Petition for Writ of Certiorari — Shannon Deasey, et al., Petitioners v. Daniella Slater, et al.
Supreme Court briefMar 2, 2020
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App. 1
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIELLA SLATER; et al.,
Plaintiffs-Appellants,
v.
SHANNON DEASEY,
Deputy; et al.,
No. 17-56708
D.C. No.
5:16-cv-01103-JFW-KK
AMENDED
MEMORANDUM*
Defendants-Appellees. (Filed Dec. 3, 2019)
DANIELLA SLATER; et al.,
Plaintiffs-Appellees,
v.
No. 17-56751
D.C. No.
5:16-cv-01103-JFW-KK
SHANNON DEASEY,
Deputy; et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted May 13, 2019
Pasadena, California
* This disposition is not appropriate for publication and is
not precedent except as provided by Ninth Circuit Rule 36-3.
App. 2
Before: NGUYEN and OWENS, Circuit Judges, and
ANTOON,** District Judge.
Joseph Slater passed away on April 15, 2015, during an arrest by Sheriff ’s deputies of the County of San
Bernardino. Plaintiffs, the children and parents of
Slater, contend that Slater died from positional asphyxiation due to pressure applied to his body while
he was restrained and on his stomach. They filed suit
against the deputies pursuant to 42 U.S.C. § 1983, asserting that the deputies violated the Fourth Amendment by using excessive force during the arrest. The
district court granted summary judgment to the deputies and County of San Bernardino, concluding that
although the force used during part of the encounter
was excessive when viewing the facts in the light most
favorable to the Plaintiffs, the deputies were nevertheless entitled to qualified immunity. The Plaintiffs appeal the district court’s grant of qualified immunity to
the deputies.1 We have jurisdiction under 28 U.S.C.
§ 1291. We affirm in part, reverse in part, and remand
for trial.
Slater, who was known to the deputies from prior
contacts as mentally ill with a history of drug addiction, was allegedly pulling wires out of a gas station
building.2 Deputy Deasey responded to the scene and
** The Honorable John Antoon II, United States District
Judge for the Middle District of Florida, sitting by designation.
1
Defendants cross-appeal the district court’s conclusion that
their application of the second and third hobbles violated the
Fourth Amendment.
2
Nearby security cameras captured most of the incident.
App. 3
recognized that Slater was on drugs. He placed Slater
under arrest, handcuffed him without resistance, and
attempted to place him in the back of a patrol car with
the intention of taking him to the hospital for psychiatric care. Slater was initially compliant, but before he
was completely in the patrol car, he became agitated
and fearful, telling Deputy Deasey several times,
“You’re not a cop, sir,” and, “You’re going to kill me.” After Slater failed to comply with Deputy Deasey’s repeated orders to slide into the car, the deputy deployed
three pepper sprays at Slater after warning that he
would do so. Slater reacted by moving around and yelling things like, “You’re blinding me.” Although the parties dispute how it happened, Slater ended up on the
ground with Deputy Deasey using his body weight to
restrain Slater. Other deputies who had responded to
the scene, Gentry and Rude, assisted Deasey in applying a hobble restraint to Slater’s ankles, connecting it
to his handcuffs from the back. Due to the slack in the
hobble, Slater was able to sit on his own, and he did so
without further resistance. Under these circumstances, the district court found that the application of
this first hobble did not constitute excessive force. We
agree and affirm the district court’s conclusion.
After attempting to wash pepper spray off Slater,
the deputies carried him to the patrol car and slid him
onto the back seat on his stomach, but Slater was able
to partially slide out of the open car door on the other
side. The deputies pushed him back onto the seat and
applied second and third hobbles to hogtie Slater—the
second hobble to bind his feet and hands more tightly
App. 4
together, and the third hobble to secure him to the car.
While the second and third hobbles were applied,
Slater remained on his chest and stomach. The officers
admitted placing some pressure on Slater’s ribs and
shoulder during the application of the second and third
hobbles. The autopsy showed extensive bruising that
Plaintiffs argue is consistent with pressure to Slater’s
shoulders and back. At some point, the deputies realized that Slater was no longer moving. Fire Department paramedics were already on the scene because
Deasey had called for them before applying the first
hobble. The deputies removed Slater from the car and
the paramedics immediately began to treat him. They
transported him to the hospital, but despite medical
personnel’s attempts to revive him, Slater passed
away.
The district court found that the application of the
second and third hobbles constituted excessive force
under the Fourth Amendment, but that the deputies
were entitled to qualified immunity because their actions did not violate clearly established law. We agree
that the force was excessive, but viewing the facts in
the light most favorable to Plaintiffs, see Bravo v. City
of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011), we
conclude that Defendants are not entitled to qualified
immunity.
When reviewing qualified immunity determinations made at the summary judgment stage, we must
consider (1) whether “[t]aken in the light most favorable to the party asserting the injury the facts alleged
show the officer’s conduct violated a constitutional
App. 5
right,” Saucier v. Katz, 533 U.S. 194, 201 (2001) (ellipsis
omitted), and (2) “ ‘whether the right was clearly established in light of the specific context of the case’ such
that ‘it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.’ ”
Drummond ex rel. Drummond v. City of Anaheim, 343
F.3d 1052, 1056 (9th Cir. 2003) (ellipsis omitted) (quoting Headwaters Forest Def. v. County of Humboldt, 276
F.3d 1125, 1129 (9th Cir. 2002)); see also Pearson v. Callahan, 555 U.S. 223, 236 (2009). Defendants bear the
burden of proving they are entitled to qualified immunity. See Moreno v. Baca, 431 F.3d 633, 638 (9th Cir.
2005).
Fourth Amendment excessive force claims require
courts to balance “the nature and quality of the intrusion” with the “countervailing governmental interests
at stake” to evaluate the objective reasonableness of
the force in context. Graham v. Connor, 490 U.S. 386,
396 (1989). Further, “a detainee’s mental illness” is a
factor bearing on the government’s interest. Drummond, 343 F.3d at 1058 (discussing Deorle v. Rutherford, 272 F.3d 1272, 1282–83 (9th Cir. 2001)). We
therefore agree with the district court that the force
used in applying the second and third hobbles was excessive.
But we do not agree with the district court’s conclusion on the second prong of the qualified immunity
analysis—whether “it would be clear to a reasonable
officer that his conduct was unlawful in the situation
he confronted.” Drummond, 343 F.3d at 1056 (quoting
Headwaters, 276 F.3d at 1129). We take seriously the
App. 6
Supreme Court’s warning that “ ‘clearly established
law’ should not be defined ‘at a high level of generality.’ ” White v. Pauly, 137 S. Ct. 548, 552 (2017) (citation
omitted); see also S.B. v. County of San Diego, 864 F.3d
1010, 1015 (9th Cir. 2017) (“We hear the Supreme
Court loud and clear.”). This case presents no such risk,
as Drummond provides “fair warning” to Defendants
that their alleged actions were unconstitutional. 343
F.3d at 1060–61. In Drummond, we clearly established
that “squeezing the breath from a compliant, prone,
and handcuffed individual . . . involves a degree of
force that is greater than reasonable.” Id. at 1059; see
also id. at 1059–62. There, officers placed body weight
on the arrestee’s back and neck while he was handcuffed and lying on his stomach. Id. at 1059. Here,
viewing the evidence in the light most favorable to
Plaintiffs, Slater was hogtied and placed on his stomach in the back of the police car, and the deputies applied pressure to his body during the second and third
hobbling, after pressure was already applied to his
shoulders in the prone position during the first hobbling. Deputy Gentry testified that he placed pressure
on Slater’s left rib area with his knee while applying
the second hobble. Deputy Brandt, who arrived after
the application of the first hobble, and who was positioned on the driver’s side of the car, testified that he
put his foot against Slater’s shoulder to prevent Slater
from sliding out of the car. Prior to closing the patrol
car door, Deputy Brandt heard Slater make a spitting
noise. Before long, Slater had vomited and largely
stopped breathing. We conclude that the circumstances
here are sufficiently analogous to Drummond such
App. 7
that Defendants were on notice that their use of force
violated the Fourth Amendment.3
We therefore reverse the district court’s grant of
qualified immunity as to the use of the second and
third hobbles. We also vacate the district court’s dismissal of the Plaintiffs’ Fourteenth Amendment familial association claim because the Defendants do not
argue and have therefore waived any argument that
the facts here would not show deliberate indifference
or shock the conscience.4 See Wilkinson v. Torres, 610
F.3d 546, 554 (9th Cir. 2010).
We affirm the grant of summary judgment as to
the Fourth Amendment and Fourteenth Amendment
3
Drummond specifically involved officers squeezing the
breath from an individual “despite his pleas for air.” 343 F.3d at
1059. However, no court has interpreted Drummond to require a
restrained suspect to “plead for air” before receiving Fourth
Amendment protection. McCue v. City of Bangor, 838 F.3d 55, 64
(1st Cir. 2016) (“[E]xerting significant, continued force on a person’s back ‘while that [person] is in a face-down prone position
after being subdued and/or incapacitated constitutes excessive
force.”) (citation omitted); Weigel v. Broad, 544 F.3d 1143, 1155
(10th Cir. 2008) (“[A]pplying pressure to [a suspect’s] upper back,
once he was handcuffed and his legs restrained, was constitutionally unreasonable due to the significant risk of positional asphyxiation associated with such actions.”); Champion v. Outlook
Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004) (“Creating asphyxiating conditions by putting substantial or significant pressure, such as body weight, on the back of an incapacitated and
bound suspect constitutes objectively unreasonable excessive
force.”).
4
We also vacate the dismissal of the Plaintiffs’ state law assault, battery, and wrongful death by negligence in force and restraint claims in light of this decision.
App. 8
claims for denial of medical care, given Deasey’s call
for medical personnel to stand by and Slater’s immediate treatment.
AFFIRMED in part, REVERSED in part, and
REMANDED.
App. 9
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIELLA SLATER; et al.,
Plaintiffs-Appellants,
v.
SHANNON DEASEY,
Deputy; et al.,
Defendants-Appellees.
DANIELLA SLATER; et al.,
Plaintiffs-Appellees,
v.
No. 17-56708
D.C. No.
5:16-cv-01103-JFW-KK
Central District of
California, Riverside
ORDER
(Filed Dec. 3, 2019)
No. 17-56751
D.C. No.
5:16-cv-01103-JFW-KK
SHANNON DEASEY,
Deputy; et al.,
Defendants-Appellants.
Before: NGUYEN and OWENS, Circuit Judges, and
ANTOON,* District Judge.
The Memorandum Disposition, filed on June 20,
2019, and reported at 776 F. App’x 942 (9th Cir. 2019),
is amended as follows:
* The Honorable John Antoon II, United States District
Judge for the Middle District of Florida, sitting by designation.
App. 10
At 776 F. App’x at 944, the sentence beginning
with <Drummond provides “fair warning”> is amended
as follows:
We take seriously the Supreme Court’s warning
that “ ‘clearly established law’ should not be defined ‘at a high level of generality.’ ” White v. Pauly,
137 S. Ct. 548, 552 (2017) (citation omitted); see
also S.B. v. County of San Diego, 864 F.3d 1010,
1015 (9th Cir. 2017) (“We hear the Supreme Court
loud and clear.”). This case presents no such risk,
as Drummond provides “fair warning” to Defendants that their alleged actions were unconstitutional.
At 776 F. App’x at 945, the following sentences are
added after <testified that he put his foot against
Slater’s shoulder to prevent Slater from sliding out of
the car.>:
Prior to closing the patrol car door, Deputy Brandt
heard Slater make a spitting noise. Before long,
Slater had vomited and largely stopped breathing.
