Anthony Perez v. City of Fresno

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY PEREZ; CECILIA No. 22-15546

PEREZ; TERRALEE PEREZ,

individually and as successor in D.C. No.

interest to Joseph Perez; JOSEPH 1:18-cv-00127-

PEREZ, Jr., individually and as AWI-EPG

successor in interest to Joseph Perez;

MICHELLE PEREZ, individually and

as successor in interest to Joseph OPINION

Perez,

Plaintiffs-Appellants,

v.

CITY OF FRESNO; COUNTY OF

FRESNO; JAMES ROSSETTI; SEAN

CALVERT; CHRIS MARTINEZ;

BRAITHAN STOLTENBERG;

ROBERT MCEWEN; KARLSON

MANASAN; JIMMY ROBNETT;

AMERICAN AMBULANCE;

MORGAN ANDERSON,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

2 PEREZ V. CITY OF FRESNO

Argued and Submitted September 11, 2023

San Francisco, California

Filed April 15, 2024

Before: Danny J. Boggs, * Sidney R. Thomas, and Danielle

J. Forrest, Circuit Judges.

Opinion by Judge Forrest;

Partial Concurrence and Partial Dissent by Judge S.R.

Thomas

SUMMARY **

Civil Rights/Deadly Force/Qualified Immunity

The panel affirmed the district court’s summary

judgment for the City and County of Fresno, individual law-

enforcement officers, and a paramedic in an action brought

by the family of Joseph Perez, who asphyxiated and died

after the officers, at the direction of the paramedic, used their

body weight to restrain Perez while he was prone in order to

strap him to a backboard for hospital transport.

The panel held that the law-enforcement officers were

entitled to qualified immunity. At the time of Perez’s death

in 2017, the law did not clearly establish, nor was it

*

The Honorable Danny J. Boggs, United States Circuit Judge for the U.S.

Court of Appeals for the Sixth 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.

PEREZ V. CITY OF FRESNO 3

otherwise obvious, that the officers’ actions—pressing on a

backboard on top of a prone individual being restrained for

medical transport, at the direction of a paramedic working to

provide medical care—would be unconstitutional.

The panel next held that the paramedic involved was

entitled to qualified immunity because the law did not

clearly establish at the time that a paramedic acting in a

medical capacity to restrain a person in order to secure the

person for medical transport could be held liable for a

constitutional violation under either the Fourth or Fourteenth

Amendment.

Finally, the panel held that the district court properly

dismissed plaintiffs’ Monell claims because plaintiffs

presented insufficient evidence that the City and the County

were deliberately indifferent to their duty to properly train

their law-enforcement officers.

Concurring in part and dissenting in part, Judge S.R.

Thomas concurred in the majority’s analysis of the

paramedic liability and failure-to-train claims. However, he

disagreed with the conclusion that the law governing the

conduct of the individual law-enforcement defendants was

not clearly established in 2017. Extensive federal case law,

departmental guidance, and common sense gave the officers

fair warning that applying continuous force to the back of a

prone person who claims he cannot breathe is

constitutionally excessive.

4 PEREZ V. CITY OF FRESNO

COUNSEL

Thomas C. Seabaugh (argued), The Law Office of Thomas

C. Seabaugh, Los Angeles, California; John C. Taylor and

Neil K. Gehlawat, Taylor & Ring LLP, Manhattan Beach,

California; David M. Shapiro, Roderick and Solange

MacArthur Justice Center, Northwestern Pritzker School of

Law, Chicago, Illinois; Easha Anand, Roderick & Solange

MacArthur Justice Center, San Francisco, California; for

Plaintiffs-Appellants.

James D. Weakley (argued) and Brande L. Gustafson,

Weakley & Arendt PC, Fresno, California; for Defendants-

Appellees County of Fresno, Robert McEwen, Karlson

Mansan, Jimmy Robnett, and Braithan Stoltenberg.

Steven J. Renick (argued), Mildred K. O' Linn, Scott W.

Davenport, and Lynn Carpenter; Manning & Kass Ellrod

Ramirez Trester LLP, Los Angeles, California; for

Defendants-Appellees City of Fresno, Officer James

Rossetti, Officer Sean Calvert, and Officer Chris Martinez.

Justin R. Sarno (argued), DLA Piper US LLP, Los Angeles,

California; Madeline A. Cordray, DLA Piper US LLP,

Phoenix., Arizona; Richard J. Ryan, R.J. Ryan Law APC,

Glendale, California; Aaron J. Weissman, Tyson & Mendes

LLP, Los Angeles, California; for Defendants-Appellees

American Ambulance and Morgan Anderson.

PEREZ V. CITY OF FRESNO 5

OPINION

FORREST, Circuit Judge:

In 2017, at the direction of a paramedic, law-

enforcement officers used their body weight to hold down

and restrain Joseph Perez while he was prone in order to

strap him to a backboard so he could be transported to a

hospital for mental-health treatment. Perez asphyxiated and

died. Plaintiffs—Perez’s surviving family members—appeal

the district court’s grant of summary judgment on various 42

U.S.C. § 1983 claims in favor of the City of Fresno (the

City), which oversees the Fresno Police Department (FPD);

the County of Fresno (the County), which oversees the

Fresno County Sheriff’s Office (FCSO); a number of FPD

and FCSO law-enforcement officers (collectively, the

officers); and an American Ambulance paramedic. Plaintiffs

contend that the officers and paramedic are not entitled to

qualified immunity and that the City and the County are

liable for failing to properly train their law-enforcement

officers.

We affirm the district court. At the time of Perez’s death,

the law did not clearly establish, nor was it otherwise

obvious, that the officers’ actions, directed by medical

personnel, would violate Perez’s constitutional rights.

Likewise, the paramedic involved was acting in a medical

capacity during the incident, and the law did not clearly

establish that medical personnel are liable for constitutional

torts for actions taken to provide medical care or medical

transport. Thus, the officers and the paramedic are entitled

to qualified immunity. We also conclude that Plaintiffs

produced insufficient evidence to support their municipal-

6 PEREZ V. CITY OF FRESNO

liability claim against the City and the County based on a

failure-to-train theory.

