Petition for Writ of Certiorari — Kyle Smith, et al., Petitioners v. Rochelle Scott, Individually, and as Co-Special Administrator of the Estate of Roy Anthony Scott, et al.

Supreme Court briefApr 18, 2025

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No. _________

In the

Supreme Court of the United States

__________________________________________________________

KYLE SMITH; THEODORE HUNTSMAN; LAS VEGAS

METROPOLITAN POLICE DEPARTMENT,

Petitioners,

v.

ROCHELLE SCOTT, individually, and as co-special

administrator of the estate of ROY ANTHONY SCOTT;

FREDRICK WAID, as co-special administrator of the

estate of ROY ANTHONY SCOTT,

Respondents.

__________________________________________________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

__________________________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________________________

CRAIG R. ANDERSON

MARQUIS AURBACH CHTD.

10001 Park Run Drive

Las Vegas, NV 89145

(702) 382-0711

canderson@maclaw.com

MEGAN M. WOLD

Counsel of Record

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

mwold@cooperkirk.com

Counsel for Petitioners

i

QUESTION PRESENTED

In March 2019, the Petitioner police officers

responded to a call from Roy Anthony Scott, a

paranoid

schizophrenic

individual

who

was

hallucinating about armed, would-be intruders

outside

his

apartment.

Scott

also

had

methamphetamine in his system.

During the encounter that followed, which was

captured by the officers’ body-worn cameras, Scott

produced two weapons—a metal pipe and a knife—but

refused to submit to a patdown and refused other

police instructions. The officers attempted to handcuff

Scott for their safety. They used bodyweight pressure

to restrain Scott for no longer than 95 seconds and

immediately moved him to the recovery position once

handcuffing was complete. Scott was conscious and

speaking throughout that process and did not show

signs of respiratory distress. Several minutes later,

Scott experienced medical distress and after a medical

transport, he was pronounced dead.

The Ninth Circuit denied the officers qualified

immunity.

The questions presented are:

1. Viewing the facts from the officers’ perspective

at the time, did the officers act reasonably

under the Fourth Amendment by using

bodyweight pressure to restrain a potentially

armed and actively resisting individual only

until handcuffing could be accomplished?

2. Did the panel err in denying qualified immunity

where no case clearly established that prehandcuffing bodyweight pressure violates the

Fourth Amendment?

ii

PARTIES TO THE PROCEEDING

Petitioners (defendants-appellants below) are

Kyle Smith, Theodore Huntsman, and the Las Vegas Metropolitan Police Department.

Respondents (plaintiffs-appellees below) are

Rochelle Scott, individually and as co-special administrator of the estate of Roy Anthony Scott, and

Fredrick Waid, as co-special administrator of the

estate of Roy Anthony Scott.

iii

RELATED PROCEEDINGS

This case arises from the following proceedings:

Scott, et al. v. Smith, et al., United States

Court of Appeals for the Ninth Circuit,

Case No. 23-15480.

Scott, et al. v. Smith, et al., United States

District Court for the District of Nevada,

Case No. 2:20-cv-01872.

iv

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDING ............................ ii

RELATED PROCEEDINGS ......................................iii

TABLE OF AUTHORITIES ....................................... vi

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..................................................... 1

INTRODUCTION ........................................................ 3

STATEMENT OF THE CASE .................................... 6

A. Factual Background ......................................... 6

B. Proceedings Below .......................................... 14

REASONS FOR GRANTING THE PETITION........ 16

I.

The Officers Acted Reasonably Under the

Circumstances. .......................................... 16

II.

The Ninth Circuit Departed From This

Court’s Precedents In Denying The Officers

Qualified Immunity. .................................. 19

A. The Ninth Circuit Departed from This

Court’s Precedents in Concluding that

the Officers’ Use of Force Was

Unreasonable. ...................................... 19

v

B. The Ninth Circuit Departed from This

Court’s Precedents by Concluding that

Drummond “Clearly Established” that

Applying Bodyweight Pressure to Make

an Arrest Is Unconstitutional.............. 22

III.

The Ninth Circuit’s Errors Deepen A Circuit

Split About The Use Of Pre-Handcuffing

Bodyweight Pressure. ................................ 27

IV.