At 776 F. App’x at 945, the following footnote is
added after the paragraph ending <Defendants were
on notice that their use of force violated the Fourth
Amendment>:
Drummond specifically involved officers squeezing
the breath from an individual “despite his pleas
for air.” 343 F.3d at 1059. However, no court has
interpreted Drummond to require a restrained
suspect to “plead for air” before receiving Fourth
Amendment protection. McCue v. City of Bangor,
838 F.3d 55, 64 (1st Cir. 2016) (“[E]xerting
App. 11
significant, continued force on a person’s back
‘while that [person] is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force.”) (citation omitted); Weigel
v. Broad, 544 F.3d 1143, 1155 (10th Cir. 2008)
(“[A]pplying pressure to [a suspect’s] upper back,
once he was handcuffed and his legs restrained,
was constitutionally unreasonable due to the significant risk of positional asphyxiation associated
with such actions.”); Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004)
(“Creating asphyxiating conditions by putting
substantial or significant pressure, such as body
weight, on the back of an incapacitated and bound
suspect constitutes objectively unreasonable excessive force.”).
App. 12
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIELLA SLATER; et al.,
Plaintiffs-Appellants,
v.
SHANNON DEASEY,
Deputy; et al.,
No. 17-56708
D.C. No.
5:16-cv-01103-JFW-KK
MEMORANDUM*
(Filed Jun. 20, 2019)
Defendants-Appellees.
DANIELLA SLATER; et al.,
Plaintiffs-Appellees,
v.
No. 17-56751
D.C. No.
5:16-cv-01103-JFW-KK
SHANNON DEASEY,
Deputy; et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted May 13, 2019
Pasadena, California
* This disposition is not appropriate for publication and is
not precedent except as provided by Ninth Circuit Rule 36-3.
App. 13
Before: NGUYEN and OWENS, Circuit Judges, and
ANTOON,** District Judge.
Joseph Slater passed away on April 15, 2015, during an arrest by Sheriff ’s deputies of the County of San
Bernardino. Plaintiffs, the children and parents of
Slater, contend that Slater died from positional asphyxiation due to pressure applied to his body while
he was restrained and on his stomach. They filed suit
against the deputies pursuant to 42 U.S.C. § 1983, asserting that the deputies violated the Fourth Amendment by using excessive force during the arrest. The
district court granted summary judgment to the deputies and County of San Bernardino, concluding that
although the force used during part of the encounter
was excessive when viewing the facts in the light most
favorable to the Plaintiffs, the deputies were nevertheless entitled to qualified immunity. The Plaintiffs appeal the district court’s grant of qualified immunity to
the deputies.1 We have jurisdiction under 28 U.S.C.
§ 1291. We affirm in part, reverse in part, and remand
for trial.
Slater, who was known to the deputies from prior
contacts as mentally ill with a history of drug addiction, was allegedly pulling wires out of a gas station
building.2 Deputy Deasey responded to the scene and
** The Honorable John Antoon II, United States District
Judge for the Middle District of Florida, sitting by designation.
1
Defendants cross-appeal the district court’s conclusion that
their application of the second and third hobbles violated the
Fourth Amendment.
2
Nearby security cameras captured most of the incident.
App. 14
recognized that Slater was on drugs. He placed Slater
under arrest, handcuffed him without resistance, and
attempted to place him in the back of a patrol car with
the intention of taking him to the hospital for psychiatric care. Slater was initially compliant, but before he
was completely in the patrol car, he became agitated
and fearful, telling Deputy Deasey several times,
“You’re not a cop, sir,” and, “You’re going to kill me.” After Slater failed to comply with Deputy Deasey’s repeated orders to slide into the car, the deputy deployed
three pepper sprays at Slater after warning that he
would do so. Slater reacted by moving around and yelling things like, “You’re blinding me.” Although the parties dispute how it happened, Slater ended up on the
ground with Deputy Deasey using his body weight to
restrain Slater. Other deputies who had responded to
the scene, Gentry and Rude, assisted Deasey in applying a hobble restraint to Slater’s ankles, connecting it
to his handcuffs from the back. Due to the slack in the
hobble, Slater was able to sit on his own, and he did so
without further resistance. Under these circumstances, the district court found that the application of
this first hobble did not constitute excessive force. We
agree and affirm the district court’s conclusion.
After attempting to wash pepper spray off Slater,
the deputies carried him to the patrol car and slid him
onto the back seat on his stomach, but Slater was able
to partially slide out of the open car door on the other
side. The deputies pushed him back onto the seat and
applied second and third hobbles to hogtie Slater—the
second hobble to bind his feet and hands more tightly
App. 15
together, and the third hobble to secure him to the car.
While the second and third hobbles were applied,
Slater remained on his chest and stomach. The officers
admitted placing some pressure on Slater’s ribs and
shoulder during the application of the second and third
hobbles. The autopsy showed extensive bruising that
Plaintiffs argue is consistent with pressure to Slater’s
shoulders and back. At some point, the deputies realized that Slater was no longer moving. Fire Department paramedics were already on the scene because
Deasey had called for them before applying the first
hobble. The deputies removed Slater from the car and
the paramedics immediately began to treat him. They
transported him to the hospital, but despite medical
personnel’s attempts to revive him, Slater passed
away.
The district court found that the application of the
second and third hobbles constituted excessive force
under the Fourth Amendment, but that the deputies
were entitled to qualified immunity because their actions did not violate clearly established law. We agree
that the force was excessive, but viewing the facts in
the light most favorable to Plaintiffs, see Bravo v. City
of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011), we
conclude that Defendants are not entitled to qualified
immunity.
When reviewing qualified immunity determinations made at the summary judgment stage, we must
consider (1) whether “[t]aken in the light most favorable to the party asserting the injury the facts alleged
show the officer’s conduct violated a constitutional
App. 16
right,” Saucier v. Katz, 533 U.S. 194, 201 (2001) (ellipsis
omitted), and (2) “ ‘whether the right was clearly established in light of the specific context of the case’ such
that ‘it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.’ ”
Drummond ex rel. Drummond v. City of Anaheim, 343
F.3d 1052, 1056 (9th Cir. 2003) (ellipsis omitted) (quoting Headwaters Forest Def. v. County of Humboldt, 276
F.3d 1125, 1129 (9th Cir. 2002)); see also Pearson v. Callahan, 555 U.S. 223, 236 (2009). Defendants bear the
burden of proving they are entitled to qualified immunity. See Moreno v. Baca, 431 F.3d 633, 638 (9th Cir.
2005).
Fourth Amendment excessive force claims require
courts to balance “the nature and quality of the intrusion” with the “countervailing governmental interests
at stake” to evaluate the objective reasonableness of
the force in context. Graham v. Connor, 490 U.S. 386,
396 (1989). Further, “a detainee’s mental illness” is a
factor bearing on the government’s interest. Drummond, 343 F.3d at 1058 (discussing Deorle v. Rutherford, 272 F.3d 1272, 1282–83 (9th Cir. 2001)). We
therefore agree with the district court that the force
used in applying the second and third hobbles was excessive.
But we do not agree with the district court’s conclusion on the second prong of the qualified immunity
analysis—whether “it would be clear to a reasonable
officer that his conduct was unlawful in the situation
he confronted.” Drummond, 343 F.3d at 1056 (quoting
Headwaters, 276 F.3d at 1129). Drummond provides
App. 17
“fair warning” to Defendants that their alleged actions
were unconstitutional. 343 F.3d at 1060–61. In Drummond, we clearly established that “squeezing the
breath from a compliant, prone, and handcuffed individual . . . involves a degree of force that is greater
than reasonable.” Id. at 1059; see also id. at 1059–62.
There, officers placed body weight on the arrestee’s
back and neck while he was handcuffed and lying on
his stomach. Id. at 1059. Here, viewing the evidence in
the light most favorable to Plaintiffs, Slater was hogtied and placed on his stomach in the back of the police
car, and the deputies applied pressure to his body during the second and third hobbling, after pressure was
already applied to his shoulders in the prone position
during the first hobbling. Deputy Gentry testified that
he placed pressure on Slater’s left rib area with his
knee while applying the second hobble. Deputy Brandt,
who arrived after the application of the first hobble,
and who was positioned on the driver’s side of the car,
testified that he put his foot against Slater’s shoulder
to prevent Slater from sliding out of the car. We conclude that the circumstances here are sufficiently analogous to Drummond such that Defendants were on
notice that their use of force violated the Fourth
Amendment.
We therefore reverse the district court’s grant of
qualified immunity as to the use of the second and
third hobbles. We also vacate the district court’s dismissal of the Plaintiffs’ Fourteenth Amendment familial association claim because the Defendants do not
argue and have therefore waived any argument that
App. 18
the facts here would not show deliberate indifference
or shock the conscience.3 See Wilkinson v. Torres, 610
F.3d 546, 554 (9th Cir. 2010).
We affirm the grant of summary judgment as to
the Fourth Amendment and Fourteenth Amendment
claims for denial of medical care, given Deasey’s call
for medical personnel to stand by and Slater’s immediate treatment.
AFFIRMED in part, REVERSED in part, and
REMANDED.
3
We also vacate the dismissal of the Plaintiffs’ state law assault, battery, and wrongful death by negligence in force and restraint claims in light of this decision.
App. 19
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. EDCV 16-1103-JFW (KKx)
Date: September 25, 2017
Title:
Sandra Salazar, et al. -v- Shandon Deasey, et al.
PRESENT:
HONORABLE JOHN F. WALTER,
UNITED STATES DISTRICT JUDGE
Shannon Reilly
Courtroom Deputy
None Present
Court Reporter
ATTORNEYS PRESENT ATTORNEYS PRESENT
FOR PLAINTIFFS:
FOR DEFENDANTS:
None
None
PROCEEDINGS (IN CHAMBERS):
ORDER GRANTING MOTION BY DEFENDANTS FOR SUMMARY JUDGMENT, OR PARTIAL SUMMARY JUDGMENT [filed 8/14/17;
Docket No. 66];
ORDER DENYING AS MOOT DEFENDANTS’
MOTION TO EXCLUDE OPINIONS OF PLAINTIFFS’ EXPERT RONALD O’HALLORAN
[DAUBERT MOTION] [filed 8/14/17; Docket
No. 86]; and
ORDER DENYING AS MOOT DEFENDANTS’
MOTION TO EXCLUDE MEDICAL CAUSATION OPINIONS OF PLAINTIFFS’ POLICE
App. 20
PRACTICES CONSULTANT ROGER CLARK
[DAUBERT MOTION] [filed 8/14/17; Docket
No. 87]
On August 14, 2017, Defendants County of San
Bernardino (the “County”), Deputy Shandon Deasey
(“Deasey”), Deputy Peter Gentry (“Gentry”), Deputy
Gary Brandt (“Brandt”), and Sergeant Mike Rude
(“Rude”) (collectively, “Defendants”) filed a Motion for
Summary Judgment, or Partial Summary Judgment
(“Motion for Summary Judgment”). On August 25,
2017, Plaintiffs Daniella Slater and Damien Slater, individually and as successors in interest, by and
through their Guardian ad Litem Sandra Salazar, Tina
Slater, and David Bouchard (collectively, “Plaintiffs”)
filed their Opposition. On September 1, 2017, Defendants filed a Reply. On August 14, 2017, Defendants
filed a Motion to Exclude Opinions of Plaintiffs’ Expert
Ronald O’Halloran [Daubert Motion] (“Motion to Exclude Re: O’Halloran”). On August 25, 2017, Plaintiffs
filed their Opposition. On September 1, 2017, Defendants filed a Reply. On August 14, 2017, Defendants
filed a Motion to Exclude Medical Causation Opinions
of Plaintiffs’ Police Practices Consultant Roger Clark
[Daubert Motion] (“Motion to Exclude Re: Clark”). On
August 25, 2017, Plaintiffs filed their Opposition. On
September 1, 2017, Defendants filed a Reply. After
hearing oral argument on September 11, 2017, the
Court granted Defendants’ Motion for Summary Judgment in part, and took the remaining portion of Defendants’ Motion for Summary Judgment under
submission pending supplemental briefing by the parties. On September 15, 2017, Plaintiffs filed their
App. 21
Supplemental Brief. On September 18, 2017, Defendants filed their Supplemental Brief. After reviewing
the moving, opposing, reply, and supplemental papers
and hearing oral argument, the Court confirms its rulings on September 11, 2017 and makes the following
additional rulings:
Factual and Procedural Background1
I.