I. BACKGROUND

In May 2017, FCSO received a call for assistance

regarding a man—later identified as Perez—who was acting

erratically, sprinting through the street, screaming, and

hiding in bushes. Before FCSO could respond to the call,

three FPD officers encountered Perez without being

dispatched. The FPD officers observed Perez standing in the

roadway, waving his arms, and yelling what sounded like

“help” in their direction. When the officers approached

Perez, he was talking to himself, stating that people were

chasing and hitting him. Based on Perez’s behavior, the

officers believed that he was under the influence of a

controlled substance. According to the officers, to prevent

Perez from darting into traffic on the four-lane roadway or

charging at the officers near the roadway, they seated Perez

on the curb and placed him in handcuffs. When the

dispatched FCSO deputies arrived, they found Perez seated,

handcuffed, and surrounded by the FPD officers.

Five minutes after encountering Perez, one of the FPD

officers called emergency medical services (EMS) to

facilitate an involuntary psychiatric detention under

California Welf. & Inst. Code § 5150. Initially, the officer

requested a “code two” because he believed that Perez was

a danger to himself and others. A minute and a half later, the

officer elevated the request to a “code three.” The ambulance

took approximately 14 minutes to arrive on scene because it

was originally sent to the wrong location.

While awaiting the ambulance, Perez stood up from the

curb and refused to comply with the officers’ instructions to

sit back down. In response, several of the officers took Perez

PEREZ V. CITY OF FRESNO 7

to the ground to prevent him from running into traffic. While

on the ground, one officer struck Perez’s left side three times

with his knee and then applied a wrist lock. At the same time,

another officer reported that Perez was being combative.

Two additional FCSO deputies responded to the scene and

waited in their patrol vehicle on standby. While the officers

on the ground attempted to restrain Perez, his face repeatedly

hit the ground, causing him to bleed. One officer placed a

towel underneath Perez’s chin and face and lifted Perez’s

head off the ground while holding one end of the towel in

each hand. Another officer asked Perez if he could breathe,

and Perez responded that he could. According to the officers,

at this point, Perez was lying on his stomach, but he

continued to kick his legs. The officers applied a RIPP

restraint to Perez’s ankles and looped it around his handcuffs

to control his leg movement. The officers unlooped the

restraint from Perez’s handcuffs when EMS arrived—

approximately thirty seconds to a minute after they applied

this restraint.

When EMS arrived, the paramedics retrieved a

backboard. Paramedic Morgan Anderson stated that they

were going to attach Perez to the board while he was prone

so that he could be medically transported. The officers

removed the towel holding Perez’s head and assisted the

paramedics in applying the backboard. As this was

happening, Perez yelled that he could not breathe. Anderson

nevertheless told one of the officers to sit on the backboard.

The officer complied and sat on the board for one minute and

thirteen seconds while other officers applied pressure and

worked with Anderson to secure the backboard. After the

seated officer stood up, the paramedics continued securing

Perez to the backboard for another two minutes before

turning him over. Once Perez was placed on his back, the

8 PEREZ V. CITY OF FRESNO

paramedics discovered that he did not have a pulse. 1 The

paramedics then transported Perez to the hospital, where he

was pronounced dead. The coroner attributed Perez’s death

to compression asphyxia during restraint with

methamphetamine toxicity as another significant

contributor. 2 The coroner classified Perez’s death as a

homicide.

Perez’s family members sued the officers and Anderson

under 42 U.S.C. § 1983 for violations of the Fourth and

Fourteenth Amendments and the City and County for

municipal liability under Monell v. Department of Social

Services of the City of New York, 436 U.S. 658, 690 (1978),

based on a failure-to-train theory. Plaintiffs also asserted

various state law claims. Defendants moved for summary

judgment asserting qualified immunity, which the district

court granted. While the district court determined that a

reasonable jury could find that the officers violated the

Fourth and Fourteenth Amendment by applying pressure to

1

Plaintiffs argue that the paramedics failed to check Perez’s pulse and

perform CPR once they turned him over. They point to the testimony of

two officers who stated that they did not see the paramedics perform

these tasks. Other officers, however, stated the opposite, and the

paramedics testified that they performed lifesaving measures. The

bodycam footage appears to show the paramedics checking Perez’s pulse

on his neck after he was turned over. Regardless of any dispute in the

record regarding the paramedics’ actions after Perez was turned over, it

is immaterial to the claims on appeal that concern the use of force against

Perez before he was turned over. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the

entry of summary judgment.”).

2

According to the coroner, the average lethal dose of methamphetamine

is 200 nanograms per milliliter. Perez had ten times that amount in his

bloodstream.

PEREZ V. CITY OF FRESNO 9

the backboard while Perez was prone, 3 it nonetheless

concluded that the officers were entitled to qualified

immunity because at the time of the incident the law did not

clearly establish, nor was it obvious, that the officers’ actions

were unconstitutional. The district court likewise granted

Anderson qualified immunity because existing law did not

clearly establish, nor was it obvious, that Anderson’s

conduct in providing medical care was unconstitutional.

Finally, the district court determined that Plaintiffs presented

insufficient evidence that either the City or the County were

deliberately indifferent to their duty to train their officers on

restraint asphyxia. Having dismissed all of Plaintiffs’ federal

claims, the district court declined to exercise supplemental

jurisdiction over their remaining state-law claims. Plaintiffs

timely appealed.

II. DISCUSSION

Plaintiffs present three issues on appeal: (1) whether the

law-enforcement officers are entitled to qualified immunity;

(2) whether the paramedic is entitled to qualified immunity;

and (3) whether Plaintiffs presented sufficient evidence to

support their Monell claim against the City and the County

based on a failure-to-train theory. We review a district

court’s grant of summary judgment and decision on qualified

immunity de novo. C.V. v. City of Anaheim, 823 F.3d 1252,

3

The district court concluded that the officers’ other uses of force,

including taking Perez to the ground, administering knee strikes,

applying a wrist lock, using the towel, and utilizing the RIPP restraint,

were not excessive. Plaintiffs do not challenge the district court’s

findings on appeal. While Plaintiffs’ opening brief mentions the towel

and uses the term “hog-tie,” to refer to the RIPP restraint that was

eventually removed when EMS arrived, Plaintiffs present no meaningful

argument that the district court erred in finding that neither use of force

was independently excessive.

10 PEREZ V. CITY OF FRESNO

1255 (9th Cir. 2016). “[V]iew[ing] the evidence in the light

most favorable to the nonmoving party,” we must

“determine whether there are any genuine issues of material

fact, and decide whether the district court correctly applied

the relevant substantive law.” Johnson v. Barr, 79 F.4th 996,

1003 (9th Cir. 2023) (quoting Animal Legal Def. Fund v.

