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NOT FOR PUBLICATION FILED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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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