A. The Decedent
Decedent Joseph Slater (“Slater”) was a 28 year old
male, five feet nine inches in height, and weighed approximately 150 pounds. Slater suffered from bi-polar
disorder and had previous psychiatric hospitalizations,
or “5150s.” Slater was known by local law enforcement
in the City of Highland, and they knew that Slater suffered from mental disorders which caused him to act
abnormal at times, that Slater had been hospitalized
for psychiatric reasons, and that Slater had had several prior contacts with the San Bernardino Sheriff ’s
Department (“SBSD”).
1
The facts in this case are largely undisputed because video
from the security cameras at the Valero gas station captured the
events of the April 15, 2015 incident. In addition, there is audio
for a portion of the incident, captured by the recording devices
worn by the SBSD deputies. However, to the extent any of these
facts are disputed, they are not material to the disposition of this
Motion for Summary Judgment. In addition, to the extent that
the Court has relied on evidence to which the parties have objected, the Court has considered and overruled those objections.
As to the remaining objections, the Court finds that it is unnecessary to rule on those objections because the disputed evidence was
not relied on by the Court.
App. 22
B. The April 15, 2015 Incident
On April 15, 2015, at approximately 1:00 a.m.,
Slater was at the Valero gas station located at 27767
Baseline Road in Highland, California. Edward Cowell
(“Cowell”), the Valero gas station attendant on duty
that night, spotted a man (later identified as Slater) wandering around outside the gas station. Cowell watched
Slater walk towards the propane tanks near the northwest corner of the building. Although he could no
longer see Slater, Cowell could hear thumping on the
wall. At the same time, the computer inside the gas
station indicated that all the gas pumps had been disabled. Cowell then received a phone call from one of his
regular customers who advised him that an unknown
male was outside pulling wires out of the wall. Cowell
called the police and reported that a guy on drugs was
pulling wires out of the emergency gasoline shut off
switch for the gas pumps and hitting an outside security drawer with pieces of wood. Cowell described
Slater as a white male adult with spiked hair and
wearing a white t-shirt.
At approximately 1:17 a.m., SBSD deputies from
the Highland station were dispatched to investigate a
possible vandalism at the Valero by a white male adult.
Deasey was the first SBSD deputy to arrive at the gas
station at approximately 1:23 a.m., and saw an individual matching the description given by Cowell. As
Deasey approached the individual he recognized him
as Slater. At the time Deasey arrived, Slater was
crouching behind a firewood container in front of the
App. 23
gas station. Slater then stood up and appeared to be
mesmerized by a large display screen. Deasey approached Slater, identified himself, and asked Slater
what he was doing. Slater glanced back at Deasey and
said nothing, turning his focus back to the large display screen. In response to Deasey’s request, Slater
willingly placed both of his hands behind his back and
was handcuffed. Once Slater was handcuffed, Deasey
escorted Slater to his patrol car. Throughout this initial encounter, Slater was calm and cooperative.
Although Slater sat down on the backseat of
Deasey’s patrol car, Slater refused to put his legs and
feet inside. Slater told Deasey that he did not believe
Deasey was a police officer and that Deasey was going
to kill him. Deasey assured Slater that he would not be
harmed, but Slater continued to insist that Deasey was
not a police officer, was going to kill him, and, according
to Deasey, Slater began to physically resist Deasey and
attempted to get out of the patrol car. Slater continued
to resist Deasey despite being warned four times that
Deasey would use pepper spray if he did not slide all
the way into the patrol car. As a result of Slater’s failure to comply with Deasey’s commands, Deasey pepper
sprayed Slater three times. According to Deasey, Slater
lunged out of the vehicle while Deasey was holding on
to Slater’s shoulder, and both Deasey and Slater went
to the ground. Deasey was able to gain control over
Slater and alerted dispatch that he had a suspect that
was resisting. Deasey asked dispatch to “roll medical”
and advised that the suspect was Slater. Once Slater
was on the ground, he continued to resist by kicking
App. 24
his feet and yelling random words, such as “twentyseven,” “mom,” and “Slater.”
Shortly after Deasey called dispatch, SBSD Deputy Gentry arrived on the scene and he held Slater
down while Deasey retrieved a hobble from Gentry’s
patrol car. As Deasey and Gentry were placing the hobble on Slater, SBSD Sergeant Rude arrived and he assisted Deasey and Gentry as they attached the hobble
to Slater’s legs. From the time Slater was first on the
ground until the first hobble was attached, Slater was
never flat on his chest/stomach for more than a few seconds. In fact, while Deasey, Gentry, and Rude were
waiting for paramedics to arrive to treat Slater, Slater
was able to sit up without assistance.
Shortly after the first hobble was placed on Slater,
Cal Fire paramedics responded to the scene and performed a medical evaluation of Slater, determined he
was stable, and released him to the deputies to transport
him to jail.2 After the evaluation, Gentry and SBSD
Deputy Brandt carried Slater over to the air and water
station to decontaminate him by rinsing the pepper
spray from his head and eyes. Gentry and Brandt carried Slater back to Deasey’s patrol car, put him in the
backseat, and closed the door. Although Slater was
briefly chest/stomach down when Gentry and Brandt
slid Slater into the backseat of Deasey’s patrol car,
2
An AMR ambulance arrived on scene shortly after Cal Fire
arrived. However, once it was determined that Slater was stable
and the deputies would be transporting him to jail, the Cal Fire
paramedics advised the ambulance personnel that they were
clear to leave the scene, which they did.
App. 25
Slater was able to freely move around, first moving
onto his right side and then sitting up. Slater struggled
and thrashed around in the backseat for approximately two minutes.
After the deputies decided that they should seatbelt Slater before transporting him, they opened the
rear doors and attempted to place a seatbelt on Slater.
The deputies were unable to seatbelt Slater due to his
resistance. During this process, Slater briefly escaped
from the patrol car. The deputies returned Slater to the
backseat of the patrol car, where he continued to struggle and thrash about. After Slater started kicking at
the window, the deputies decided to put a second hobble on Slater. Gentry entered the rear of the patrol car
and attached a second hobble to Slater while Slater
continued to resist. While Gentry was placing the hobble on Slater, Brandt put his right foot against the top
of Slater’s left shoulder, near the top of the shoulder
blade, to prevent Slater from pushing his way out of
the vehicle again. As Gentry attached the second hobble, he was positioned over Slater, but never used his
body weight to control Slater. At best, Gentry’s knee
unintentionally touched Slater’s rib cage as he was attaching the second hobble. When it was determined
that the second hobble was too short to adequately secure it, Deasey attached a third hobble to the second
hobble and looped the third hobble through the cage
between the front and rear seats of the patrol car, extended the third hobble to the exterior of the vehicle,
and closed the door. Although Slater was initially on
his chest/stomach, which was the only practical way of
App. 26
placing him in the back seat, the deputies later positioned Slater on his side. The parties dispute whether
Slater remained on his side.
After approximately 40 seconds, the deputies realized that Slater had suddenly stopped moving. The
deputies immediately opened the rear doors of the patrol car, removed the hobbles, and removed Slater from
the back seat of the patrol car. Cal Fire paramedics,
who had remained on the scene, immediately began
treating Slater. After initially detecting a pulse and agonal breathing, the paramedics later determined that
Slater no longer had a pulse. At that point, the paramedics began performing cardiovascular pulmonary
resuscitation on Slater. An AMR ambulance was called
to the scene, and Slater was transported to St. Bernadine’s Hospital where he was later pronounced dead.
C. Procedural History
On May 27, 2016, Plaintiffs Sandra Salazar, individually and as mother and natural guardian for minor children of the decedent, Daniella Slater and
Damien Slater, Tina Slater (the decedent’s mother),
and David Bouchard (the decedent’s father) filed their
Complaint. On August 7, 2017, Plaintiffs filed their
First Amended Complaint against Defendants.3 In
the First Amended Complaint, Plaintiffs allege causes
of action for: (1) unreasonable seizure – detention (42
U.S.C. § 1983) against Deasey, Gentry, Brandt, and
3
In the First Amended Complaint, Sandra Salazar abandoned her individual claims.
App. 27
Rude (the “Individual Defendants”); (2) excessive force
(42 U.S.C. § 1983) against the Individual Defendants;
(3) deliberate indifference to decedent’s medical needs
(42 U.S.C. § 1983) against the Individual Defendants;
(4) violation of Plaintiffs’ civil rights to familial relationship (42 U.S.C. § 1983); (5) wrongful death by negligence in force and restraint (C.C.P. § 377.60 and
377.61) against Defendants; and (6) assault and battery – survival claim against Defendants. On August
21, 2017, Defendants filed their Answer.
II.
Legal Standard
Summary judgment is proper where “the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The moving party
has the burden of demonstrating the absence of a genuine issue of fact for trial. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving
party meets its burden, a party opposing a properly
made and supported motion for summary judgment
may not rest upon mere denials but must set out specific facts showing a genuine issue for trial. Id. at 250;
Fed. R. Civ. P. 56(c), (e); see also Taylor v. List, 880 F.2d
1040, 1045 (9th Cir. 1989) (“A summary judgment motion cannot be defeated by relying solely on conclusory
allegations unsupported by factual data.”). In particular, when the non-moving party bears the burden of
proving an element essential to its case, that party
must make a showing sufficient to establish a genuine
issue of material fact with respect to the existence of
App. 28
that element or be subject to summary judgment. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “An
issue of fact is not enough to defeat summary judgment; there must be a genuine issue of material fact, a
dispute capable of affecting the outcome of the case.”
American International Group, Inc. v. American International Bank, 926 F.2d 829, 833 (9th Cir. 1991)
(Kozinski, dissenting).
An issue is genuine if evidence is produced that
would allow a rational trier of fact to reach a verdict in
favor of the non-moving party. Anderson, 477 U.S. at
248. “This requires evidence, not speculation.” Meade
v. Cedarapids, Inc., 164 F.3d 1218, 1225 (9th Cir. 1999).
The Court must assume the truth of direct evidence set
forth by the opposing party. See Hanon v. Dataproducts
Corp., 976 F.2d 497, 507 (9th Cir. 1992). However,
where circumstantial evidence is presented, the Court
may consider the plausibility and reasonableness of inferences arising therefrom. See Anderson, 477 U.S. at
249-50; TW Elec. Serv., Inc. v. Pacific Elec. Contractors
Ass’n, 809 F.2d 626, 631-32 (9th Cir. 1987). Although
the party opposing summary judgment is entitled to
the benefit of all reasonable inferences, “inferences
cannot be drawn from thin air; they must be based on
evidence which, if believed, would be sufficient to support a judgment for the nonmoving party.” American
International Group, 926 F.2d at 836-37. In that regard, “a mere ‘scintilla’ of evidence will not be sufficient
to defeat a properly supported motion for summary
judgment; rather, the nonmoving party must introduce
some ‘significant probative evidence tending to support
App. 29
the complaint.’ ” Summers v. Teichert & Son, Inc., 127
F.3d 1150, 1152 (9th Cir. 1997).
III. Discussion
In their Motion for Summary Judgment, Defendants seek judgment on all six causes of action alleged
by Plaintiffs in their First Amended Complaint. At the
hearing on Defendants’ Motion for Summary Judgment, the Court granted Defendants’ Motion for Summary Judgment on Plaintiffs’ first cause of action for
unreasonable seizure – detention and Plaintiffs’ third
cause of action for deliberate indifference to decedent’s
medical needs.