U.S. Food & Drug Admin., 836 F.3d 987, 989 (9th Cir.

2016)). We address each issue in turn.

A. Law-Enforcement Officers

We begin by considering Plaintiffs’ arguments that the

district court erred in granting the law-enforcement officers

qualified immunity. The doctrine of qualified immunity

shields police officers from § 1983 liability unless (1) the

officers “violated a federal statutory or constitutional right,

and (2) the unlawfulness of their conduct was ‘clearly

established at the time’” of the violation. District of

Columbia v. Wesby, 583 U.S. 48, 62–63 (2018) (quoting

Reichle v. Howards, 566 U.S. 658, 664 (2012)). A right is

clearly established when it is “sufficiently clear that every

reasonable official would have understood that what he is

doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11

(2015) (per curiam) (quoting Reichle, 566 U.S. at 664).

Although there need not be a case directly on point, “existing

precedent must have placed the statutory or constitutional

question beyond debate.” Id. at 12 (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011)). It is insufficient for a legal

principle to merely be “suggested by then-existing

precedent.” Wesby, 583 U.S. at 63. “The precedent must be

clear enough that every reasonable official would interpret it

to establish the particular rule the plaintiff seeks to apply.”

Id. Courts must be careful not to “define clearly established

law at a high level of generality.” Id. (quoting Plumhoff v.

Rickard, 572 U.S. 765, 779 (2014)). Specificity of the rule is

PEREZ V. CITY OF FRESNO 11

critical, particularly “in the Fourth Amendment context,

where . . . ‘[i]t is sometimes difficult for an officer to

determine how the relevant legal doctrine . . . will apply to

the factual situation the officer confronts.’” Luna, 577 U.S.

at 12 (alteration in original) (quoting Saucier v. Katz, 533

U.S. 194, 205 (2001)). Qualified immunity is a “demanding

standard” because it “protects ‘all but the plainly

incompetent or those who knowingly violate the law.’”

Wesby, 583 U.S. at 63 (quoting Malley v. Briggs, 475 U.S.

335, 341 (1986)).

The officers do not dispute the district court’s conclusion

that a reasonable jury could find that they violated the Fourth

and Fourteenth Amendments by applying pressure to the

backboard while Perez was in a prone position and thereafter

ignoring his statement that he could not breathe. Therefore,

qualified immunity hinges on whether the unlawfulness of

these actions, taken at the direction of medical personnel,

was clearly established when Perez died. 4

4

The district court determined that the pressure that the officers applied

before the paramedics arrived was “a low quantum of force” and that

“the tipping point in the encounter [between the officers and Perez]

occurred when the backboard was placed on Perez’s back.” As a result,

the district court “focuse[d] mostly on [the] placement of the backboard”

in its summary judgment order. On appeal, Plaintiffs do not challenge

the district court’s non-lethal force analysis of the actions taken before

the backboard was introduced. Instead, Plaintiffs’ arguments are focused

only on the pressure applied to Perez related to securing the backboard

after the paramedics arrived, which they repeatedly contend caused

Perez’s death. As just one example of many, in their Opening Brief on

appeal they contend: “[I]t is simply obvious that it violates the

Constitution for officers and deputies to compress Perez under a board,

disregard his statement that he could not breathe, and apply downward

pressure to the board until he asphyxiated and died.” As a result, the

12 PEREZ V. CITY OF FRESNO

Plaintiffs contend that the officers are not entitled to

qualified immunity for three reasons: (1) the officers’

actions were obviously unconstitutional; (2) our decision in

Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d

1052 (9th Cir. 2003), clearly established that the officers’

actions violated the Constitution; and (3) the officers

departed from their training. We first consider Plaintiffs’

assertion that Drummond clearly established the

unconstitutionality of the officers’ actions before addressing

Plaintiffs’ obviousness and departure-from-training

arguments.

i.

In Drummond, Drummond’s neighbor called the police

because he was afraid that Drummond, who had a history of

mental illness, was going to injure himself by running

through traffic. Id. at 1054. Three officers responded and

found Drummond in a convenience store parking lot,

unarmed, “hallucinating[,] and in an agitated state.” Id. The

officers called for an ambulance to transport Drummond to

the hospital for an involuntary psychiatric hold. Id. While the

ambulance was in route, the officers took Drummond to the

ground, handcuffed him in a prone position, and despite his

lack of resistance, two officers placed the weight of their

bodies on his back and neck. Id. Drummond “repeatedly told

the officers that he could not breathe,” yet the officers

continued to apply their weight to his back and neck. Id. at

1054–55. Several minutes later, the officers bound

dissent’s contention that we are improperly resolving factual disputes in

favor of the officers or improperly assuming that the paramedic’s

instruction that the officers sit on the backboard was the cause of Perez’s

death is incorrect. We are analyzing Plaintiffs’ case as they presented it.

See Greenlaw v. United States, 554 U.S. 237, 243–44 (2008).

PEREZ V. CITY OF FRESNO 13

Drummond’s ankles, and shortly thereafter, he went limp

and stopped breathing. Id. at 1055. Although Drummond

was eventually revived, he sustained significant brain

damage and fell into a permanent coma. Id. Through his

guardian ad litem, Drummond sued the officers under

§ 1983. Id. The district court granted the officers qualified

immunity. Id. Specifically, the district court concluded that

the officers did not violate the Constitution and even if they

did, there was no clearly established law putting them on

notice that their conduct was unconstitutional. Id.

We reversed. Id. at 1054. We first determined that the

officers’ use of force was excessive. Id. at 1059–60. Then,

we held that the law, as it existed, clearly established that the

force used by the officers under the circumstances was

unlawful. Id. at 1060. We explained that the officers

asphyxiated Drummond by applying their weight to his back

and neck despite him being restrained, nonresistant, and

repeatedly pleading for air. Id. at 1061. Although there was

no Ninth Circuit precedent involving the same facts, we

determined that “[a]ny reasonable officer should have

known that such conduct constituted . . . excessive force.”

Id. We bolstered our conclusion by pointing to recent local

newspaper stories and federal cases describing the dangers

of compression asphyxia and the officers’ own training

materials. Id. at 1061–62.

