jenkins’s death could

have been averted.

In short, J.K.J. has stated a claim that Officer Durbin’s

actions were objectively unreasonable and thus violated the

governing legal standards under both the Fourth and

Fourteenth Amendments.

B

The remaining question is whether qualified immunity

shields Officer Durbin from liability. The majority opinion

concludes that it does, but that conclusion is flawed for one

simple reason: An officer cannot claim qualified immunity

based on an unreasonable mistake of fact, and J.K.J. has

plausibly alleged here that Officer Durbin’s mistake of fact

as to Ms. Jenkins’s medical condition was indeed

unreasonable.

The Supreme Court has instructed us to analyze the issue

of qualified immunity in two steps. The first focuses on

whether the officer’s conduct violated a constitutional right,

the second on whether that right was clearly established at

the time of the events in question. Saucier v. Katz, 533 U.S.

194, 201 (2001). We have already addressed the first step:

As discussed above, J.K.J. has plausibly alleged that Officer

Durbin violated both the Fourth and Fourteenth

Amendments by denying medical care to Ms. Jenkins under

circumstances that rendered his conduct objectively

unreasonable.

44 J. K. J. V. CITY OF SAN DIEGO

At the second step, we ask whether the legal constraints

governing Officer Durbin’s conduct were sufficiently clear

“such that any reasonably well-trained officer would have

known that his conduct was unlawful.” Orn v. City of

Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020). An officer

may be entitled to qualified immunity at the second step

based on a mistake of fact or law, but in either scenario the

mistake must be a reasonable one. See Pearson v. Callahan,

555 U.S. 223, 231 (2009); Saucier, 533 U.S. at 205; Demuth

v. County of Los Angeles, 798 F.3d 837, 839 (9th Cir. 2015).

In this case, Officer Durbin did not make a mistake of

law—that is, a mistake “as to the legal constraints on

particular police conduct.” Saucier, 533 U.S. at 205.

Ms. Jenkins exhibited obvious signs that she was

experiencing a serious medical emergency, and the legal

constraints governing an officer’s conduct in those

circumstances were clearly established. Any reasonable

officer would have known that failing to summon immediate

medical care for an arrestee experiencing a medical

emergency is unlawful. See Sandoval, 985 F.3d at 679–80;

Gordon, 888 F.3d at 1124–25; Tatum, 441 F.3d at 1099.

Thus, if Officer Durbin had correctly perceived that

Ms. Jenkins’s signs of medical distress were real and not

contrived, he could not have made a reasonable mistake “as

to the legality of [his] actions.” Saucier, 533 U.S. at 206.

What the law required in this situation was not open to

debate. See Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)

(qualified immunity protects “reasonable but mistaken

judgments about open legal questions”).

The mistake Officer Durbin made was instead a mistake

of fact: He mistakenly believed that Ms. Jenkins was

“faking” her symptoms rather than experiencing an actual

medical emergency. But as we and other courts have

J. K. J. V. CITY OF SAN DIEGO 45

squarely held, if an officer’s mistake of fact is unreasonable,

he is not entitled to qualified immunity based on that

mistake. See, e.g., Jones v. Treubig, 963 F.3d 214, 230–31

(2d Cir. 2020); Demuth, 798 F.3d at 839; Liberal v. Estrada,

632 F.3d 1064, 1076–78 (9th Cir. 2011); Wingrove v.

Forshey, 230 F. Supp. 2d 808, 823–24 (S.D. Ohio 2002).

The dispositive question, then, is whether Officer Durbin

reasonably but mistakenly believed Ms. Jenkins’s medical

distress was feigned.

At this stage of the case, Officer Durbin cannot be

granted qualified immunity because J.K.J. has plausibly

alleged that Officer Durbin’s mistake of fact was

unreasonable. As noted earlier, the many objective signs of

medical distress exhibited by Ms. Jenkins offered no support

for the notion that she was engaged in some kind of ruse.