With respect to Plaintiffs’ excessive force claim alleged in the second cause of action, the Court held that
Deasey’s use of pepper spray, Deasey’s knee strike to
Slater, and the application of the first hobble (including
any force that may have been used by the deputies in
applying that hobble) were reasonable and did not violate Slater’s Fourth Amendment rights.4 The Court
took under submission Plaintiffs’ remaining theory of
liability for excessive force relating to the force used in
the application of the second and third hobbles. In
4
To the extent any of these rulings were tentative, the Court
holds that they are final for the reasons stated on the record at
the hearing. To the extent the Court withheld ruling at the hearing on whether the Individual Defendants connecting the first
hobble to Slater’s handcuffs violated Slater’s Fourth Amendment
rights, the Court holds that the Individual Defendants are entitled to qualified immunity for the reasons discussed below with
respect to the application of the second and third hobbles.
App. 30
addition, the Court took under submission Defendants’
Motion for Summary Judgment with respect to Plaintiffs’ fourth cause of action for violation of Plaintiffs’
civil rights to familial relationship, fifth cause of action
for wrongful death by negligence in force and restraint,
and sixth cause of action for assault and battery – survival claim.
Because the Court advised counsel at the September 11, 2017 hearing that it had tentatively concluded
that Deasey, Gentry, Rude, and Brandt (collectively, the
“Individual Defendants”) were entitled to qualified immunity with respect to Plaintiffs’ remaining theory of
liability for excessive force relating to the application
of the second and third hobbles, the Court allowed the
parties to file supplemental briefs on the qualified immunity issue. On September 15, 2017, Plaintiffs filed
their Supplemental Brief, and, on September 18, 2017,
Defendants filed their Supplemental Brief.
A. Plaintiffs’ Remaining Excessive Force
Theory.
In their second cause of action, Plaintiffs allege a
violation of Section 1983. It is well established that
Section 1983 itself creates no substantive rights, and
that it merely provides a remedy for deprivation of federal rights established elsewhere. City of Oklahoma
City v. Tuttle, 471 U.S. 808 (1985). “The elements of a
section 1983 action are: (1) that the conduct complained
of was committed by a person acting under color of
state law; and (2) that the conduct deprived a person
App. 31
of rights, privileges or immunities secured by the Constitution or laws of the United States.” Alford v. Haner,
333 F.3d 972, 975-76 (9th Cir. 2003) (citation and internal quotation marks omitted). With respect to the first
element, it is undisputed that the Individual Defendants were acting under color of state law. With respect
to the second element, Plaintiffs allege that the Individual Defendants violated Slater’s Fourth Amendment right to be free from excessive force by placing
him in a chest/stomach down position in the backseat
of Deasey’s patrol car, using force to hold him down
while applying a second and third hobbles, and then
securing the third hobble in such a manner that it
caused his legs to be pulled up towards his buttocks.5
Plaintiffs further allege that this position made it difficult for Slater to breathe, and, as a result, he died
from positional asphyxiation.
5
The Fourth Amendment guarantees the “right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” The Supreme Court has
held that the Fourth Amendment prohibits the use of excessive
force by police in the course of apprehending suspected criminals.
See, Graham v. Connor, 490 U.S. 386, 394-395 (1985). “[T]he question is whether the officers’ actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397. This
determination “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. The calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make
split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.” Id. at 396-97.
App. 32
At the hearing and in their Motion for Summary
Judgment, Defendants argue that the force the Individual Defendants used on Slater in applying the second and third hobbles was necessary and objectively
reasonable in light of his ongoing resistance and failure to comply with their commands, and not a violation
of Slater’s Fourth Amendment rights. Defendants also
argue that even if the force used in applying the second
and third hobble could be considered excessive, the Individual Defendants are entitled to qualified immunity
because reasonable officers in the Individual Defendants’ position would not have known that their actions
violated a clearly established right.
1. Legal Standard for Qualified Immunity.
The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982); see also Messerschmidt v. Millender, 132 S.Ct. 1235 (2012) (holding that “[q]ualified
immunity gives government officials breathing room
to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who
knowingly violate the law”) (internal quotations omitted). In Saucier v. Katz, the Supreme Court established
a two-step sequence for determining whether qualified
immunity attaches to specific circumstances. See Saucier v. Katz, 533 U.S. 194 (2001). First, the Court must
App. 33
determine based on the facts “[t]aken in the light most
favorable to the party asserting the injury,” whether
“the officer’s conduct violated a constitutional right.”
Id. at 201. Second, if the plaintiff satisfies this first
step, the Court must then decide whether the right at
issue was “clearly established” at the time of the alleged misconduct. Id.
Although the determination of qualified immunity
requires a two-step analysis, as the Ninth Circuit recently reiterated “[t]hese two prongs of the analysis
need not be considered in any particular order, and
both prongs must be satisfied for a plaintiff to overcome a qualified immunity defense. Shafer v. County of
Santa Barbara, ___ F.3d ___, 2017 WL 37079094 (9th
Cir. Aug. 29, 2017) (citing Pearson v. Callahan, 555 U.S.
223, 236 (2009)). “The relevant, dispositive inquiry in
determining whether a right is clearly established is
whether it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 201. This is an “objective
but fact-specific inquiry.” Inouye v. Kemna, 504 F.3d
705, 712 (9th Cir. 2007). “I[f ] officers of reasonable competence could disagree on [the] issue, immunity should
be recognized.” Fogel v. Collins, 531 F.3d 824, 833 (9th
Cir. 2008) (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)). “It is the plaintiff who bears the burden of
showing that the rights allegedly violated were ‘clearly
established.’ ” Shafer, ___ F.3d ___, 2017 WL 37079094
(internal citation omitted).
Because the Court finds at the first step of the qualified immunity analysis that the evidence presented by
App. 34
the parties with respect to Plaintiffs’ excessive force
theory relating to the use of force by the Individual Defendants in applying the second and third hobbles is
such that the trier of fact could find in Plaintiffs’ favor
with respect to Plaintiffs’ Fourth Amendment claim,
the Court necessarily proceeds to the determination of
whether the right at issue was clearly established. See
Saucier, 533 U.S. at 201.
a. Whether a Right is Clearly Established is a Particularized Inquiry.
In the recent case of White v. Pauly, ___ U.S. ___,
137 S.Ct. 548, 552 (2017) (per curiam), the Supreme
Court held that “it is again necessary to reiterate the
longstanding principle that ‘clearly established law’
should not be defined ‘at a high level of generality.’ ” In
addition, the Supreme Court held that “[a]s this Court
explained decades ago, the clearly established law
must be ‘particularized’ to the facts of the case.” Id. Indeed, the Supreme Court has “repeatedly told courts –
and the Ninth Circuit in particular – not to define
clearly established law at a high level of generality,”
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citation
omitted), but to consider “whether the violative nature
of particular conduct is clearly established.” Id. at 742;
see also Brosseau v. Haugen, 543 U.S. 194, 198 (2004)
(per curiam) (holding that the relevant inquiry “must
be undertaken in light of the specific context of the
case, not as a broad general proposition”) (quotation
marks omitted). Although the law “do[es] not require a
case directly on point, . . . existing precedent must have
App. 35
placed the statutory or constitutional question beyond
debate.” al-Kidd, 563 U.S. at 741; see also Mullenix v.
Luna, 136 S.Ct. 305, 308 (2015) (per curiam) (“Put
simply, qualified immunity protects all but the plainly
incompetent or those who knowingly violate the law”)
(quotation marks omitted); Saucier, 533 U.S. at 202 (“If
the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment
based on qualified immunity is appropriate”); see also
Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th Cir.
2003) (In performing the second step of the Saucier
analysis, the Court must consider “the reasonableness
of the officer’s belief in the legality of his actions. Even
if his actions did violate the Fourth Amendment, a
reasonable but mistaken belief that his conduct was
lawful would result in the grant of qualified immunity.”).
The Supreme Court has held that “[s]uch specificity is especially important in the Fourth Amendment
context, where the Court has recognized that [i]t is
sometimes difficult for an officer to determine how the
relevant legal doctrine” – in this case, excessive force –
“will apply to the factual situation the officer confronts.” Mullenix, 136 S.Ct. At 308 (quotation marks
omitted). In addition, the Ninth Circuit recently explained in Sharp v. County of Orange, ___ F.3d ___,
2017 WL 4126947, *7 (9th Cir. Sept. 19, 2017), the importance of specificity in the Fourth Amendment context:
Except in the rare case of an “obvious” instance of constitutional misconduct (which is
App. 36
not presented here), Plaintiffs must “identify
a case where an officer acting under similar
circumstances as [defendants] was held to
have violated the Fourth Amendment.” White
v. Pauly, ___ U.S. ___, 137 S.Ct. 548, 552 (2017)
(per curiam) (emphasis added). In other
words, Plaintiffs must point to prior case law
that articulates a constitutional rule specific
enough to alert these deputies in this case
that their particular conduct was unlawful. To
achieve that kind of notice, the prior precedent must be “controlling” – from the Ninth
Circuit or Supreme Court – or otherwise be
embraced by a “consensus” of courts outside
the relevant jurisdiction. Wilson v. Layne, 526
U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818
(1999).
b. The Individual Defendants Did Not
Violate Clearly Established Law.
The second prong of the qualified immunity analysis
requires the Court to determine whether the allegedly
violated constitutional right was clearly established at
the time the defendants purportedly violated it. In this
case, Plaintiffs argue that merely placing Slater chest/
stomach down in the rear seat of Deasey’s patrol car
while handcuffed and “hogtied” was a violation of Slater’s
clearly established rights, but the case law cited by
Plaintiffs does not support Plaintiffs’ argument. Although Plaintiffs cite several cases that they claim
demonstrate that the use of a comparable amount of
force constitutes a violation of the Fourth Amendment,
App. 37
the cases cited by Plaintiffs are distinguishable and
the majority involve individuals who were not only
placed in a chest/stomach down position and hogtied,
but who also had the body weight of one or more officers on their backs for prolonged periods of time or experienced difficulty breathing. For example, in
Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir.
2003), the decedent was chest/stomach down on the
ground, handcuffed, with two officers with their knees
in the decedent’s neck and back, applying their full
body weight on him for approximately twenty minutes
even though the decedent repeatedly told the officers
he could not breathe and that they were choking him.
Similarly, in Garlick v. County of Kern, 167 F.Supp. 3d
1117 (E.D. Cal. 2016), the decedent was chest/stomach
down, handcuffed, with four officers applying body
weight pressure to his back for approximately eight to
ten minutes while two hobbles were attached and the
decedent was hogtied. After the decedent was hogtied
and in prone position, the officers twice picked him up
and dropped him face down on the ground. Id. at 115556. The facts of these cases are significantly different
than the facts of this case. Slater never had the full
body weight of any officer – much less multiple officers
– on him at any time while he was in the backseat of
Deasey’s patrol car or had any difficulty breathing. In
addition, Plaintiffs’ argument that Brandt’s placement
of his foot on Slater’s shoulder is the same or equivalent to multiple officers placing their full body weight
on a suspect is unpersuasive. It is clear from the evidence that Brandt merely placed his foot against
Slater’s shoulder to prevent Slater from (once again)
App. 38
sliding out of the backseat of Deasey’s patrol car. Moreover, Plaintiffs’ argument that Gentry’s position “over”
Slater while Gentry attached the second and third hobbles indicates that Gentry was somehow placing his
entire body weight on Slater is also unpersuasive. Gentry testified in his deposition that his knee unintentionally touched Slater’s rib cage while Slater was on
the backseat, but that his weight was never on top of
Slater’s back. Furthermore, even to the extent Gentry
may have been on Slater’s back for a matter of seconds,
that amount of force is simply not equivalent to the
force described in the cases cited by Plaintiffs, where
several officers placed their entire body weight on a
suspect and held the suspect down for several minutes.
In addition, there are cases that have held that the
type and amount of force used by the Individual Defendants in this case is not excessive. For example, in
Price v. County of San Diego, 990 F.Supp. 1230, 1238
(S.D. Cal. 1998), the court held that “the hogtie restraint in and of itself does not constitute excessive
force – when a violent individual has resisted less severe restraint techniques, applying a physiologically
neutral restraint that will immobilize him is not excessive force.” See, also, Mayard v. Hopwood, 105 F.3d
1226, 1227-28 (8th Cir. 1997) (holding that placing a
person wearing handcuffs and leg restraints in a prone
position in the backseat of a patrol car was reasonable
as a matter of law where the person had violently resisted arrest).