The Questions Presented Are Critically

Important And This Is An Ideal Vehicle To

Resolve Them............................................. 31

CONCLUSION .......................................................... 33

APPENDIX

Appendix A - Opinion of the United States Court

of Appeals for the Ninth Circuit, Filed

July 30, 2024 .............................................................. 1a

Appendix B - Order of the United States District

Court for the District of Nevada, Filed

March 14, 2023 ........................................................ 26a

Appendix C - Denial of Rehearing of the United

States Court of Appeals for the Ninth Circuit,

Filed November 19, 2024......................................... 73a

vi

TABLE OF AUTHORITIES

CASES

PAGE(S)

Abdullahi v. City of Madison,

423 F.3d 763 (7th Cir. 2005) ........................... 30

Abston v. City of Merced,

506 F. App’x 650 (9th Cir. 2013) .................... 26

Arce v. Blackwell,

294 F. App’x 259 (9th Cir. 2008) .................... 26

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ........................................... 3

Bornstad v. Honey Brook Twp.,

211 F. App’x 118 (3d Cir. 2007) ................ 29, 30

Champion v. Outlook Nashville, Inc.,

380 F.3d 893 (6th Cir. 2004) ........................... 29

City & County of San Francisco v. Sheehan,

575 U.S. 600 (2015) ......................................... 32

Drummond ex rel. v. City of Anaheim,

343 F.3d 1052 (9th Cir. 2003) ........ 4, 14, 22, 23,

24, 25

Est. of Armstrong ex rel. Armstrong v.

Village of Pinehurst,

810 F.3d 892 (4th Cir. 2016) ............... 27, 28, 29

Estate of Booker v. Gomez,

745 F.3d 405 (10th Cir. 2014) ................... 27, 28

Graham v. Connor,

490 U.S. 386 (1989) ............. 4, 16, 17, 18, 19, 31

Kisela v. Hughes,

584 U.S. 100 (2018) ........................................... 5

vii

McCue v. City of Bangor,

838 F.3d 55 (1st Cir. 2016) ............................. 28

Mullenix v. Luna,

577 U.S. 7 (2015) ....................................... 22, 25

Rivas-Villegas v. Cortesluna,

595 U.S. 1 (2021) ........................... 22, 23, 25, 26

Ryburn v. Huff,

565 U.S. 469 (2012) ........................................... 4

Scott v. Harris,

550 U.S. 372 (2007) ......................................... 17

Tucker v. Las Vegas Metropolitan Police Dep’t,

470 F. App’x 627 (9th Cir. 2012) .................... 26

Weigel v. Broad,

544 F.3d 1143 (10th Cir. 2008)....................... 27

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. CONST. amend. IV .......................................... 2, 16

42 U.S.C. § 1983 ...................................................... 1, 2

1

OPINIONS BELOW

The district court’s March 14, 2023, order denying

summary judgment in part is not published but is

available at Scott v. Smith, No. 20-cv-1872-RFB-EJY,

2023 WL 2504499 (D. Nev. Mar. 14, 2023), and is

reproduced in the appendix to this petition (“Pet.

App.”) at Pet.App.26a–72a. The Ninth Circuit’s July

30, 2024 opinion is published, Scott v. Smith, 109

F.4th 1215 (9th Cir. 2024), and is reproduced in the

appendix at Pet.App.1a–25a. The Ninth Circuit’s

November 19, 2024, order denying panel and en banc

rehearing is not published and is reproduced in the

appendix at Pet.App.73a–74a.

JURISDICTION

This Court has jurisdiction to review the Ninth

Circuit’s July 30, 2024, decision on writ of certiorari

under 28 U.S.C. § 1254(1). The petition is timely filed

per the Court’s order extending the time to file until

April 18, 2025.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Respondents brought the underlying action under

42 U.S.C. § 1983, which states:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory or the District of

Columbia, subjects, or causes to be subjected,

any citizen of the United States or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution and

2

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress, except that in any

action brought against a judicial officer for an

act or omission taken in such officer’s judicial

capacity, injunctive relief shall not be granted

unless a declaratory decree was violated or

declaratory relief was unavailable.

42 U.S.C. § 1983.

Respondents allege Petitioners violated the rights

secured by the United States Constitution’s Fourth

Amendment, which provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or

things to be seized.