While many of the facts in Drummond are disturbingly

similar to this case, we nonetheless conclude that Drummond

did not clearly establish the unconstitutionality of the

officers’ conduct here because this case presents material

factual differences. Cf. Rivas-Villegas v. Cortesluna, 595

U.S. 1, 5–8 (2021) (per curiam) (reversing our denial of

qualified immunity to an officer because we relied on a

materially distinguishable case despite that case also

14 PEREZ V. CITY OF FRESNO

involving a nonresistant, prone suspect, who was pinned to

the ground by an officer’s knee). The injurious restraint of

Drummond occurred before paramedics arrived, meaning

the officers were not acting under the direction of medical

personnel. Id. at 1054–55. But here, as just discussed, the

only use of force that Plaintiffs challenge is the restraint that

occurred after the paramedics responded to the scene,

determined that Perez needed to be placed on a backboard to

facilitate his transport to the hospital, and Anderson

instructed the officers to assist in securing Perez to the

backboard by sitting on top of him while he was in a prone

position.

At first glance, this distinction may seem hollow given

the general principle that subordinate officers cannot simply

defer to unlawful orders by their superiors. See, e.g., Baude

v. Leyshock, 23 F.4th 1065, 1074 (8th Cir. 2022); Kennedy

v. City of Cincinnati, 595 F.3d 327, 337 (6th Cir. 2010). But

that is not what happened. The officers did not follow the

paramedic’s direction because he was their superior. The

officers followed the paramedic’s direction because he was

called to the scene to provide medical care and transport.

Indeed, all the officers involved testified that they defer to

medical personnel that respond to the scene of an emergency

on medically-related matters. Nothing in Drummond clearly

establishes that the officers were required to second guess

the paramedics in their effort to provide medical care.

Given the specific context of this case, we cannot

conclude that Drummond put the officers on fair notice that

their actions—pressing on a backboard on top of a prone

individual being restrained for medical transport, at the

direction of a paramedic working to provide medical care—

was unlawful. See Luna, 577 U.S. at 12 (clearly-established

prong examines “whether the violative nature of particular

PEREZ V. CITY OF FRESNO 15

conduct is clearly established” (quoting al-Kidd, 563 U.S. at

742)); Sharp v. County of Orange, 871 F.3d 901, 911 (9th

Cir. 2017) (prior cases must “articulate[] a constitutional rule

specific enough to alert these deputies in this case that their

particular conduct was unlawful”).

ii.

Alternatively, Plaintiffs argue that, regardless of whether

a specific constitutional violation was clearly established,

the officers are not entitled to qualified immunity because

their conduct was obviously unconstitutional. They contend

that it was obvious that the officers could not lawfully

“compress Perez under a board, disregard his statement that

he could not breathe, and apply downward pressure to the

board until he asphyxiated and died.”

In the absence of analogous case law, a plaintiff can

nevertheless surmount the clearly-established-law

requirement by demonstrating instead that the constitutional

violation was obvious. See O’Doan v. Sanford, 991 F.3d

1027, 1044 (9th Cir. 2021). An “obvious case” is one where

the officers’ conduct was clearly unlawful. Wesby, 583 U.S.

at 64. As we have recognized, such cases are extraordinarily

“rare” and “especially problematic in the Fourth-

Amendment context.” O’Doan, 991 F.3d at 1044 (citations

omitted).

The same facts that distinguish this case from

Drummond also demonstrate that the officers’ conduct was

not obviously unconstitutional. A paramedic concluded that

Perez needed to be restrained so that he could be transported

to a hospital and directed the officers involved to help attach

Perez to a backboard while he was laying prone, including

by sitting on the backboard. Under the circumstances, it was

not obvious that applying the backboard in this manner—as

16 PEREZ V. CITY OF FRESNO

directed by a medical professional trained to respond in

emergency situations—would violate the Constitution. See

id. Thus, we disagree that the obviousness “exception to the

specific-case requirement” applies here. Sharp, 871 F.3d at

912.

iii.

Finally, Plaintiffs contend that the officers are not

entitled to qualified immunity because they departed from

their training. Plaintiffs rely on the Supreme Court’s recent

decision in Lombardo v. City of St. Louis, 594 U.S. 464

(2021) (per curiam). 5 In Lombardo, police officers arrested

Nicholas Gilbert and put him in a holding cell. Id. at 465. An

officer observed Gilbert attempting to hang himself. Id. In

response, several officers entered the cell, and a struggle

ensued. Id. The officers restrained Gilbert in a prone position

and placed pressure on his limbs, back, and torso. Id. at 465–

66. Gilbert pleaded for the officers to stop. Id. at 466. After

struggling in that position for fifteen minutes, Gilbert

stopped breathing and died. Id.

Gilbert’s parents sued, and the district court granted

summary judgment to the officers “because they did not

violate a constitutional right that was clearly established at

the time of the incident.” Id. “The Eighth Circuit affirmed on

different grounds, holding that the officers did not apply

unconstitutionally excessive force.” Id. The Supreme Court

concluded that the Eighth Circuit was “unclear [as to]

5

Plaintiffs also cite Cal. Gov’t Code § 7286.5, which prohibits law-

enforcement agencies from “authoriz[ing] techniques or transport

methods that involve a substantial risk of positional asphyxia.” This

section, however, was not enacted until September 2021—four years

after the events of this lawsuit. See Assemb. B. 490, 2021–2022 Leg.,

Reg. Sess. (Cal. 2021).

PEREZ V. CITY OF FRESNO 17

whether [it] thought the use of a prone restraint . . . is per se

constitutional so long as an individual appears to resist

officers’ efforts to subdue him.” Id. at 467. Because the

Eighth Circuit failed to consider evidence such as officer

training and police guidance regarding prone restraint, and

instead may have applied a per se rule, the Supreme Court

vacated and remanded for further inquiry into the facts and

circumstances of the case. Id. at 467–68.

Plaintiffs argue that, as in Lombardo, the evidence here

demonstrates that “there is well-known police guidance” that

advises officers to remove individuals from their stomachs

once they are handcuffed and because the officers did not

follow this guidance, qualified immunity was inappropriate.

Contrary to Plaintiffs’ argument, Lombardo does not

establish that any violation of police policy or guidance is,

in and of itself, sufficient to deny qualified immunity.

Indeed, the Lombardo Court “express[ed] no view as to

whether the officers used unconstitutionally excessive force

or, if they did, whether Gilbert’s right to be free of such force

in these circumstances was clearly established at the time.”