App. 39
2. The Individual Defendants’ Training
Regarding Positional Asphyxiation
Does Not Deprive Them of Qualified
Immunity.
Although Plaintiffs argue that the Individual Defendants had been trained about positional asphyxiation, “such training . . . [is] not dispositive” on either
the question of whether a particular use of force is objectionably reasonable or if reasonable officers would
have been on notice that the force employed was objectionably unreasonable. Drumond ex rel. Drummond v.
City of Anaheim, 343 F.3d 1052 (9th Cir. 2003); see, e.g.,
Price, 990 F.Supp. at 1238 (holding that deputies were
entitled to qualified immunity where duty of peace
officers to personally administer CPR not clearly established, even though deputies had received CPR
training, but none administered CPR to the decedent).
Instead, “[f ]or a right to be clearly established, case
law must ordinarily have been earlier developed in
such a concrete and factually defined context to make
it obvious to all reasonable government actors, in the
defendant’s place, that what he is doing violates federal law.” Shafer, ___ F.3d ___, 2017 WL 37079094; see,
also, White, 137 S.Ct. 548 (“The panel majority misunderstood the ‘clearly established’ analysis: It failed to
identify a case where an officer acting under similar
circumstances as Officer White was held to have violated the Fourth Amendment. Instead, the majority relied on Graham, Garner, and their Court of Appeals
progeny, which – as noted above – lay out excessiveforce principles at only a general level”). In addition, in
App. 40
this case, the training materials cited by Plaintiffs generally refer to the risk of positional asphyxiation when
a suspect is restrained in a chest/stomach down position with officers placing their body weight on top of
that suspect. Therefore, despite Plaintiffs’ arguments
to the contrary, the Individual Defendants’ training on
positional asphyxiation does not deprive them of qualified immunity.
The Court concludes that Plaintiffs have failed
to carry their burden of demonstrating that the constitutional right at issue was clearly established such
that a reasonable law enforcement officer would have
known that his challenged conduct was unlawful. Therefore, the Court concludes that, under the second step of
the Saucier qualified immunity analysis, a reasonable
officer in the Individual Defendants’ position would
not have known that their actions in applying the
second and third hobble to Slater violated a clearly
established right. Accordingly, Defendant’s Motion is
GRANTED with respect to Plaintiff ’s Fourth Amendment claim alleged in the second cause of action.6
6
The Court sympathizes with Plaintiffs’ terrible loss. However, the Supreme Court has directed lower federal courts to apply qualified immunity broadly to protect from civil liability all
officers except “the plainly incompetent or those who knowingly
violate the law.” Malley, 475 U.S. at 341. Moreover, Plaintiffs will
have the opportunity to pursue their state law claims in state
court.
App. 41
B. The Individual Defendants Are Entitled
to Summary Judgment on Plaintiffs’ Violation of Plaintiffs’ Rights to Familial
Relationship Claim.
In their fourth cause of action, Plaintiffs allege
that the Individual Defendants interfered with their
right under the Due Process Clause of the Fourteenth
Amendment to a familial relationship with Slater because Slater’s death was proximately caused by the Individual Defendants’ use of excessive force in violation
of the Fourth Amendment.
The Fourteenth Amendment’s substantive due
process clause protects against the arbitrary or oppressive exercise of government power. See County of Sacramento v. Lewis, 523 U.S. 833 (1998). Parents and
children may assert Fourteenth Amendment substantive due process claims if they are deprived of their liberty interest in the companionship and society of their
child or parent through official conduct. See Lemire v.
Cal. Dept. of Corrections & Rehabilitation, 726 F.3d
1062, 1075 (9th Cir. 2013).
In this case, for the same reasons the Individual
Defendants are entitled to summary judgment in their
favor on Plaintiffs’ Fourth Amendment claim alleged
the second cause of action, they are entitled to summary judgment on Plaintiffs’ Fourteenth Amendment
claim alleged in the fourth cause of action. See, e.g.,
Dean v. City of Fresno, 546 F.Supp. 2d 798, 817 (holding that “for the same reasons that Borrego and Davis
are entitled to qualified immunity for the Fourteenth
App. 42
Amendment medical care claim, Borrego and Davis
are entitled to qualified immunity for Plaintiffs’ Fourteenth Amendment familial relationships claim”).
Accordingly, Defendants’ Motion is GRANTED
with respect to Plaintiffs’ Fourteenth Amendment
claim alleged in the fourth cause of action.
C. Plaintiffs’ State Law Claims Are Dismissed.
“The district court may decline to exercise supplemental jurisdiction over a claim . . . if the district court
has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C. § 1367(c). “[A] federal court
should consider and weigh in each case, and at every
stage of the litigation, the values of judicial economy,
convenience, fairness, and comity in order to decide
whether to exercise jurisdiction over a case brought
in that court involving pendent state-law claims.”
Carnegie–Mellon University v. Cohill, 484 U.S. 343, 350
(1988). “ ‘[I]n the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction
doctrine – judicial economy, convenience, fairness, and
comity – will point toward declining to exercise jurisdiction over the remaining state law claims.’ ” Satey v.
JPMorgan Chase & Co., 521 F.3d 1087, 1091 (9th Cir.
2008) (quoting Carnegie–Mellon Univ. v. Cohill, 484
U.S. 343, 351 (1988)).
In light of the fact that the Court has granted
summary judgment on the only claims over which this
App. 43
Court has original jurisdiction, and after considering
judicial economy, convenience, fairness, and comity, the
Court declines to exercise supplemental jurisdiction
over Plaintiffs’ state law claims. Indeed, although
Plaintiffs’ state and federal law claims are based on
similar facts and theories, their state law claims cannot be easily or summarily disposed of based on the
Court’s ruling on the federal claims, especially because
qualified immunity is not applicable to the state law
claims. In addition, the state law claims have unique
elements and involve complex issues, which are more
appropriately resolved by the state court. “Needless
decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of
applicable law.” United Mine Workers of Am. v. Gibbs,
383 U.S. 715, 726 (1966). Accordingly, the balance of
factors strongly point toward declining to exercise jurisdiction over the remaining state law claims, and
Plaintiffs’ fifth cause of action for wrongful death by
negligence in force and restraint and sixth cause of action for assault and battery – survival claim are DISMISSED without prejudice.
IV. Conclusion
For all the foregoing reasons and for all the reasons
stated at the hearing on September 11, 2017, Defendants’ Motion for Summary Judgment is GRANTED with
respect to Plaintiffs’ second cause of action and Plaintiffs’ fourth cause of action. In addition, Plaintiffs’ fifth
cause of action for wrongful death by negligence in
App. 44
force and restraint and sixth cause of action for assault
and battery – survival claim are DISMISSED without prejudice. Defendants’ Motion to Exclude Re:
O’Hallaron and Motion to Exclude Re: Clark are DENIED as moot.
The parties are ordered to meet and confer and
agree on a joint proposed Judgment which is consistent
with this Order and the Court’s rulings at the September 11, 2017 hearing. The parties shall lodge the joint
proposed Judgment with the Court on or before September 29, 2017. In the unlikely event that counsel
are unable to agree upon a joint proposed Judgment,
the parties shall each submit separate versions of a
proposed Judgment along with a Joint Statement setting forth their respective positions no later than September 29, 2017.
IT IS SO ORDERED.
App. 45
UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA
DANIELLA SLATER AND Case No.
DAMIEN SLATER, indi- 5:16-CV-01103-JFW-KK
vidually and as successors [Hon. John F. Walter]
in interest, by and through
their Guardian ad Litem JUDGMENT IN FAVOR
OF DEFENDANTS
Sandra Salazar; TINA
COUNTY OF SAN BERSLATER AND DAVID
BOUCHARD, individually; NARDINO, SHANNON
DEASEY, PETER
Plaintiffs,
GENTRY, GARY BRANDT,
DEPUTY SHANDON
AND MICHAEL RUDE
DEASEY; DEPUTY
(Filed Oct. 11, 2017)
PETER GENTRY; DEPUTY
GARY BRANDT; SGT. MIKE
RUDE; COUNTY OF SAN
BERNARDINO; and DOES
1-10, INCLUSIVE.
Defendants.
The Motion for Summary Judgment by Defendants County of San Bernardino, Shannon Deasey (erroneously named Shandon Deasey), Peter Gentry, Gary
Brandt, and Michael Rude came on regularly for hearing on September 11, 2017, before this Court. The
following appearances were made by the parties: on behalf of Defendants, Attorney Tony M. Sain, Esq. and on
behalf of Plaintiffs, Dale K. Galipo, Esq.
Following oral argument on September 11, 2017,
the Court granted Defendants’ Motion for Summary
Judgment as to plaintiffs’ first claim for Unreasonable
App. 46
seizure-detention (42 U.S.C. § 1983), and plaintiffs’
third claim for Deliberate Indifference to Decedent’s
Medical Needs (42 U.S.C. § 1983) in part. As to plaintiffs’ first claim, the Court determined that that there
was no triable issue of material fact that there was reasonable suspicion for Deputy Deasey to detain Slater
and that the detention was lawful. As to plaintiffs’
third claim, the Court determined that there was no
triable issue of material fact that defendants promptly
summoned medical aid for Slater and were not deliberately indifferent to Slater’s medical needs. The Court
then took the remaining portion of Defendants’ Motion
for Summary Judgment under submission pending
supplemental briefing by the parties.
After considering the moving, opposing, reply, and
supplemental papers, and having heard the arguments
of counsel, this Court, for the reasons set forth by this
Court in its written orders [Doc. #161, 195] and during
the September 11, 2017 hearing:
(a) Granted Defendants’ Motion for Summary
Judgment as to Plaintiffs’ federal claims
as follows:
(1) Unreasonable seizure – detention
(42 U.S.C. § 1983) against Defendants
Deasey, Gentry, Brandt, and Rude;
(2) Excessive force (42 U.S.C. § 1983)
against Defendants Deasey, Gentry,
Brandt, and Rude;
(3) Deliberate Indifference to Decedent’s
Medical Needs (42 U.S.C. § 1983)
App. 47
against Defendants Deasey, Gentry,
Brandt, and Rude;
(4) Violation of Plaintiffs’ Rights to Familial Relationship (42 U.S.C. § 1983)
against Defendants Deasey, Gentry,
Brandt, and Rude;
(b) Declined to exercise supplemental jurisdiction over Plaintiffs’ state law claims as
follows:
(1) Wrongful death by negligence in force
and restraint against Defendants
Deasey, Gentry, Brandt, and Rude,
and Defendant Count of San Bernardino on a vicarious liability basis;
(2) Assault and battery against Defendants Deasey, Gentry, Brandt, and Rude,
and Defendant County of San Bernardino on a vicarious liability basis.
Therefore, judgment is hereby entered in Defendants’ favor on the above-referenced federal claims.
Plaintiffs’ above-referenced state claims are dismissed
without prejudice to refiling them in state court.
IT IS SO ORDERED.
Dated: October 11, 2017
/s/ John F. Walter
Honorable John F. Walter
United States District
Court Judge
Central District of California
App. 48
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIELLA SLATER; DAMIEN SLATER,
individually and as successors
in interest, by and through
their Guardian ad Litem
Sandra Salazar; TINA SLATER;
DAVID BOUCHARD, individually,
No. 17-56708
D.C. No.
5:16-cv-01103JFW-KK
Plaintiffs-Appellants,
v.
SHANNON DEASEY, Deputy;
previously erroneously named
as Shandon Deasey; PETER
GENTRY, Deputy; GARY BRANDT,
Deputy; MIKE RUDE, Sgt.;
COUNTY OF SAN BERNARDINO;
DOES, 1-10, Inclusive,
Defendants-Appellees,
DANIELLA SLATER; DAMIEN SLATER,
individually and as successors
in interest, by and through
their Guardian ad Litem
Sandra Salazar; TINA SLATER;
DAVID BOUCHARD, individually,
Plaintiffs-Appellees,
v.