U.S. CONST. amend. IV.

3

INTRODUCTION

The Ninth Circuit Court of Appeals has a long and

troubling track record of denying qualified immunity

to police officers in contravention of this Court’s

precedents. Specifically, this 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, 742

(2011) (citation omitted). The Ninth Circuit has

repeated that error here.

Officers Huntsman and Smith faced a difficult

situation when they responded to a call from Roy

Anthony Scott, a paranoid schizophrenic man who was

hallucinating about armed intruders at his

apartment. As their body-worn cameras show, the

officers quickly realized that Scott was unwell and

qualified for a medical hold. But the situation was

dangerous, too. Scott was armed with a metal pipe and

a knife, and although he relinquished those weapons,

he refused many other police directions and would not

submit to a patdown. When the officers attempted to

conduct a patdown, Scott resisted with increasing

intensity. The officers attempted to wait out his

resistance while Scott lay face-up on the ground, but

when his kicking became more aggressive, they moved

him to his stomach to handcuff him. Scott grabbed at

the handcuffs, kicked, and thrashed. Huntsman

applied partial bodyweight pressure to Scott’s back,

and at some point, his knee slipped toward Scott’s

neck. Once the officers managed to handcuff Scott,

they immediately removed all pressure and rolled him

to his side in the “recovery position.” Huntsman’s

bodyweight pressure lasted no longer than 95 seconds,

and Scott appeared to be breathing (in fact, yelling)

before, during, and after that time.

4

Nonetheless, several minutes later, Scott

experienced medical distress. He was pronounced

dead after paramedics transported him to a local

hospital. Toxicology reports indicated he had

methamphetamine in his system.

The Ninth Circuit panel held that Huntsman and

Smith used excessive force to restrain Scott because

when “Roy Scott called the police for help,” “he did not

get it.” Pet.App.2a. They believed the officers should

have engaged in more “verbal de-escalation strategies”

or waited for more officers to execute a “team

takedown.” Pet.App.14a. They asserted that Scott “did

not present a risk to officers or others,” despite the fact

that he had been armed and refused to allow the

officers to pat him down. Id.

The panel’s decision ignores this Court’s

instruction to “judge[] from the perspective of a

reasonable officer on the scene, rather than with the

20/20 vision of hindsight” and to “allow[] for the fact

that police officers are often forced to make splitsecond judgments—in circumstances that are tense,

uncertain, and rapidly evolving.” Ryburn v. Huff, 565

U.S. 469, 477 (2012) (quoting Graham v. Connor, 490

U.S. 386, 396–97 (1989)).

The panel then denied qualified immunity to

Huntsman and Smith, based solely on a Ninth Circuit

precedent that held that “kneeling on the back and

neck of a compliant detainee … even after he

complained that he was choking and in need of air

violates clearly established law.” Drummond ex rel.

Drummond v. City of Anaheim, 343 F.3d 1052, 1062

(9th Cir. 2003) (emphasis added). That case is

materially distinguishable and obviously so because

the bodyweight pressure in Drummond was applied to

5

a handcuffed and hobbled arrestee who was no longer

resisting—an entirely different scenario from the facts

of this case. This Court has repeatedly admonished

lower courts not to engage in such expansive

interpretation in the qualified immunity context and

instead locate an “existing precedent [that] ‘squarely

governs’ the specific facts at issue.” Kisela v. Hughes,

584 U.S. 100, 104 (2018) (citation omitted).

The Ninth Circuit’s errors deepened a circuit split

by joining the Seventh Circuit, which has also held

that pre-arrest bodyweight pressure violates the

Fourth Amendment, while the First, Third, Fourth,

Sixth, and Tenth Circuits have held only that postarrest bodyweight pressure violates the Fourth

Amendment.

Certiorari is warranted to resolve this split in

authority. This is an issue of critical importance

because it affects officer and public safety. Bodyweight

pressure is among the lowest levels of force available

to officers who face a dangerous and rapidly evolving

situation when they attempt to handcuff a resisting

individual. If bodyweight pressure is unavailable to

effect an arrest, police officers face a greater risk of

injury, including the possibility that an arrestee

breaks free and harms other officers or bystanders or

requires an escalation to deadly force.