Id. at 468. The Court took issue only with the Eighth

Circuit’s failure to consider evidence of police training and

guidance on prone restraint when assessing the

reasonableness of the officers’ actions. Id. at 467–68. As we

have explained, official training and guidance can influence

the qualified-immunity analysis, but they are not

determinative. Vazquez v. County of Kern, 949 F.3d 1153,

1164–65 (9th Cir. 2020). “Even if an officer acts contrary to

[his] training . . . , that does not itself negate qualified

immunity where it would otherwise be warranted.” City &

County of San Francisco v. Sheehan, 575 U.S. 600, 616

(2015).

18 PEREZ V. CITY OF FRESNO

While Plaintiffs present evidence that both FPD and

FCSO train their officers not to leave an individual laying on

his stomach once secured, Plaintiffs do not point to any

policy prohibiting such restraint to facilitate medical

treatment. In fact, four of the seven officers involved in the

incident testified that they are trained to defer to paramedics

on issues of treatment and transport when they assist in an

emergency. 6 Thus, Plaintiffs have not presented evidence

that the officers departed from their training under these

specific circumstances. More important, however, for the

reasons previously explained, the officers are entitled to

qualified immunity because the law did not clearly establish,

nor did the context of this case make it obvious, that applying

pressure to the backboard at Anderson’s direction was

unlawful. Even if the officers contravened their training, that

does not defeat qualified immunity in this case. See id.

B. The Paramedic

We next address whether Anderson is entitled to

qualified immunity for his role in Perez’s death. Because we

conclude that the law did not clearly establish at the time of

the events at issue that a paramedic restraining a person in

order to secure the person for medical transport could be held

liable for a constitutional violation under either the Fourth or

Fourteenth Amendment, we conclude that Anderson is

entitled to qualified immunity. See Wesby, 583 U.S. at 63–

64 (clearly established question must be specific to the

context of the case). We do not address the separate question

6

The other three officers also testified that they defer to paramedics’

judgment but that they do so based on personal experience or because

the situation is medical.

PEREZ V. CITY OF FRESNO 19

of whether Anderson’s actions constituted a constitutional

violation.

As the district court noted, there are few cases applying

Fourth and Fourteenth Amendment standards to paramedics

responding to medical emergencies. And we have not found,

nor have Plaintiffs cited, any Supreme Court or Ninth Circuit

precedent establishing constitutional liability under similar

circumstances. However, some of our sister circuits have

addressed this context. For example, the Sixth Circuit has

held that whether a paramedic is “entitled to qualified

immunity depends on whether [he] acted in a law-

enforcement capacity or in an emergency-medical-response

capacity when engaging in the [complained-of] conduct.”

McKenna v. Edgell, 617 F.3d 432, 439–40 (6th Cir. 2010);

Peete v. Metro. Gov’t of Nashville & Davidson County, 486

F.3d 217, 221 (6th Cir. 2007). That court reasoned that if the

paramedic was acting in a law-enforcement capacity when

he engaged in the challenged conduct, then the plaintiff’s

claim is properly raised under § 1983, but if the paramedic

was acting in a medical capacity, then the plaintiff’s claim

properly sounds in medical malpractice. See McKenna, 617

F.3d at 440.

In Peete, the Sixth Circuit reversed the denial of

qualified immunity for paramedics who restrained and

applied pressure to an unconscious patient in a prone

position, thereby causing the patient’s death. 486 F.3d at

220. That court determined that “there is no federal case

authority creating a constitutional liability for the

negligence, deliberate indifference, and incompetence” of

paramedics where their “purpose is to render solicited aid in

an emergency rather than to enforce the law, punish, deter,

or incarcerate.” Id. at 221. The Sixth Circuit likewise

explained in McKenna that if there is any constitutional

20 PEREZ V. CITY OF FRESNO

“right to be free from . . . unintentional conduct by medical-

emergency responders . . . , it is not clearly established.” 617

F.3d at 440.

Similarly, the Seventh Circuit granted qualified

immunity to a paramedic who sedated an injured arrestee

before taking the arrestee to the hospital because it was not

clearly established that such conduct violates the Fourth

Amendment. Thompson v. Cope, 900 F.3d 414, 422–24 (7th

Cir. 2018). In Thompson, a paramedic was dispatched to the

scene of an animal bite, but when he arrived, he discovered

that the bite came from a human—Dusty Heishman. Id. at

418. An officer asked the paramedic to examine Heishman

before treating the bite patient. Id. The paramedic suspected

that Heishman was under the influence of drugs and injected

him with a sedative before placing him in an ambulance. Id.

Once in the ambulance, the paramedic determined that

Heishman was not breathing and had no pulse, and despite

the paramedic restoring Heishman’s heartbeat, he died eight

days later. Id. The district court granted the paramedic

qualified immunity against Heishman’s estate’s deliberate-

indifference claim but denied qualified immunity on the

excessive-force claim. Id. at 419. The Seventh Circuit

reversed because the “[c]ase law did not (and does not)

clearly establish that a paramedic can violate a patient-

arrestee’s Fourth Amendment rights by exercising medical

judgment to administer a sedative in a medical emergency.”

Id. at 417. The fact that the paramedic was “confronting a

patient suffering from a life-threatening emergency” took

the “case out of the realm of clearly established Fourth

Amendment law.” Id. at 424. But the court noted that the

question would be more difficult if the paramedic sedated

someone at the direction of law enforcement when there was

no medical purpose for sedation. Id. at 424 n.2.

PEREZ V. CITY OF FRESNO 21

More recently, the Eighth Circuit confronted similar

claims in Buckley v. Hennepin County, 9 F.4th 757 (8th Cir.

2021). There, paramedics responded to an emergency call

from police concerning a woman who had been drinking and

was threatening self-harm. Id. at 759. The paramedics

determined that the woman needed to be transported to the

hospital, but she refused. Id. Despite her objections, the

officers and paramedics restrained her and carried her to the

ambulance, where the paramedics administered a sedative.

Id. The woman immediately developed respiratory distress

and was intubated. Id. at 759–60. The district court

dismissed the woman’s claims against the paramedics, and

the Eighth Circuit affirmed. Id. at 760, 765. The court

determined that when the paramedics injected the woman,

they were acting in a medical capacity. Id. at 761. The court

then concluded that the paramedics’ actions were not

unreasonable given the woman’s “intoxicated, suicidal,

[and] semi-conscious” state. Id. at 762. Further, the court

explained that the paramedics’ attempt to transport the

woman in need of medical care to a hospital demonstrated

concern, not indifference, for her well-being. Id. at 764. The

fact that the paramedics sedated the woman to protect her, as

well as themselves, from harm did not change the court’s

analysis. Id.