No. 17-56751
D.C. No.
5:16-cv-01103JFW-KK
App. 49
SHANNON DEASEY, Deputy;
previously erroneously named
as Shandon Deasey; PETER
GENTRY, Deputy; GARY BRANDT,
Deputy; MIKE RUDE, Sgt.;
COUNTY OF SAN BERNARDINO,
Defendants-Appellants.
Filed December 3, 2019
Before: Jacqueline H. Nguyen and John B. Owens,
Circuit Judges, and John Antoon II,* District Judge.
Order;
Dissent by Judge Collins
ORDER
The panel voted to deny Defendants’ petition for
panel rehearing. Judges Nguyen and Owens voted, and
Judge Antoon recommended, to deny Defendants’ petition for rehearing en banc.
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether
to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active
judges in favor of en banc consideration. See Fed. R.
App. P. 35.
* The Honorable John Antoon II, United States District Judge
for the Middle District of Florida, sitting by designation.
App. 50
The petition for panel rehearing and the petition
for rehearing en banc are denied. No future petitions
for rehearing or rehearing en banc will be entertained.
COLLINS, Circuit Judge, with whom BEA, IKUTA,
and BRESS, Circuit Judges, join, dissenting from the
denial of rehearing en banc:
In holding that the police officers in this case violated clearly established law when they restrained
Joseph Slater in the back of a patrol car, allegedly causing his death, the panel continues this court’s troubling
pattern of ignoring the Supreme Court’s controlling
precedent concerning qualified immunity in Fourth
Amendment cases. Indeed, over just the last ten years
alone, the Court has reversed our denials of qualified
immunity in Fourth Amendment cases at least a halfdozen times, often summarily. By repeating—if not
outdoing—the same patent errors that have drawn
such repeated rebukes from the high Court, the panel
here once again invites summary reversal. I respectfully dissent from our failure to rehear this case en
banc.
Two particular features of the panel’s decision underscore its neglect of binding Supreme Court authority. First, in addressing whether the relevant law was
“clearly established,” the panel disregarded the Court’s
clear instruction that, in Fourth Amendment excessive
force cases, “police officers are entitled to qualified immunity unless existing precedent ‘squarely governs’
the specific facts at issue.” Kisela v. Hughes, 138 S. Ct.
App. 51
1148, 1153 (2018) (citation omitted) (emphasis added).
There is no such squarely governing precedent here,
and the panel did not claim there was. Instead, the
panel simply ignored Kisela (and all of our other recent
reversals in Fourth Amendment qualified immunity
cases) and denied qualified immunity based on its identification of a single Ninth Circuit decision—Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d
1052 (9th Cir. 2003)—that the panel concluded was
“sufficiently analogous” to this case. See Slater v. Deasey,
Mem. Dispo. at 7 (amending 776 F. App’x 942 (9th Cir.
2019)). In applying this lesser “sufficiently analogous”
standard, the panel committed the very same error for
which we were summarily reversed in Kisela. See 138
S. Ct. at 1151 (Ninth Circuit had denied qualified immunity “because of Circuit precedent that the court
perceived to be analogous”).
Second, the panel violated governing Supreme
Court authority when it extracted from Drummond a
“clearly established” rule that is framed at a much
higher level of generality than Drummond itself. As
the Supreme Court has stated, with evident exasperation, “[w]e have repeatedly told courts—and the Ninth
Circuit in particular—not to define clearly established
law at a high level of generality.” City & Cty. of San
Francisco v. Sheehan, 135 S. Ct. 1765, 1775-76 (2015)
(citations and internal quotation marks omitted). Despite professing to “ ‘hear the Supreme Court loud and
clear,’ ” Slater, Mem. Dispo. at 6 (citation omitted), the
panel is jurisprudentially a bit deaf, because its decision here significantly raised the level of generality of
App. 52
the rule in Drummond, and in doing so, it overlooked
critical differences between Drummond and this case.
The Plaintiffs’ claim in this tragic case is that, by
using “hobbles” (a form of restraining belt) to prevent
Slater from moving around in the patrol car, and by
applying brief incidental pressure to Slater while applying the hobbles, the officers caused him to suffer
“positional or restraint asphyxia,” resulting in his death.
According to the panel, the officers were not entitled
to qualified immunity for these actions because “[i]n
Drummond, we clearly established that ‘squeezing the
breath from a compliant, prone, and handcuffed individual . . . involves a degree of force that is greater
than reasonable.’ ” Slater, Mem. Dispo. at 6 (quoting
Drummond, 343 F.3d at 1059) (ellipses in original). But
this statement literally elides critical differences between this case and Drummond by improperly using
ellipses to generalize Drummond’s much more specific
holding that “any reasonable person” should have known
that “squeezing the breath from a compliant, prone,
and handcuffed individual despite his pleas for air involves a degree of force that is greater than reasonable.” 343 F.3d at 1059 (emphasis added). That critical
feature of Drummond is missing here: in this case, once
the officers noticed that Slater appeared to be in trouble, they promptly summoned paramedics (who had
examined Slater earlier and were still on the scene).
Moreover, Drummond differs in a second crucial respect, inasmuch as the nature and extent of the force
applied by the officers in the two cases are very different. While the two officers in Drummond literally
App. 53
“squeez[ed] the breath” from Drummond by “press[ing]
their weight against his torso and neck, crushing him
against the ground” for a “substantial period of time,”
343 F.3d at 1059-60 & n.7, the specific challenged
actions of the officers here did not involve any such
direct, sustained compression with the officers’ body
weight. Instead, Plaintiffs claim that the manner in
which the hobbles were applied put Slater in a position
such that, coupled with the brief incidental pressure
placed on his back during securing of the hobbles, he
was at risk of “positional or restraint asphyxia.” Given
these significant distinctions, Drummond cannot be
described as “ ‘squarely govern[ing]’ the specific facts
at issue.” Kisela, 138 S. Ct. at 1153 (citation omitted).
Under the qualified immunity standards that
have been clearly established by the Supreme Court,
the district court’s dismissal of this action should have
been affirmed. I dissent from our failure to rehear this
case en banc.
I
Because Fourth Amendment excessive force claims
“depend[ ] very much on the facts of each case,” Mullenix v. Luna, 136 S. Ct. 305, 309 (2015) (citation and
internal quotation marks omitted), it is important to
review in some detail the specific alleged actions of the
officers that are challenged in this § 1983 suit.
App. 54
A
On April 15, 2015, sometime around 1:00 AM, Deputy Sheriff Shannon Deasey of the County of San Bernardino Sheriff ’s Department responded to a radio call
that a man was pulling out wires from a Valero gas station building in Highland, California.1 After Deasey arrived at the Valero station, he saw a man who fit the
radioed description crouched down near the front of
the gas station. Deasey immediately recognized the
man as Slater. Deasey personally knew, from multiple
prior encounters, that Slater had a history of mental
illness and drug use.
Deasey identified himself to Slater and asked him
what he was doing, but Slater would not respond and
instead appeared “mesmerized” by a nearby electronic
display screen. Deasey handcuffed Slater without resistance and, after walking Slater over to the police car,
Deasey opened the door and asked him to sit down.
Slater sat down sideways, with his feet outside the vehicle, but he resisted placing his feet in the car. Slater
became paranoid, repeatedly denying that Deasey was
a cop and saying that he believed Deasey was going
to kill him. When Slater refused Deasey’s repeated
commands to slide into the car, Deasey threatened
to use pepper spray on Slater, and then twice did so.
1
Because much of the incident was captured on the Valero
station’s cameras, and parts were also audio recorded on Deasey’s
belt recorder, many of the core facts of the incident are undisputed. Where the parties’ inferences from the video and audio evidence or deposition testimony differ, I have relied on Plaintiffs’
version. See Tolan v. Cotton, 572 U.S. 650, 651 (2014).
App. 55
Ultimately, Deasey could not restrain Slater, and he
pulled him out of the car. Deasey instead attempted to
restrain Slater on the ground, and he again used his
pepper spray. Deasey then used a “knee strike” to get
Slater to stop resisting; the parties dispute whether
the knee strike was on Slater’s lower back or his buttocks/thigh area. Deasey radioed for backup, and he
also asked for a medical unit.
Deputy Pete Gentry arrived next on the scene, and
he saw Slater on the ground moving his feet back and
forth while Deasey attempted to restrain him. Gentry
suggested that Deasey get a “hobble,” a form of belt
used in restraining detainees, and Gentry grabbed
hold of Slater while Deasey went to retrieve a hobble
from his vehicle. When Deasey returned, Gentry ultimately shifted positions and ended up with his knee
across Slater’s shoulderblades for about 40 seconds,
while Slater was on his stomach on the ground. After
Gentry removed his knee from Slater’s back, Slater lay
on the ground on his right side.
Sergeant Mike Rude arrived next, and he assisted
Deasey in placing the hobble on Slater’s legs. Once the
hobble was applied, the three officers stepped back,
and Slater was able to sit upright on the ground. Slater
continued in that position until paramedics arrived from
the California Fire Department (“Cal Fire”). Throughout this time, Slater continued to talk irrationally, saying names or numbers seemingly at random. Deputy
Gary Brandt then arrived, and he waited with the
other officers and Slater.
App. 56
The Cal Fire paramedics examined Slater and
concluded that there was no medical emergency. Gentry and Rude then carried Slater over to the gas station’s air and water area, with Brandt following along,
and they attempted to wash the pepper spray off Slater.
After attempting to wash Slater, Brandt and Gentry
carried Slater back to Deasey’s vehicle, whose driver
side rear door was still open. They then attempted to
place Slater headfirst and chest down into the vehicle,
and as they did so, Slater was flailing about. Meanwhile, Rude went around to the other side of the vehicle, opened the rear passenger door, and attempted to
pull Slater by his shirt while Brandt and Gentry
pushed him in from the driver side. Slater lay on his
stomach for a few seconds and then moved himself into
an upright seated position, where he continued moving
about and speaking irrationally. During this time, an
ambulance had also arrived, but after the ambulance
personnel briefly communicated with the Cal Fire paramedics, the Cal Fire personnel told them that they
could leave.
Gentry and Brandt attempted to put the vehicle’s
seat belt on Slater, with Gentry leaning in through the
rear passenger door, and Brandt leaning in through
the opposite door and handing Gentry the seat belt.
Slater leaned away from Gentry, but Gentry pulled
him back up, and Brandt closed the rear driver side
door. Slater, who was still not seatbelted, slid halfway
out of the open passenger side door, so that his body
from the waist up was outside the passenger side and
his head was almost touching the ground. Gentry and
App. 57
Brandt then placed Slater back into the car, face down,
with his head now pointing towards the driver side.
Slater continued moving in the back of the car, although the parties dispute how much he was moving
about.
Gentry suggested applying another hobble, and
Brandt retrieved one and gave it to Gentry. Gentry
opened the driver side rear door, put his left foot on the
rear floor of the car, leaned over Slater (who was chest
down with his head toward the driver side), and then
applied the hobble to Slater’s ankles. Gentry then
passed part of the second hobble through the cage area
that separated the back seat from the front seat, and
Deasey, who was leaning through the now open driver
side front door, took hold of it. Gentry then stepped out
of the vehicle. During the time that Gentry applied
this second hobble, his right knee applied pressure to
Slater’s left rib area for up to 45 seconds. After grabbing the second hobble in the front driver area, Deasey
realized that it was too short to attach to the front
driver seat hook. So Deasey attached a third hobble to
the second one and looped the third hobble to the back
of the car and through the open driver side rear door,
which he then shut closed on the hobble. During most
of the time that Gentry and Deasey were securing the
second and third hobbles, Brandt, who was standing
outside near the open driver side rear door, had his
right foot against Slater’s left shoulder. Brandt claimed
that he did this in order to prevent Slater from sliding
himself out of the patrol car. Brandt’s right foot was
against Slater’s left shoulder for about 70 seconds. The
App. 58
entire process for securing the second and third hobbles took about 86 seconds.