Lastly, this case presents an ideal vehicle for

addressing the questions presented. The officers’

interaction with Scott was captured by two body-worn

cameras, which not only recorded the entire encounter

but provided multiple angles of most events. That

leaves no genuine factual dispute as to any material

fact and makes this case an ideal candidate for review.

6

Petitioners urge this Court to grant the petition

and reverse.

STATEMENT OF THE CASE

A. Factual Background

At 3:09 a.m. on March 3, 2019, Scott called 911 to

report that three would-be intruders were outside his

apartment and that one of them had a saw.

Pet.App.3a. Two Las Vegas Metropolitan Police

Department Officers, Officer Kyle Smith and Officer

Theodore Huntsman (Petitioners) responded to the

call. Id.

Officer Smith’s and Officer Huntsman’s bodyworn cameras captured video footage of the events

that followed.1 This description matches the bodyworn camera video.

When Officers Smith and Huntsman arrived to

Scott’s apartment they found nothing suspicious. In

the video footage, the officers knock on Scott’s door,

and Scott yells back, telling the officers to “break the

1 The body-worn camera footage may be obtained by calling for

the record below. The Ninth Circuit Court of Appeals accepted

the filing of the body-worn camera footage as part of a DVD that

also contained the 911 call and the dispatch audio. Notice of DVD

Filing, Scott v. Smith, No. 23-15480 (9th Cir. Jan. 8, 2024), Dkt.

No. 27; see also Unopposed Motion to Transmit Exhibit, Scott, No.

23-15480 (9th Cir. Dec. 27, 2023), Dkt. No. 11; Order Granting

Unopposed Motion for Leave to Transmit Physical Exhibits,

Scott, No. 23-15480 (9th Cir. Aug. 7, 2023), Dkt. No. 25.

The same materials are also part of the district court record.

Exhibit A to Defendants’ Motion for Summary Judgment, Scott,

No. 2:20-cv-01872 (D. Nev. Feb. 7, 2022), Dkt. No. 19-2; see also

Decl. of Craig Anderson ¶ 4, Scott, No. 2:20-cv-01872 (D. Nev.

Feb. 7, 2022), Dkt. No. 19-1.

7

door down.” Pet.App.3a. Because the officers do not

hear anyone else inside, so they do not break down the

door. Scott does not come to the door, however, so

Officer Smith calls his sergeant for advice.2 By this

point in the encounter, the officers suspect that Scott

is having a mental health crisis, potentially related to

drug use. Pet.App.4a; see also Dep. Tr. of Theodore

Huntsman at 76:12–18, Scott, No. 2:20-cv-01872 (D.

Nev. Sept. 27, 2021), Dkt. No. 19-4 (“Huntsman Dep.”);

Dep. Tr. of Kyle Smith at 26:8–15, Scott, No. 2:20-cv01872 (D. Nev. Sept. 27, 2021), Dkt. No. 19-5 (“Smith

Dep.”).

The sergeant suggests trying once more to get

Scott to come to the door, so Officer Smith knocks

again. This time, Scott opens the door. Pet.App.4a.

Officer Smith retreats down the stairs as Scott

exits his apartment and descends the stairs with a

metal pipe in his hand. The officers order him to drop

the pipe, and he does. Id. Scott twice asks the officers,

“What am I supposed to do?” The officers direct him to

stand at a nearby wall, and Scott does. Id. The officers’

weapons were holstered at this time, and Officer

Smith uses a flashlight to illuminate Scott.

Pet.App.5a.

The officers ask Scott to put his phone down, but

he does not. Officer Huntsman tells Scott he wants to

“make sure you don’t have any other weapons on you.”

Scott says, “I don’t have any other weapons.” Officer

Smith replies (referring to Officer Huntsman), “he’s

going to pat you down for weapons, keep your hands

2 Officer Smith briefly turned his body-worn camera off during

this call, but Officer Huntsman’s body-worn camera continued

recording.