The video alone plausibly suggests that any reasonable

officer observing the dramatic decline in Ms. Jenkins’s

condition over the course of an hour would have realized that

her vomiting, abnormally rapid breathing, inability to sit or

stand, and loss of control of her limbs were all signs of a true

medical emergency, not part of an elaborate act. When an

officer’s actions are based on an unreasonable mistake of

fact, we determine whether the law governing the officer’s

conduct was clearly established under the facts that the

officer should have correctly perceived. See Torres v. City

of Madera, 648 F.3d 1119, 1127 (9th Cir. 2011). Under

those facts here, as already discussed, Officer Durbin’s

actions violated Ms. Jenkins’s clearly established right to

have medical care summoned immediately. 7

7

It bears noting that whether Officer Durbin honestly believed that

Ms. Jenkins was feigning her condition is irrelevant to the analysis. See

Torres, 648 F.3d at 1127. The only relevant question is whether his

46 J. K. J. V. CITY OF SAN DIEGO

The preceding discussion explains why the majority

opinion wrongly faults J.K.J. for failing to cite cases finding

a constitutional violation in directly analogous

circumstances. Maj. op. at 20–24. That failing would be

relevant if we were dealing with an officer whose conduct

was based on a mistake of law. In that context, a plaintiff

will often need to marshal cases involving factually

analogous circumstances to show that the law was clearly

established. Saucier, 533 U.S. at 205. After all, broad legal

concepts that are designed to “accommodate limitless factual

circumstances,” such as excessive force and probable cause,

can leave considerable uncertainty about “how the relevant

legal doctrine . . . will apply to the factual situation the

officer confronts.” Id.; see, e.g., Anderson v. Creighton,

483 U.S. 635, 640–41 (1987).

No such need to marshal factually analogous cases exists

when an officer’s conduct is based on a mistake of fact. The

key question in that setting is whether the officer’s mistake

was reasonable or not—a factual issue that the jury must

resolve when, as in this case, the underlying facts (or the

inferences to be drawn from those facts) are in dispute. See

Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th Cir.

2003); Jensen v. City of Oxnard, 145 F.3d 1078, 1086–87

(9th Cir. 1998). 8

mistaken belief was a reasonable one. Accepting the complaint’s

allegations as true, it was not.

8

The majority opinion misreads these cases, suggesting that they

require factually analogous precedent establishing the unlawfulness of

an officer’s mistake of fact. Maj. op. at 24 n.4. They do not. In both

cases, we determined whether the legal constraints on an officer’s

conduct were clearly established under the facts that the officer

reasonably should have perceived and searched for factually analogous

J. K. J. V. CITY OF SAN DIEGO 47

Whether an officer’s mistake of fact was reasonable is

assuredly not a legal question, and hence the hunt for

analogous cases is both unnecessary and futile. One will

search the pages of the Federal Reporter in vain looking for

guidance on whether a particular collection of facts shows

that someone is suffering a real as opposed to a feigned

medical emergency. Deciding the reasonableness of an

officer’s mistake as to that issue requires drawing on

common sense and everyday lived experience rather than a

study of legal precedents, which is precisely why resolution

of the issue is entrusted to juries in the first place.

The majority opinion’s characterization of this case as

one concerning a mistake of law—in which Officer Durbin

“mistook the legal constraints on summoning medical care

when an arrestee is experiencing a non-obvious medical

emergency”—cannot be squared with the record. Maj. op.

at 24 n.4 (emphasis added). Officer Durbin did not, as the

majority opinion suggests, make a mistake as to whether the

law required him to summon medical care because the signs

of medical distress Ms. Jenkins exhibited were “non-

obvious.” As the video confirms, those signs were as

obvious as could be; Officer Durbin decided to ignore them

because he thought (incorrectly) that she was “faking” her

condition. See, e.g., Video at 1:23:20–1:23:35. Whether his

cases in making that determination. But with respect to the mistake of

fact, we held that the “crucial question” is whether the officer’s mistaken

belief “was reasonable under the circumstances,” an issue that had to be

left to the jury to resolve. Wilkins, 350 F.3d at 955; see also Jensen,

145 F.3d at 1086–87.

48 J. K. J. V. CITY OF SAN DIEGO

mistake of fact was reasonable cannot be resolved at the

motion-to-dismiss stage. 9

* * *

In sum, the district court erred by dismissing J.K.J.’s

claims against Officer Durbin. J.K.J. has adequately pleaded

both a survival claim on Ms. Jenkins’s behalf under the

Fourth Amendment and a claim on his own behalf under the

Fourteenth Amendment. We should have reversed the

dismissal of those claims and remanded for further

proceedings.

9

Even if we accept the majority opinion’s erroneous insistence on

the need for a factually analogous case establishing the obviousness of

Ms. Jenkins’s medical emergency, we have one. In Sandoval, our court

made clear that the right to adequate medical care was clearly established

in circumstances highly analogous to—and indeed, less dire than—those

presented in this case. There, we held that by 2014 “failing to provide

any meaningful treatment” to a detainee “who was sweating and

appeared so tired and disoriented that a deputy urged that he be re-

evaluated” violated clearly established law, such that any reasonable

official would know that such conduct violated the Constitution.

985 F.3d at 680. The same is necessarily true for failing to provide any

medical treatment to Ms. Jenkins based on her symptoms of vomiting,

irregular breathing, repeated cries for help, inability to sit or stand, and

loss of control of her own limbs. In November 2018, any reasonable

officer would have known, based on the clearly established law in this

circuit, that ignoring these obvious signs of medical distress would

violate Ms. Jenkins’s constitutional rights.