After the second and third hobbles were secured,
Slater lay mostly on his stomach on the backseat of the
patrol car, with his legs drawn up behind him towards
his buttocks. Slater had little, if any, ability to move his
legs.
Brandt heard Slater make a spitting noise just before the driver side rear door was closed. After about
40 seconds, the officers noticed that Slater was no
longer moving, had stopped speaking, and might have
stopped breathing. The officers also noticed that Slater
had vomited a small amount. Gentry opened the driver
side rear door and unsuccessfully attempted to get
Slater to respond. Slater was removed from the car,
and the Cal Fire paramedics attempted to resuscitate
him. Slater was transported to the hospital where he
was pronounced dead.
The pathologist who performed the autopsy of
Slater concluded that he had died of “acute methamphetamine intoxication.”
B
Plaintiffs, who are Slater’s surviving relatives,
brought this suit against Defendants Deasey, Gentry,
Brandt, and Rude (“Defendants”), asserting a variety
of claims under 42 U.S.C. § 1983 and under state law.2
2
The County was named as an additional defendant only in
the state law claims.
App. 59
After discovery was completed, Defendants moved for
summary judgment. With respect to Plaintiffs’ § 1983
claim of excessive force, Defendants argued that (1) each
application of force against Slater was reasonable;
(2) alternatively, Defendants were entitled to qualified
immunity as to any force that may have been excessive; and (3) there was insufficient admissible evidence
to establish that Defendants’ application of force
caused Slater’s death. In connection with the latter argument, Defendants submitted the report and deposition testimony of the pathologist who performed the
autopsy of Slater, and they also filed a Daubert motion
to exclude the testimony of Plaintiffs’ causation expert.
Plaintiffs opposed both the summary judgment
motion and the Daubert motion. On the causation issue, Plaintiffs contended that there was sufficient evidence to permit a reasonable jury to conclude that
“positional or restraint asphyxia” was the cause of
Slater’s death. In support of this contention, Plaintiffs
supplied the declaration of their causation expert, who
explained his opinion as to the cause of death as follows:
In Mr. Slater’s case, respiratory compromise,
vomiting with aspiration of vomit into Mr.
Slater’s airway, and loss of consciousness happened within seconds of the final hobbles being attached and pulled tight. The prone and
hobbled position Mr. Slater was in compromised his ability to breathe, compressed his
abdomen and chest, and led to his vomiting
and aspirating the vomit into his lungs. This
App. 60
prevented sufficient breathing, leading to loss
of consciousness and resulting in death.
...
It is well accepted that inhibition of respiration and/or inhibition of blood flow caused by
too much weight on the back for too long can
cause asphyxia. The probable trigger for Mr.
Slater’s vomiting and ultimately for his asphyxial death was likely the effects of the way
he was restrained prone, hogtied, and compressed even more by the pressure on his back
by two deputies. Even more pressure was applied to Slater’s abdomen and chest by his legs
being drawn upward and back towards his
buttocks with the addition of more hobbles
and the improvised technique used to increase the tension on the 2nd and 3rd hobbles.
This transferred more of the weight of his legs
to his abdomen and chest, the fulcrum for his
body weight in his prone position in the car.
Plaintiffs’ expert also explained why he ruled out methamphetamine overdose as the cause of death.
After a hearing on the motions and supplemental
briefing, the district court granted summary judgment
to Defendants. The court first held that, viewing the
evidence in the light most favorable to the Plaintiffs,
“Deasey’s use of pepper spray, Deasey’s knee strike to
Slater, and the application of the first hobble (including
any force that may have been used by the deputies in
applying that hobble) were reasonable and did not violate Slater’s Fourth Amendment rights.” As to the second and third hobbles, the court held that a reasonable
App. 61
jury could find that the force used was excessive. The
court nonetheless granted summary judgment based
on qualified immunity, holding that “Plaintiffs have
failed to carry their burden of demonstrating that the
constitutional right at issue was clearly established
such that a reasonable law enforcement officer would
have known that his challenged conduct was unlawful.” The court dismissed the pendent state law claims
without prejudice, and it denied as moot the Daubert
motion concerning Plaintiffs’ causation expert.
C
A panel of this court affirmed in part and reversed
in part. The panel affirmed the district court’s conclusion that, as a matter of law, the application of the first
hobble did not constitute excessive force. Slater, Mem.
Dispo. at 3. As to the second and third hobbles, the
panel agreed that a reasonable jury could find the force
to be excessive, but the panel reversed the grant of
summary judgment based on qualified immunity. Id.
at 4-7. According to the panel, this court’s decision in
Drummond ex rel. Drummond v. City of Anaheim, 343
F.3d 1052 (9th Cir. 2003), was “sufficiently analogous”
to put Defendants “on notice that their use of force violated the Fourth Amendment.” Slater, Mem. Dispo. at
7. In light of this ruling, the panel vacated the dismissal of the state law claims and one additional claim, id.
at 7 & n.4, and remanded the case “for trial,” id. at 2.
App. 62
II
By failing to apply—and in some respects even to
mention—the controlling standards that govern the
qualified immunity inquiry under the Supreme Court’s
and this court’s recent precedent, the panel’s decision
warrants en banc review. See Fed. R. App. P. 35(b)(1)(A)
(en banc review is warranted when “the panel decision
conflicts with a decision of the United States Supreme
Court or of th[is] court”). Had those standards been applied, the panel would have had no choice but to affirm
the district court’s holding that the officers were entitled to qualified immunity.
A
Although the Supreme Court has issued numerous opinions over the last ten years that have refined
and limited what it means to say that a right was
“clearly established” for qualified immunity purposes,
the panel largely ignored that case law. Instead, quoting from a 2003 decision of this court, the panel relied
primarily on a more general proposition that qualified
immunity turns on:
“whether the right was clearly established in
light of the specific context of the case” such
that “it would be clear to a reasonable officer
that his conduct was unlawful in the situation
he confronted.”
Slater, Mem. Dispo. at 5 (quoting Drummond, 343 F.3d
at 1056 (further citation and internal quotation marks
omitted)). Applying that more general standard, the
App. 63
panel held that qualified immunity was inapplicable
because “the circumstances here are sufficiently analogous to Drummond such that Defendants were on
notice that their use of force violated the Fourth
Amendment.” Slater, Mem. Dispo. at 7. The panel’s
analysis disregards the relevant qualified immunity
standards as more specifically articulated in the Supreme Court’s recent case law.
Since our 2003 opinion in Drummond, the Supreme Court has issued no less than eight opinions
reversing this court’s denial of qualified immunity in
Fourth Amendment cases—four of which were summary reversals. City of Escondido v. Emmons, 139
S. Ct. 500 (2019) (summarily reversing); Kisela v. Hughes,
138 S. Ct. 1148 (2018) (summarily reversing); City &
Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765 (2015);
Stanton v. Sims, 571 U.S. 3 (2013) (summarily reversing); Messerschmidt v. Millender, 565 U.S. 535 (2012);
Ashcroft v. al-Kidd, 563 U.S. 731 (2011); Safford Unified School Dist. No. 1 v. Redding, 557 U.S. 364 (2009);
Brosseau v. Haugen, 543 U.S. 194 (2004) (summarily
reversing). During that same time period, the Court
has issued six more opinions reversing the other circuit courts’ denial of qualified immunity in Fourth
Amendment cases, and three of those were summary
reversals. District of Columbia v. Wesby, 138 S. Ct. 577
(2018); White v. Pauly, 137 S. Ct. 548 (2017) (summarily reversing); Mullenix v. Luna, 136 S. Ct. 305 (2015)
(summarily reversing); Carroll v. Carman, 574 U.S. 13
(2014) (summarily reversing); Plumhoff v. Rickard, 572
U.S. 765 (2014); Pearson v. Callahan, 555 U.S. 223
App. 64
(2009). Given that the Supreme Court has thus issued
a total of 14 opinions since 2003 reversing the circuit
courts’ denials of qualified immunity in Fourth Amendment cases, including seven summary reversals, the
panel clearly erred when it disregarded much of what
the Court said in those cases. This recent Supreme
Court precedent has reiterated two important and
closely related rules, and the panel violated both of
them in its decision.
The first of these rules is the more general principle—applicable to all qualified immunity cases—“that
clearly established law should not be defined at a high
level of generality.” White, 137 S. Ct. at 552 (citation
and internal quotation marks omitted). Because an
officer is entitled to qualified immunity unless thenexisting precedent “clearly prohibit[s] the officer’s conduct in the particular circumstances before him,” Wesby,
138 S. Ct. at 590 (emphasis added), “general proposition[s]” are “of little help in determining whether the
violative nature of particular conduct is clearly established,” al-Kidd, 563 U.S. at 742; see also Plumhoff, 572
U.S. at 779 (more generally phrased propositions do
not defeat qualified immunity because they “avoid[ ]
the crucial question whether the official acted reasonably in the particular circumstances that he or she
faced”). If it were permissible to generalize beyond the
specific points established in the existing precedent,
“ ‘[p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely
abstract rights.’ ” White, 137 S. Ct. at 552 (citation
App. 65
omitted). This court has nonetheless routinely strayed
from this rule, prompting the Supreme Court to admonish that it has “ ‘repeatedly told courts—and the
Ninth Circuit in particular—not to define clearly established law at a high level of generality.’ ” Sheehan,
135 S. Ct. at 1775-76 (citation omitted). In its amended
memorandum disposition, the panel now at least pays
lip service to this rule by quoting White’s recitation of
it, see Slater, Mem. Dispo. at 6, but the panel then still
proceeds to flout that rule by relying on higher-level
generalizations when defining the relevant clearly established law. See infra at 19-25.
The second rule that emerges from the Supreme
Court’s recent case law is a close corollary of the first,
and it underscores the especially heightened need for
specificity in the context of a Fourth Amendment excessive force case. Mullenix, 136 S. Ct. at 308. Because
“[u]se of excessive force is an area of the law ‘in which
the result depends very much on the facts of each case,’
. . . police officers are entitled to qualified immunity
unless existing precedent ‘squarely governs’ the specific
facts at issue.” Kisela, 138 S. Ct. at 1153 (quoting Mullenix, 136 S. Ct. at 309) (emphasis added). As this court
recently emphasized in a published decision concerning qualified immunity in the Fourth Amendment context, “we must locate a controlling case that ‘squarely
governs the specific facts at issue,’ except in the ‘rare
obvious case’ in which a general legal principle makes
the unlawfulness of the officer’s conduct clear despite
a lack of precedent addressing similar circumstances.”
App. 66
West v. City of Caldwell, 931 F.3d 978, 983 (9th Cir.
2019) (citation omitted).
The panel does not contend (and, as the discussion
below makes clear, could not contend) that this is the
“rare obvious case” in which the general legal principles governing excessive force would have been sufficient to alert “every reasonable officer” that applying a
further hobble to Slater would violate the Constitution.
Wesby, 138 S. Ct. at 590-92. Accordingly, the panel was
required to identify “existing precedent” that “ ‘squarely
governs’ the specific facts at issue.” Kisela, 138 S. Ct.
at 1153 (quoting Mullenix, 136 S. Ct. at 309); see also
West, 931 F.3d at 983. The panel, however, did not even
recite that demanding standard, much less apply it. Instead, the panel held that the officers here were not
entitled to qualified immunity because (in the panel’s
view) this court’s decision in Drummond was “sufficiently analogous” to this case to put Defendants
“on notice that their use of force violated the Fourth
Amendment.” Slater, Mem. Dispo. at 7. This watereddown “sufficiently analogous” test more closely resembles the standard that we applied in Kisela and that
earned us a summary reversal by the Supreme Court.