8

out of your pocket.” Scott does not follow that

instruction, but reaches to his waistband instead and

produces a knife, which he hands to Officer Huntsman

saying, “There you go, I’m sorry.” Officer Huntsman

discards the knife. Smith Body-Worn Camera II at

T11:33:20Z.3

The officers then order Scott several times to turn

around to face the wall. Scott does not and tells the

officers, “I’ve got paranoid schizophrenia.” Officer

Huntsman responds, “I get it, that’s fine. Just turn

around so I can pat you down, ok?” Id. at T11:33:43Z.

Scott does not turn around. He asks, “Can’t you

just put me in the car, please?” Officer Smith

responds, “Hey, right now we’re just trying to talk to

you so we can figure out what’s going on.” Scott

repeats, “Can’t you just put me in the car, please, sir?”

And Officer Huntsman replies, “Yeah, we’ll get you

some help, but you’ve got to listen to us.” Officer Smith

agrees: “You’ve got to listen to us so we can help you.”

Id. at T11:33:51Z.

Scott then tells Officer Smith that his flashlight is

bothering him. Officer Smith says, “Ok, you come out

carrying a pipe down the thing and then you just pull

a knife out of your pocket when I just told you not to

put your hands in your pockets, right?” Scott says, “I

think people are after me, man.” Officer Smith says,

“Ok. Well, just relax. My partner’s going to pat you

down, make sure you don’t have any weapons, ok?”

When Scott does not acquiesce, Officer Smith

continues, “Just do me a favor, turn around, and we’ll

3 Body-worn camera time stamps do not reflect the current time

in the jurisdiction but are keyed to.

9

take the light off, ok?” Then he turns off his flashlight.

Id. at T11:34:06Z.

Scott does not turn around, saying, “I’m paranoid.

I can’t turn around because someone’s gonna ….”

(trailing off). Officer Smith says, “ Would you like to

step up here, so that you can still watch?” This

exchange continues, with Scott reasserting that he is

paranoid, while Officer Smith encourages him to step

away from the wall “so we can talk with you.” Officer

Smith also reassures Scott that, “You’re fine. We’re

out here to help you, ok?,” to which Scott replies, “I’m

not fine.” Officer Smith tells Scott again that they are

there to help him. Id. at T11:34:25Z.

Although Scott still does not comply with the

officers’ instructions to turn around or step away from

the wall, the conversation continues. Officer Smith

says, “If you don’t want to back away from the wall so

that we can pat you down, we just want to make sure

you don’t have any weapons and you’re not hurt or

anything, ok?” [sic] Scott says he does not have any

weapons, and Officer Smith responds, “ok, well, you’ve

had two so far, so I’m not really comfortable with that

answer.” Id. at T11:34:51Z.

At this point, Scott moves his hand to the top of

the zipper of his jacket and says something about

taking his shirt off. Then, he unzips his jacket. Id. at

T11:35:05Z. Officer Smith immediately tells him, “No,

don’t take your shirt off,” and at the same time, Officer

Huntsman approaches Scott and holds Scott’s left

hand at the wrist—the hand that had been reaching

for his jacket. Officer Huntsman gently tries to guide

Scott away from the wall and place his hands behind

his back. Id. at T11:35:10Z. As he does so, Officer

Huntsman tells Scott, “We’re just going to make sure

10

you don’t have any weapons on you, ok?” Huntsman

Body-Worn Camera at T11:35:18Z. Officer Smith

repeatedly instructs Scott to “step up here,” meaning,

away from the wall.

As Officer Huntsman is attempting to hold Scott

away from the wall with his hands behind his back for

a patdown, Scott begins to protest and resist. Scott

repeatedly asks, “What are you doing?” as he pulls

away from the officers’ grasp with increasing force.

The officers repeatedly tell him to stop. Officer Smith

begins to physically assist Officer Huntsman by

holding Scott’s right upper arm. Id. at T11:35:28Z.

In the following seconds, Scott goes from standing

up to lying on the ground. The video does not depict

how Scott came to be on the ground, and the parties

do not agree. Because this case arises on a motion for

summary judgment and all factual inferences must be

made in Respondents’ favor, Petitioners will assume

that the officers used some degree of force to bring

Scott to the ground.4 Even so, both body-worn cameras

show that the degree of force is indisputably minimal,

as it appears that the officers support Scott as he

descends slowly, such that he does not land forcefully

or hit his head on the pavement. Id. at T11:35:36Z;

Smith Body-Worn Camera II at T11:35:36Z.