Here, Plaintiffs agree that “paramedics who act with a

medical purpose backed up by plausible medical judgment”

are entitled to qualified immunity, even if they make a

mistake. But they argue that Anderson “went beyond

providing ‘medical care’” by assisting and directing law

enforcement in restraining Perez. Indeed, Plaintiffs contend

22 PEREZ V. CITY OF FRESNO

that Anderson’s actions do not constitute medical care at all

because he caused Perez’s death. 7 We disagree.

Plaintiffs did not present evidence from which a

reasonable jury could find that Anderson was acting in a law-

enforcement capacity during his interaction with Perez. See

McKenna, 617 F.3d at 441–43 (state actor’s role is generally

a question for the jury but courts may answer the question

“as a matter of law when a reasonable jury could come to but

one conclusion”); cf. Johnson, 79 F.4th at 1003 (existence of

probable cause is generally a jury question but courts may

decide the issue “if ‘no reasonable jury could find an absence

of probable cause under the facts’” (quoting Gasho v. United

States, 39 F.3d 1420, 1428 (9th Cir. 1994))). The paramedics

arrived on the scene in response to a medical-emergency call

reporting an individual who was a danger to himself and

others. Their actions throughout the incident were taken for

the purpose of transporting Perez to the hospital for medical

treatment. Anderson determined that before Perez could be

transported in the ambulance, he needed to be secured to a

backboard. And Anderson directed the officers to assist in

restraining Perez while he was lying on the ground so that he

7

Plaintiffs also argue that because Anderson conceded at summary

judgment that he was acting under color of law, the district court should

have treated him like a law-enforcement officer and denied qualified

immunity. Plaintiffs are mistaken. Whether an individual acts under

color of state law is a different inquiry than whether an individual is

entitled to qualified immunity. The color-of-law question simply asks

whether a defendant “exercised power possessed by virtue of state

law”—a prerequisite “[t]o state a claim under § 1983.” West v. Atkins,

487 U.S. 42, 48–49 (1988) (internal quotation marks omitted) (quoting

United States v. Classic, 313 U.S. 299, 326 (1941)). The qualified-

immunity question, on the other hand, asks whether an individual who

acted under color of state law to deprive another of his federal rights is

nevertheless immune from suit. See O’Doan, 991 F.3d at 1035–36.

PEREZ V. CITY OF FRESNO 23

could be attached to the backboard. In the over 15-minute

video of the incident, there is no indication from Anderson,

or any of the officers, that Perez was ever restrained so that

he could be arrested or punished. Rather, the comments of

all involved during the incident were focused on Perez’s

agitated state and trying calm him down so that he could be

transported for treatment. After the backboard was secured,

Anderson and the other paramedics turned Perez over in

preparation for placing him on the gurney and determined

that he did not have a pulse. While the impact of these

actions is heart-rending, and Anderson’s conduct may have

fallen well short of any reasonable standard of care, the

record establishes that he was trying to render medical aid to

Perez. 8 Cf. Peete, 486 F.3d at 222 (concluding that

paramedics who asphyxiated their unconscious patient

“were attempting to help him, although they badly botched

the job”).

Because we conclude that Anderson was acting in a

medical capacity during the tragic event at issue in this case,

we also conclude that he is entitled to qualified immunity.

There is no precedent imposing constitutional tort liability

on a paramedic who attempts to render emergency medical

aid to a patient by restraining him in preparation for a

medical transport. The district court therefore did not err in

granting summary judgment in favor of Anderson.

8

Plaintiffs contend that “Anderson’s initial denial, under oath, that he

gave the instruction” to sit on the backboard undermines any conclusion

that he was attempting to provide medical aid to Perez. We are

unpersuaded by this argument. Our focus in determining Anderson’s role

is on the events that occurred on May 10, 2017. See McKenna, 617 F.3d

at 441. That Anderson initially claimed that he did not recall giving the

instruction and could not recognize his own voice in the video does not

undercut the evidence from the day of the event.

24 PEREZ V. CITY OF FRESNO

C. Monell Claims

Finally, we consider Plaintiffs’ Monell claims against the

City and the County based on a failure-to-train theory.

Municipalities and local governments can be sued under

§ 1983 for constitutional deprivations caused by

governmental policy or custom. Monell, 436 U.S. at 690.

Respondeat superior liability, however, does not exist under

§ 1983. Id. at 691. “In limited circumstances, a local

government’s decision not to train certain employees about

their legal duty to avoid violating citizens’ rights may rise to

the level of an official government policy for purposes of

§ 1983.” Connick v. Thompson, 563 U.S. 51, 61 (2011).

To prevail on a failure-to-train theory, a plaintiff must

demonstrate that a municipality’s failure to train “amount[s]

to ‘deliberate indifference to the rights of persons with

whom the [untrained employees] come into contact.’” Id.

(second alteration in original) (quoting City of Canton v.

Harris, 489 U.S. 378, 388 (1989)). Deliberate indifference

is a high legal standard, “requiring proof that a municipal

actor disregarded a known or obvious consequence of his

action.” Id. (quoting Bd. of County Comm’rs of Bryan

County v. Brown, 520 U.S. 397, 410 (1997)). Municipal

liability “is at its most tenuous where a claim turns on a

failure to train.” Id. Ordinarily, “[a] pattern of similar

constitutional violations,” rather than proof of a single

incident, is “necessary to demonstrate deliberate

indifference.” Id. at 62–63 (internal quotation marks

omitted) (quoting Brown, 520 U.S. at 409). Nonetheless,

single-incident liability may exist in the rare case where “the

unconstitutional consequences of failing to train” are

“patently obvious.” Id. at 63–64. Merely negligent training

is insufficient to support a Monell claim. Dougherty v. City

of Covina, 654 F.3d 892, 900 (9th Cir. 2011).

PEREZ V. CITY OF FRESNO 25

Plaintiffs contend that the following evidence creates a

triable issue on their failure-to-train claim: the facts of the

incident, testimony regarding the officers’ unfamiliarity with

the dangers of restraint asphyxia, and Plaintiffs’ expert

report describing the inadequacies in FPD’s and FCSO’s

training on the risks of prone restraint. But what is missing

is any evidence pointing to a pattern of excessive-force

incidents by untrained officers that resulted in the outcome

here—restraint asphyxia. 9 Accordingly, to establish a

question of fact regarding municipal liability, Plaintiffs

needed to show that the unconstitutional consequences of

failing to train officers on restraint asphyxia were “patently

obvious.” Thompson, 563 U.S. at 64. They did not.