See 138 S. Ct. at 1151. Moreover, as set forth below, the
panel’s effort to stretch Drummond to cover the facts
of this case violates both the Court’s repeated admonition not to resort to higher levels of generality
and the Court’s insistence on identifying a controlling
precedent that squarely governs the specific facts at
issue.
App. 67
B
In contending that Drummond was alone sufficient to defeat qualified immunity, the panel ignored
two significant differences between Drummond and
this case.
1
First, the panel misstated the specific holding of
Drummond and, in doing so, it improperly raised the
level of generality of the rule established in that case.
According to the panel, Drummond “clearly established that ‘squeezing the breath from a compliant,
prone, and handcuffed individual . . . involves a degree
of force that is greater than reasonable.’ ” Slater, Mem.
Dispo. at 6 (quoting Drummond, 343 F.3d at 1059)
(ellipses added by panel). The problem with this contention is that the panel’s quotation improperly used
ellipses to edit out a crucial fact that makes clear that
Drummond is not analogous to this case. The actual
quoted language from Drummond is as follows, and it
includes the additional italicized phrase:
The officers—indeed, any reasonable person
—should have known that squeezing the breath
from a compliant, prone, and handcuffed individual despite his pleas for air involves a degree of force that is greater than reasonable.
343 F.3d at 1059 (emphasis added). The language omitted by the panel was not an irrelevant or insignificant
detail; on the contrary, the Drummond court repeatedly emphasized this important factor in finding that
App. 68
the officers in that case were not entitled to qualified immunity. See id. at 1061 (“The officers allegedly
crushed Drummond against the ground by pressing
their weight on his neck and torso, and continuing to
do so despite his repeated cries for air, and despite the
fact that his hands were cuffed behind his back and
he was offering no resistance. Any reasonable officer
should have known that such conduct constituted the
use of excessive force”) (emphasis added); id. at 1062
(“We need no federal case directly on point to establish
that kneeling on the back and neck of a compliant detainee, and pressing the weight of two officers’ bodies
on him even after he complained that he was choking
and in need of air violates clearly established law, and
that reasonable officers would have been aware that
such was the case.”) (emphasis added). On top of this
express language from Drummond itself, common sense
confirms that there is an obvious difference between
continuing to apply substantial force while disregarding explicit cries for air and applying force to a detainee without any such protest (and therefore without
any such equivalent disregard of actual “notice of the
detainee’s respiratory distress”). Id. at 1060 n.7.
In view of this critical factor, Drummond cannot
be characterized as a “controlling case that squarely
governs the specific facts at issue.” West, 931 F.3d at
983 (citations and internal quotation marks omitted);
see also Kisela, 138 S. Ct. at 1153. Here, the first indications that Slater might be struggling to breathe were
his spitting noises and vomiting, see Slater, Mem.
Dispo. at 7, but these acts were first observed after
App. 69
Slater was restrained, and the officers did not ignore
them. The spitting noise occurred just before the driver
side rear door was closed after the application of the
third hobble—meaning that it occurred after the officers had completed their actions in applying force to
Slater. Likewise, the vomiting was noticed through the
window after the rear door had been closed and before
the officers promptly reopened it to check on Slater.
When the officers confirmed that he was in distress,
Slater was immediately attended to by the Cal Fire
paramedics who were still on the scene. By promptly
responding to the first indication that Slater was in
distress, and calling over medical assistance, the officers here did the opposite of the officers in Drummond,
who instead ignored the detainee’s pleas for air and
continued pressing on his body with the full weight of
two officers. 343 F.3d at 1059, 1061-62.
This crucial difference—that, unlike in this case,
the officers in Drummond continued to apply force despite the detainee’s pleas for air—“ ‘leap[s] from the
page.’ ” Kisela, 138 S. Ct. at 1154 (quoting Sheehan, 135
S. Ct. at 1776). Or, to be more precise, it would have
leapt from the page had the panel not effaced the text.
Moreover, by excising a factor that was crucial to Drummond’s holding, the panel here necessarily raised the
level of generality of the rule established in Drummond, thereby contravening the Supreme Court’s repeated admonition “not to define clearly established
App. 70
law at a high level of generality.” Emmons, 139 S. Ct.
at 503.3
2
Beyond that, there is a second respect in which
Drummond differs critically from this case. As Drummond itself emphasized, the force applied there involved
“two officers leaning their weight on Drummond’s neck
3
The panel points to three out-of-circuit decisions to justify
its disregard of Drummond’s emphasis on the officers’ awareness
of the detainee’s respiratory distress. To the extent that these decisions assertedly found a violation of clearly established law despite the lack of any apparent respiratory distress, but see, e.g.,
McCue v. City of Bangor, 838 F.3d 55, 59 (1st Cir. 2016) (noting
that the defendant officer continued to press his knee on McCue’s
neck “even after McCue twice shout[ed] in distress that the officers are hurting his neck”), they did so only in the context of condemning an officer’s direct application of “significant, continued
force on a person’s back ‘while that [person] is in a face-down
prone position after being subdued and/or incapacitated,’ ” id. at
64 (quoting Weigel v. Broad, 544 F.3d 1143, 1155 (10th Cir. 2008)
(in turn quoting Champion v. Outlook Nashville, Inc., 380 F.3d
893, 903 (6th Cir. 2004) (emphasis added) (further quotation
marks omitted))). Thus, to the extent that these other circuits
might be said to have thereby extended and generalized Drummond’s holding, they have done so in a way that does not cover
this case. See, e.g., Champion, 380 F.3d at 903 (“This is neither a
‘positional asphyxia’ case nor a case in which the officers lightly
touched or placed incidental pressure on Champion’s back while
he was face down”); see generally infra at 19-25. Where, as here,
the officers’ actions do not involve that sort of obviously dangerous
direct application of full body weight to compress the detainee’s
back or neck for a sustained period of time, Drummond confirms
the continued importance of whether “the police were actually put
on notice of the detainee’s respiratory distress.” 343 F.3d at 1060
n.7. The officers here did not ignore any such notice.
App. 71
and torso for a substantial period of time,” creating an
obvious risk of “compression asphyxia.” 343 F.3d at
1059-60 & n.7. Indeed, in holding that the officers
should have been aware of the risks of placing their full
body weight on a detainee, the Drummond court emphasized the well-known and well-publicized risks of
“compression asphyxia” no less than four times in its
opinion. Id. at 1056, 1059, 1061, 1062. By contrast, in
this case, there is no evidence that the officers ever put
their full body weight on Slater during application of
the second and third hobbles, much less that they did
so for a substantial period of time. As noted earlier, at
most, Gentry’s right knee applied pressure to Slater’s
left rib area for up to 45 seconds while Gentry applied
the second hobble, and given that Gentry had his left
leg on the car floor during that whole time, this incidental pressure would not have applied Gentry’s full
body weight to Slater. Likewise, Brandt did not place
his full body weight on Slater, because Brandt was
standing outside the car and extended his right foot
into the car and against Slater’s left shoulder. And
Brandt’s right foot was thus positioned against Slater’s
left shoulder for only about 70 seconds. As the panel
itself elsewhere concedes, the evidence at most shows
that the two officers applied “some pressure” to Slater.
Slater, Mem. Dispo. at 4. The pressure applied by the
two officers with their bodies here was materially different, both in nature and in duration, from that applied in Drummond. This point is underscored by
Drummond itself, which in a footnote distinguished
two cases in which incidental or light pressure was
App. 72
applied to a struggling detainee for less than one minute. See 343 F.3d at 1060 n.7.
To be sure, this case involves not just the alleged
compression from the officer’s knee and foot, but also
the alleged breathing difficulty created by the position
in which the hobbles ultimately put Slater. But this
factor only further underscores how very different this
case is from Drummond and how that decision cannot
reasonably be said to “ ‘squarely govern[ ]’ the specific
facts at issue” here. Kisela, 138 S. Ct. at 1153 (citation
omitted). Indeed, in opposing summary judgment below, Plaintiffs’ theory was not, as in Drummond, a
straightforward case of compression asphyxia; rather,
Plaintiffs contended that the evidence would permit a
reasonable jury to conclude that “positional or restraint asphyxia” was the cause of Slater’s death. As
Plaintiffs’ causation expert explained, “[t]he prone and
hobbled position Mr. Slater was in compromised his
ability to breathe, compressed his abdomen and chest,
and led to his vomiting and aspirating the vomit into
his lungs. This prevented sufficient breathing, leading
to loss of consciousness and resulting in death.” Plaintiffs’ expert also identified the officers’ pressure on
Slater during the application of the second and third
hobbles as an additional factor in Slater’s alleged asphyxia, but only in combination with the asserted
breathing difficulties created by his prone and hobbled
position. Drummond, however, does not address such a
hybrid positional asphyxia theory, and it does not provide a basis for concluding that any reasonable officer
App. 73
would have recognized that Slater’s hobbled position
might cause him to asphyxiate.
The panel’s broadening of Drummond confirms
just how far the panel has departed from the controlling qualified immunity standards. The focus of the
qualified immunity inquiry has to be on the specific actions of the officers, and whether the law clearly established that “the Fourth Amendment prohibited the
officer[s’] conduct in the situation [they] confronted.”
Mullenix, 136 S. Ct. at 309 (citation and internal quotation marks omitted). But the panel’s broadening of
Drummond converts it into a rule about outcomes: if
“asphyxia” results, it does not matter whether it was
caused by the officers’ use of direct “compression” (as
in Drummond) or was caused by a collection of restraints, together with brief incidental compression (as
in this case). However, the relevant question for qualified immunity is not what outcome occurred as a result
of the officers’ actions; the relevant question is what
specific actions did the officers take.
By ignoring all of these obvious differences between Drummond and this case, the panel has effectively applied an unstated but much broader rule that
condemns a set of police restraints that are not covered
by the requisite controlling precedent that “squarely
governs the specific facts at issue.” Kisela, 138 S. Ct. at
1153 (citation and internal quotation marks omitted).
The panel’s reasoning and result cannot be squared
with the Supreme Court’s demanding standards for defeating qualified immunity.
App. 74
III
The panel committed a further, related error in
suggesting that Defendants bear the burden of proof on
the disputed qualified-immunity issues presented in
this appeal.
In reciting the general standards governing qualified immunity, the panel stated that “Defendants bear
the burden of proving they are entitled to qualified immunity. See Moreno v. Baca, 431 F.3d 633, 638 (9th Cir.
2005).” Slater, Mem. Dispo. at 5. But on the cited page,
Moreno merely recites the boilerplate summary judgment point that, “[b]ecause the moving defendant bears
the burden of proof on the issue of qualified immunity,
he or she must produce sufficient evidence to require
the plaintiff to go beyond his or her pleadings.” 431 F.3d
at 638 (emphasis added). That, of course, is not the
relevant burden of proof on the qualified-immunity issues presented in this appeal. Rather, the applicable—
and well-settled—rule is that “[t]he plaintiff bears the
burden of proof that the right allegedly violated was
clearly established at the time of the alleged misconduct.” Romero v. Kitsap Cty., 931 F.2d 624, 627 (9th Cir.
1991) (emphasis added); see also Shafer v. Cty. of Santa
Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017). Other circuits follow the same rule. See, e.g., Callahan v. Unified
Gov’t of Wyandotte Cty., 806 F.3d 1022, 1027 (10th Cir.
2015) (“When a defendant raises the defense of qualified immunity, the plaintiff bears the burden to demonstrate that the defendant violated his constitutional
rights and that the right was clearly established.”);
Findlay v. Lendermon, 722 F.3d 895, 900 (7th Cir. 2013)
App. 75
(plaintiff failed to “carry his burden of showing a
clearly established right” when he failed to identify
precedent showing that “any reasonable officer would
know [the conduct at issue] violated the constitution”).
The panel’s error on this point is significant, because it underscores that Plaintiffs had the burden to
find a controlling precedent that squarely governs the
specific facts of this case. They failed to carry that burden, and the district court’s grant of summary judgment on qualified immunity grounds should have been
affirmed.
I respectfully dissent from the denial of rehearing
en banc.
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