At this point, the officers struggle with Scott on

the ground. Scott kicks and thrashes his legs and

attempts to sit up forcefully. He repeatedly says

“Please, sir,” and “stop it, sir,” and “leave me alone.”

4 Both officers testified that they did not use force to bring Scott

to the ground. Huntsman Dep. at 84:16–85:3; Smith Dep. at 40:2–

6. The body-worn camera footage is consistent with this

testimony and reasonably permits the inference that Scott fell as

he was struggling with the officers.

11

The officers repeatedly respond, “stop,” and Officer

Smith says, “we’re trying to help you.” Smith BodyWorn Camera II at T11:36:00Z–28Z. A neighbor

emerges from an apartment nearby and begins to

observe. Id. at T11:36:32Z. Scott remains on his back

on the ground, continuing to resist and protest, while

the officers restrain him on either side.

Officer Smith then instructs Scott to roll over and

both officers repeatedly tell Scott to “stop” struggling.

Id. at T11:36:46Z. Scott, however, continues to protest

and resist, alternately pushing his torso up and then

raising his hips. Officer Smith tells Scott that the

officers are going to pat him down. Id. at T11:37:20Z.

But Scott continues struggling and the officers

attempt to wait out his resistance, still unable to

perform a patdown. The neighbor also attempts to

speak to Scott and urges him to calm down.

Then, Scott’s resistance intensifies, as he begins

to kick again and more strongly. Id. at T11:38:15Z.

Officer Smith tells Officer Huntsman, “Let’s get him

over,” and the officers turned Scott over to his

stomach. Id. at T11:38:31Z. Once on his stomach,

Officer Huntsman attempts to control Scott for

handcuffing by placing his left knee across Scott’s back

and shoulder area, id. at T11:38:35Z, and at one point,

his knee slips up to Scott’s neck, id. at T11:39:55Z.

Officer Smith places his left knee on Scott’s buttocks

to restrain his lower body. Huntsman Body-Worn

Camera at T11:38:39Z. The officers struggle with

Scott, who frees one of his arms and grabs at their

handcuffs. Id. at T11:38:41Z, T11:39:32Z. With great

effort, the officers are able to handcuff Scott. Id. at

T11:39:42Z.

12

As soon as handcuffing is complete, Officer Smith

tells Scott, “Relax. Hey, hey, what’s your name,

buddy?,” while Officer Huntsman simultaneously

removes his knee from Scott. Smith II Body-Worn

Camera at T11:40:04Z–10Z. The officers also

immediately move Scott into the “recovery position,”

on his side. Id. at T11:40:12Z–18Z.

The body-worn camera footage makes clear that

during the handcuffing struggle, Officer Huntsman

applied pressure to Scott’s upper body for, at most, 95

seconds. Id. T11:38:35Z–T11:40:08Z. It also shows

that before, during, and after these 95 seconds, Scott

is loudly protesting, sometimes in discernible words

and phrases, like “leave me alone,” and “why y’all

doing this.” Id. at T11:39:02Z, T11:39:13Z, T11:40:29Z.

At no point does Scott mention anything about his

breathing or complain that he is unable to breathe.

Also, throughout the handcuffing struggle, the bodyworn camera footage shows that Scott is actively

resisting, including by kicking. Id. at T11:39:06Z.

After being placed on his side, Scott continued to

thrash on the ground and yell at the officers. Id. at

T11:40:12Z. Officer Huntsman radioed for medical

assistance, noting that Scott appeared to have a cut on

his face from the struggle on the ground. Huntsman

Body-Worn Camera at T11:40:48Z. When Scott

returns himself to laying on his back, the officers help

him to roll again to his side, into the recovery position.

Id. at T11:41:01Z–19Z. The officers reassure Scott that

medical help is on the way and that they are not trying

to hurt him. Id. at T11:41:22Z. As Scott continues to

thrash, the officers move him to a safer spot, “so he

doesn’t hit his head” on nearby stone pavers. Id. at

T11:41:48Z. Officer Huntsman then holds Scott’s head

13

in his hand and tells him, “I’m going to hold your head

so you don’t hit it, ok?” Id. at T11:42:00Z. At this point,

Scott is still thrashing and speaking, continuing to

repeat phrases like, “why y’all doing this to me?,” and

the officers continue to tell Scott, “we are trying to help

you,” and “all we want to do is help.” Id. at

T11:42:07Z–21Z.

