The opinion
FILED
NOT FOR PUBLICATION
APR 8 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
A.B., a minor, individually and as No. 20-56140
successor in interest to decedent,
Kristopher Birtcher, by and through her D.C. No.
Guardian ad Litem, Ryan Birtcher; et al., 3:18-cv-01541-MMA-LL
Plaintiffs-Appellants,
MEMORANDUM*
v.
COUNTY OF SAN DIEGO; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted October 7, 2021
Pasadena, California
Before: GRABER and CHRISTEN, Circuit Judges, and ZOUHARY,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
Plaintiffs appeal the district court order granting summary judgment to
defendants County of San Diego, San Diego Sheriff’s Department, San Diego
Sheriff William D. Gore (collectively, “county defendants”), and eight San Diego
Sheriff’s Deputies (collectively, “deputy defendants”) on the merits of the 42
U.S.C. § 1983 excessive force claim. We have jurisdiction under 28 U.S.C. §
1291, and we affirm. Because the parties are familiar with the facts of this case,
we need not recite them here.
We review de novo a district court order granting summary judgment. L.F.
ex rel. v. Lake Wash. Sch. Dist. #414, 947 F.3d 621, 625 (9th Cir. 2020).
1. To determine whether a defendant is entitled to qualified immunity, we
evaluate: (1) whether defendant’s conduct violated a constitutional right and (2)
whether that right was clearly established at the time of the incident. S.B. v.
County of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017). When evaluating a
Fourth Amendment excessive force claim, we analyze the familiar Graham factors
and ask whether a defendant’s actions were “objectively reasonable” in light of the
facts and circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989). “The
[legal] precedent must be clear enough that every reasonable official would
interpret it to establish the particular rule the plaintiff seeks to apply.” District of
Columbia v. Wesby, 138 S. Ct. 577, 590 (2018).
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Plaintiffs argue that the deputy defendants violated Birtcher’s Fourth
Amendment right to be free of excessive force because: (1) deputy Roland Garza
used his body weight to take down Birtcher as Birtcher first attempted to resist
detention; (2) deputy Garza and deputy John Robledo deployed tasers on Birtcher
four times; (3) Robledo struck Birtcher with his fist and sap baton multiple times;
and (4) deputy defendants used a forceful prone restraint on Birtcher after backup
deputies arrived.
The first three actions represent the use of force only after and in response to
Birtcher’s active resistance to lawful detention. During that part of the encounter,
Birtcher appeared to be under the influence; wrestled with Garza and refused to be
handcuffed; lunged at Garza despite being shot by a taser in probe mode; fled to
the busy Hobby Lobby parking lot; and briefly got hold of Robledo’s baton while
actively resisting the deputy defendants and bystanders, who were attempting to
detain him. Under these circumstances, this use of force was not excessive. See,
e.g., Marquez v. City of Phoenix, 693 F.3d 1167, 1175 (9th Cir. 2012).
The fourth action, the restraint of Birtcher in prone position, lasted for
approximately seven minutes. For the first six and a half of those minutes, Birtcher
continued struggling and actively resisted detention. But during the last 30
seconds, Birtcher stopped moving and was not resisting. Even assuming that the
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deputy defendants used more force than necessary to hold Birtcher in place during
the final 30 seconds, we know of no clearly established law that would have put
them on notice that the force they used was excessive.
Plaintiffs rely on Drummond ex el. Drummond v. City of Anaheim, 343 F.3d
1052 (9th Cir. 2003). The degree of force employed in Drummond, e.g., kneeling
on the suspect’s neck, id. at 1054-55, was much greater than the force the deputy
defendants employed here. Further, Drummond does not stand for the proposition
that, once a suspect stops moving, officers cannot continue holding the suspect in
place. The deputy defendants moved Birtcher into recovery position once they
recognized that he was not moving, and we are aware of no clearly established
authority that would have required them to move Birtcher into that position any
faster. Because of those critical differences, Drummond does not “squarely
govern[] the specific facts at issue.” See Kisela v. Hughes, 138 S. Ct. 1148, 1153
(2018) (per curiam) (internal quotation marks omitted).