As an initial matter, Plaintiffs acknowledge that FPD and

FCSO maintain policies to prevent restraint and positional

asphyxia. While two FPD officers testified that they were not

trained on prone-restraint asphyxia, a third FPD officer

testified that he was trained and was taught to monitor a

prone individual’s breathing. Likewise, a FCSO deputy

stated that it is unlikely that an individual would asphyxiate

from downward pressure while in a prone restraint but

nevertheless explained that he was trained to monitor for

signs of restraint asphyxia. The possible inadequate training

of two FPD officers about the risks of restraint asphyxia is

insufficient to support a Monell claim. See Harris, 489 U.S.

at 390–91 (“That a particular officer may be unsatisfactorily

trained will not alone suffice to fasten [municipal]

9

Because Plaintiffs do not challenge the district court’s finding that no

constitutional violation resulted from the officers’ other uses of force,

see supra note 3, Monell liability cannot flow from those acts. See

Lockett v. County of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020)

(“Monell claims . . . require a plaintiff to show an underlying

constitutional violation.”).

26 PEREZ V. CITY OF FRESNO

liability . . . , for the officer’s shortcomings may have

resulted from factors other than a faulty training program. It

may be, for example, that an otherwise sound program has

occasionally been negligently administered.” (citations

omitted)).

Additionally, to the extent Plaintiffs rely on the officers’

noncompliance with their training, their theory of liability

against the City and the County impermissibly rests on the

mere existence of an employer-employee relationship, rather

than a governmental policy or custom. See Monell, 436 U.S.

at 691–92 (explaining that a municipality is not liable merely

because an employee commits a constitutional violation).

Even “adequately trained officers occasionally make

mistakes; the fact that they do says little about the training

program or the legal basis for holding the city [or county]

liable.” Harris, 489 U.S. at 391. Because Plaintiffs presented

insufficient evidence to establish deliberate indifference, we

affirm the district court’s dismissal of Plaintiffs’ Monell

claims.

*****

Joseph Perez’s death was a tragedy. But that alone does

not dictate the outcome of this case. Because the law-

enforcement officers’ actions that Plaintiffs contend led to

Perez asphyxiating were taken at the direction of a medical

professional who was trying to provide medical care, both

the officers and the paramedic are entitled to qualified

immunity. The district court also properly granted summary

judgment against Plaintiffs’ Monell claims because

Plaintiffs presented insufficient evidence that the City and

the County were deliberately indifferent to their duty to

properly train their law-enforcement officers.

AFFIRMED.

PEREZ V. CITY OF FRESNO 27

S.R. THOMAS, Circuit Judge, concurring in part and

dissenting in part:

I concur in the majority’s analysis of the paramedic

liability and failure-to-train claims, and join in affirming the

district court’s grant of summary judgment for Anderson,

AA, FSCO, and FPD. However, I respectfully disagree with

the conclusion that the law governing the conduct of the

individual officer defendants (“Officers”) was not “clearly

established” in 2017. Extensive federal case law,

departmental guidance, and common sense gave Officers

fair warning that applying continuous force to the back of a

prone person who claims he cannot breathe is

constitutionally excessive. Any argument that Officers’

continued force was nonetheless “reasonable” under the

circumstances turns on disputed issues of material fact—not

confusion about “what the law requires.” Saucier v. Katz,

533 U.S. 194, 205 (2001). Therefore, I respectfully dissent

in part.

I

Fourteen years before Joseph Perez was killed, we held

that police officers violated the clearly established rights of

Brian Drummond when they “crushed [him] against the

ground” while he was laying on his stomach, handcuffed and

awaiting an ambulance. Drummond v. City of Anaheim, 343

F.3d 1052, 1061 (9th Cir. 2003). Like Perez, Drummond

“told the officers he could not breathe,” but they continued

to press on his back anyway. Id. at 1054.

Applying the factors for excessive force from Graham v.

Connor, 490 U.S. 386, 396 (1989), we concluded that “only

minimal force” was permitted “once Drummond was

handcuffed and lying on the ground.” Drummond, 343 F.3d

at 1058. “Balancing the severe force against the minimal

28 PEREZ V. CITY OF FRESNO

need,” id., we rejected the officers’ qualified immunity

defense:

The officers—indeed, any reasonable

person—should have known that squeezing

the breath from a compliant, prone, and

handcuffed individual despite his pleas for air

involves a degree of force that is greater than

reasonable.

Id. at 1059. While there was “no federal case directly on

point” at the time, we held that existing decisional law, local

newspaper publicity about compression asphyxia, and

departmental training all contributed to putting the officers

“on notice” that the force they used “amounted to a

constitutional violation.” Id. at 1062; see also Vasquez v.

Cnty. of Kern, 949 F.3d 1153, 1164–65 (9th Cir. 2020)

(analyzing officer training and departmental guidance as

indicia of obviousness).

Between 2003 and 2017, six of our sister circuits reached

a similar conclusion concerning use of prone compression

on a subject who has been restrained. McCue v. City of

Bangor, Maine, 838 F.3d 55, 64–65 (1st Cir. 2016); Rogoz

v. City of Hartford, 796 F.3d 236, 247–48 (2d Cir. 2015);

Weigel v. Broad, 544 F.3d 1143, 1155 (10th Cir. 2008);

Abdullahi v. City of Madison, 423 F.3d 763, 775 (7th Cir.

2005); Champion v. Outlook Nashville, Inc., 380 F.3d 893,

903 (6th Cir. 2004); Bornstad v. Honey Brook Twp., 211 F.

App’x 118, 124 (3d Cir. 2007) (mem.). During this same

period, we repeatedly held that Drummond supplied clearly

established law for cases involving prone restraint by law

enforcement, notwithstanding slight factual variations, see

Zelaya v. Las Vegas Metro. Police Dep’t, 682 F. App’x 565,

PEREZ V. CITY OF FRESNO 29

567 (9th Cir. 2017) (mem.); Abston v. City of Merced, 506

F. App’x 650, 652 (9th Cir. 2013) (mem.); Tucker v. Las

Vegas Metro. Police Dep't, 470 F. App’x 627, 629 (9th Cir.