Scott finally begins to stop thrashing, more than

two minutes after the officers removed all bodyweight

pressure from him. Id. at T11:42:22Z. In the following

minutes, Scott also becomes quiet. Smith Body-Worn

Camera II at T11:44:00Z. Officer Smith grows

concerned, pats Scott on the shoulder, and asks, “you

alright, man?” Id. at T11:45:29Z. The officers confirm

that Scott is still “breathing” and assess his condition.

Id. at T11:46:15Z. In the minutes that follow, they reconfirm that Scott is still breathing, perform a

sternum rub, radio dispatch that Scott is a “possible

E.D.” (for “excited delirium”), and request that

medical help be expedited. Id. at 11:46:16Z–11:47:40Z.

When paramedics ultimately arrive, they begin

treating Scott and transport him on a gurney. Id. at

T11:54:10Z.

The coroner’s report explains that Scott went into

cardiac arrest in the ambulance and was later

pronounced dead at the emergency room of a nearby

hospital. Coroner’s Report of Investigation at 4, Scott,

No. 2:20-cv-01872 (D. Nev. Feb. 7, 2022), Dkt. No. 1910. The coroner concluded that Scott’s “death was

caused by methamphetamine intoxication” based on

toxicology reports and other evidence, and that

“review of body camera videos did not reveal restraint

procedure related to death.” Id. at 8. Respondents

produced an expert who concluded that Scott died

14

from “restraint asphyxia.” Expert Rep. of Dr. Kris

Sperry at 10, Scott, No. 2:20-cv-01872 (D. Nev. Apr. 5,

2022), Dkt. No. 25-22.

B. Proceedings Below

Respondents Rochelle Scott and Fredrick Waid,

co-special administrators of Scott’s estate, brought

this lawsuit against Petitioners Officer Smith, Officer

Huntsman, and the Las Vegas Metropolitan Police

Department. As relevant here, Respondents alleged

under 42 U.S.C. § 1983 that Petitioners violated

Scott’s Fourth Amendment right to be free from

excessive force. Specifically, Respondents alleged that

the officers acted unreasonably in performing a

“takedown” of Scott and applying bodyweight pressure

in order to handcuff him. Pet.App.37a. Petitioners

moved for summary judgment, arguing that no

constitutional violation occurred and that they were

entitled to qualified immunity.

As relevant here, the district court denied

Petitioners’ motion for summary judgment on

Respondents’ Fourth Amendment excessive force

claim. Pet.App.45a. The district court concluded that

genuine issues of disputed fact existed such that the

force at issue could be deemed constitutionally

excessive,

and

denied

qualified

immunity.

Pet.App.51a. Petitioners appealed.

The Ninth Circuit affirmed the district court’s

denial of summary judgment, holding that “Smith and

Huntsman’s actions, taken in the light most favorable

to Plaintiffs, establish a constitutional violation,”

Pet.App.16a, and that a single Ninth Circuit

precedent, Drummond, 343 F.3d 1052, “clearly

established that the officers’ use of force was

constitutionally excessive.” Pet.App.19a.

15

The panel began its opinion by describing how

Scott had “called the police for help” “[b]ut he did not

get it.” Pet.App.2a. In its recitation of the facts, the

panel omitted any mention of the officers’ repeated

instructions to Scott about the need to conduct a

patdown for weapons. The panel, construing the facts

in Respondents’ favor, described that Smith and

Huntsman “pulled [Scott] to the ground,” and that

“Huntsman put his bodyweight on Scott’s back and

neck for about one to two minutes” while “Scott’s pleas

turned increasingly incoherent and breathless.”

Pet.App.5a–6a.

In its legal analysis, the panel began with the

premise that “summary judgment in excessive force

cases should be granted sparingly.” Pet.App.8a

(cleaned up). The panel then concluded that the

officers used “severe, deadly force” in their interaction

with Scott, Pet.App.10a, and that the government’s

interest in using force was “limited” for three reasons:

(1) “Smith and Huntsman did not suspect Scott of a

crime,” (2) “Scott did not pose a danger to the officers

or others,” and (3) “Scott did not attack the officers or

anyone else” but “stood where officers directed him to

stand and made no threatening movements.”