2. As for the claim of denial of medical care, we have held that “a police
officer who promptly summons the necessary medical assistance has acted
reasonably for purposes of the Fourth Amendment, even if the officer did not
administer CPR.” Tatum v. City & County of San Francisco, 441 F.3d 1090, 1099
(9th Cir. 2006).
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Here, plaintiffs did not raise a material question of fact that the deputy
defendants failed to summon medical care for Birtcher promptly. The deputy
defendants also administered two Naloxone doses to combat the suspected drug
overdose and, like the officers in Tatum, monitored Birtcher’s breathing while they
waited for medical responders. See id. at 1098.
3. For Fourteenth Amendment substantive due process claims, official
conduct that “shocks the conscience” is cognizable. Porter v. Osborn, 546 F.3d
1131, 1136-37 (9th Cir. 2008) (citation omitted). As a threshold matter, courts
must determine which of two standards applies. The first standard requires a
plaintiff to show that the official acted with “deliberate indifference,” i.e., that the
officer “disregarded a known or obvious consequence of his action.” Nicholson v.
City of Los Angeles, 935 F.3d 685, 693 (9th Cir. 2019) (citation omitted). The
“deliberate indifference” standard applies only if the circumstances are such that
“actual deliberation is practical.” Zion v. County of Orange, 874 F.3d 1072, 1077
(9th Cir. 2017) (citation omitted). The second standard requires a plaintiff to
demonstrate that the official acted “with a purpose to harm unrelated to legitimate
law enforcement objectives.” Nicholson, 935 F.3d at 693 (citation omitted).
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Plaintiffs argue that the district court erroneously applied the “purpose to
harm” standard because the deputy defendants had time to deliberate after Birtcher
was handcuffed.
We agree with the district court that the “purpose to harm” standard applies
because the situation escalated quickly and Birtcher continued actively to resist
detention. The video evidence demonstrates that this was not “a completely
controlled situation in which the police committed an obvious and easily detectable
mistake” that they had time to correct. See Porter, 546 F.3d at 1139-40. Plaintiffs
did not raise a material dispute of fact that the deputy defendants’ actions were
unrelated to law enforcement efforts.
4. To establish liability against a local government for failure to train, a
plaintiff must demonstrate that the government “fail[ed] to train employees in a
manner that amounts to ‘deliberate indifference’ to a constitutional right, such that
‘the need for more or different training is so obvious, and the inadequacy so likely
to result in the violation of constitutional rights, that the policymakers of the city
can reasonably be said to have been deliberately indifferent to the need.’”
Rodriguez v. County of Los Angeles, 891 F.3d 776, 802 (9th Cir. 2018) (quoting
City of Canton v. Harris, 489 U.S. 378, 390 (1989)). “Deliberate indifference”
exists if a plaintiff can show that the municipality disregarded the known or
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obvious consequence that a particular omission in their training program causes
their employees to violate citizens’ constitutional rights. Connick v. Thompson,
563 U.S. 51, 61 (2011). “A pattern of similar constitutional violations by untrained
employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for
purposes of failure to train.” Id. at 62 (citation omitted).
Plaintiffs do not cite a pattern of similar constitutional violations, nor do
they otherwise raise a genuine dispute that the county defendants were deliberately
indifferent to the need for additional training. Plaintiffs point to several individuals
who have, for a variety of reasons, died in police custody dating back to 2000, but
only two of those incidents are factually close to the constitutional violation
alleged here—an officer’s use of excessive force on an individual who was prone
and subdued.1 Two incidents are insufficient for a reasonable jury to find that there
was a “pattern” of similar constitutional violations. See Connick, 563 U.S. at 60-
63.
1
One of these incidents was the subject of K.J.P. v. County of San
Diego, No. 3:15-cv-02692 (S.D. Cal.). Plaintiffs request that we take judicial
notice of the March 16, 2022 judgment in favor of the plaintiffs in K.J.P.,
reasoning that the jury’s finding that the County failed to train the officers is a
“preclusive finding[] on issues directly relevant to [plaintiffs’] § 1983 failure to
train claim against the County of San Diego.” Dkt. No. 53 at 1. We disagree and
deny the motion. The jury’s finding in K.J.P., an unrelated case, does not satisfy
the standard in Fed. R. Evid. 201(b).
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AFFIRMED.
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