2012) (mem.); Arce v. Blackwell, 294 F. App’x 259, 261 (9th

Cir. 2008) (mem.), as did lower courts in the Ninth Circuit.

See, e.g., Garlick v. Cnty. of Kern, 167 F. Supp. 3d 1117,

1155 (E.D. Cal. 2016); Brown v. City & Cnty. of San

Francisco, No. 11-02162, 2014 WL 1364931 at *14 (N.D.

Cal. Apr. 7, 2014); Madrid v. City of Fresno, No. 108 CV

00098, 2011 WL 13243581 at *13 (E.D. Cal. Feb. 23, 2011).

Drummond and its progeny provide law enforcement

with notice of a common-sense rule: it is unconstitutional to

place prolonged body weight force on the back of prone and

unarmed individual who cannot meaningfully resist. See

Drummond, 343 F.3d at 1059; Abston, 506 Fed. App’x at

653. The law is especially clear where, as here, the prone

individual verbally communicates that he cannot breathe.

Drummond, 343 F.3d at 1061; Arce, 294 F. App’x at 261.

II

The majority acknowledges the “disturbing[]”

similarities between this case and Drummond. In both cases,

the police encounter began on the side of a road after officers

were summoned to care for an individual acting erratically

and in need of psychiatric care. Like Drummond, Perez was

unarmed and initially posed no threat to officer safety, but

was handcuffed for his own protection from nearby traffic.

343 F.3d at 1054. Once handcuffed, both men were

subsequently tackled to the ground and held on their

stomachs before the ambulance arrived. Id. Like the

defendants in Drummond, law enforcement in Fresno

received specific guidance warning of the risks of prone

30 PEREZ V. CITY OF FRESNO

restraints and positional asphyxia, which Officers seem to

have forgotten or ignored. 343 F.3d at 1059.

Nevertheless, the majority purports to distinguish this

case based on the arrival of a paramedic on the scene,

approximately ten minutes into the prone restraint. This is a

hollow distinction that turns improperly on unresolved

questions of fact. To hold otherwise disregards “the

Supreme Court’s admonition that ‘officials can still be on

notice that their conduct violates established law even in

novel factual circumstances.’” Torres v. City of Madera,

648 F.3d 1119, 1129 (9th Cir. 2001) (quoting Hope v. Pelzer,

536 U.S. 730, 741 (2002)).

The majority’s comparison to Drummond reflects

Officers’ version of events, in which the asphyxiation

occurred as a result of reasonable but misguided deference

to the direction of medical personnel. This view

impermissibly resolves several factual questions in favor of

Officers, rather than Perez. Saucier, 553 U.S. at 201. First,

the majority assumes that it was the paramedic’s instruction

that caused Officers to employ unconstitutional force. This

issue is contestable, especially since the instruction occurred

some fifteen minutes after Officers began pressing on

Perez’s back, under conditions nearly identical to those in

Drummond. The degree to which that initial pressure

contributed to Perez’s death is disputed. 1 As is the degree to

1

While the district court’s analysis focused “mostly” on the quantum of

pressure applied after the placement of the backboard, the court also

recognized that the “struggles and pressure leading up to the placement

of the backboard” may have played a contributing role. In crediting the

coroner’s finding that the cause of death was “compression asphyxia

during restraint,” the court never indicated that only the period after the

PEREZ V. CITY OF FRESNO 31

which the paramedic began directing the scene and Officers

“did defer” after the ambulance arrived.

Second, the majority accepts that Officers’ decision to

keep pressing was “reasonable” because a paramedic was

present. Whether this decision was indeed reasonable turns

on factual questions, such as Officers’ perception of Perez’s

struggle to breathe and the substance of Officers’ training.

“Because the reasonableness standard ‘nearly always

requires a jury to sift through disputed factual

contentions . . . summary judgment . . . in excessive force

cases should be granted sparingly.’” Torres, 648 F.3d at

1125 (quoting Santos v. Gates, 287 F.3d 846, 853 (9th

Cir.2002)). “This principle applies with particular force

where,” as here, “the only witness other than [the

defendants] was killed during the encounter.” Gonzalez v.

City of Anaheim, 747 F.3d 789 (9th Cir. 2014) (en banc).

Even if the paramedic did direct the application of lethal

force, police officers are not immunized from obviously

unconstitutional conduct merely because they were

following instructions. See California Att’ys for Crim. Just.

v. Butts, 195 F.3d 1039, 1050 (9th Cir. 1999) (“a reasonable

police officer should have known that this conduct was

improper . . . whether or not the conduct was endorsed by

training materials”); Grossman v. City of Portland, 33 F.3d

1200, 1209 (9th Cir.1994) (“Where a statute authorizes

official conduct which is patently violative of fundamental

placement of the backboard was relevant. To the contrary, the district

court quoted the coroner’s description of a “ten minute restraining

process”—a duration that clearly extends beyond the time the backboard

was in place. The majority’s assertion that “the only use of force that

Plaintiffs challenge is the restraint that occurred after the paramedics

responded” is unfounded.

32 PEREZ V. CITY OF FRESNO

constitutional principles, an officer who enforces that statute

is not entitled to qualified immunity”); Kennedy v. City Of

Cincinnati, 595 F.3d 327, 337 (6th Cir. 2010) (“[S]ince

World War II, the ‘just following orders’ defense has not

occupied a respected position in our jurisprudence, and

officers in such cases may be held liable under § 1983 if

there is a reason why any of them should question the

validity of that order.”) (quoting O’Rourke v. Hayes, 378

F.3d 1201, 1210 n.5 (11th Cir. 2004)).

We have never held that compliance with an

unconstitutional order should be treated differently just

because the order comes from someone other than a direct

supervisor. To the contrary, we have held that constitutional

liability extends to all “integral participants” in the

constitutional violation, including those who merely fail to

intercede in unconstitutional conduct before them. See

Green v. City & Cnty of San Francisco, 751 F.3d 1039, 1051

(9th Cir. 2014); Tobias v. Arteaga, 996 F.3d 571, 583–84

(9th Cir. 2021).

III

In sum, Drummond clearly establishes the law in this

case. The Officers’ argument that their conduct was

nonetheless reasonable requires us to decide factual

questions that should be resolved by a jury. As such, I

respectfully dissent from the affirmation of summary

judgment for the individual officer defendants.