Pet.App.12a–14a. The panel also claimed that “Smith

and Huntsman ignored less intrusive alternatives to

the force they employed” like “verbal de-escalation

strategies, wait[ing] for the support of additional

officers to execute a safer ‘team takedown,’ or

wait[ing] for EMS to execute a ‘soft restraint.’”

Pet.App.14a. Then, balancing the interests, the panel

concluded that because a “grievous injury does not

serve the objective of taking an individual into custody

to prevent injury to himself when he is not suspected

of any crime,” “a reasonable jury could thus find that

16

the officers’ use of severe or deadly force was

constitutionally excessive.” Pet.App.16a (cleaned up).

Then, the panel considered whether a reasonable

officer would have known that his conduct was

unconstitutional, and concluded that he would have.

“Our caselaw makes clear that any reasonable officer

should have known that bodyweight force on the back

of a prone, unarmed person who is not suspected of a

crime is constitutionally excessive.” Pet.App.16a–17a.

The panel relied solely on its own previous opinion in

Drummond, a case that—in the panel’s own

retelling—held that it was unconstitutionally

excessive for officers to “press[] their weight against

an individual’s torso and neck, crushing him against

the ground” and “maintain[] that pressure for a

significant period of time while the suspect was prone,

handcuffed, offered no resistance, and repeatedly told

officers that he could not breathe and that they were

choking him.” Pet.App.17a (cleaned up).

Petitioners sought panel and en banc rehearing,

which was denied. Pet.App.74a.

REASONS FOR GRANTING THE PETITION

I.

The Officers Acted Reasonably Under The

Circumstances.

The Fourth Amendment protects “[t]he right of

the people to be secure in their persons … against

unreasonable … seizures.” U.S. CONST. amend. IV.

In evaluating a claim under the Fourth

Amendment, the ‘“reasonableness’ of a particular use

of force must be judged from the perspective of a

reasonable officer on the scene, rather than with the

20/20 vision of hindsight.” Graham, 490 U.S. at 396.

17

In the context of an excessive force claim, this

standard means that “[n]ot every push or shove …

violates the Fourth Amendment,” “even if it may later

seem unnecessary in the peace of a judge’s chambers.”

Id. (citation and quotation marks omitted). Instead, a

reviewing court must “allow[] 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

397.

Also, because this case arises in a summary

judgment posture, the “facts must be viewed in the

light most favorable to the nonmoving party,” but

“only if there is a ‘genuine’ dispute as to those facts.”

Scott v. Harris, 550 U.S. 372, 380 (2007). Where, as

here, virtually all of the relevant facts are captured in

video footage, the Court “should … view[] the facts in

the light depicted by the videotape.” Id. at 381.

Here, Officers Huntsman and Smith acted

reasonably based on the information available to them

at the time, and their actions did not violate the

Fourth Amendment.

During the encounter, the officers understood

that Scott was hallucinating about threats that did not

exist and had armed himself against those imaginary

threats. The officers knew that Scott had been

carrying at least a metal pipe and a knife, and that he

had at one point denied having more weapons before

producing a knife from his waistband, contrary to the

officers’ orders not to reach there. The officers

repeatedly asked to pat Scott down, but he was

unwilling, so they had no way of knowing whether

Scott was armed or not. Although Scott told the

18

officers he had no other weapons, Officer Smith

reasonably assessed the situation out loud:“[W]ell,

you’ve had two so far, so I’m not really comfortable

with that answer.” See supra at 7.

Officer Huntsman did not physically intervene

until Scott had unzipped his jacket despite the officers’

orders—an act that made the situation more

dangerous, since Scott may have been armed. Even

then, Officer Huntsman merely held Scott’s wrist to

guide him away from the wall for a patdown, and the

struggle escalated because Scott began resisting the

officers with increasing intensity.

In the minutes that followed, the officers used

empty-hand tactics to restrain Scott. They initially

attempted to hold his hands behind his back; then

they brought him to the ground5 where they restrained

him face-up and attempted to wait out his resistance;

and when his kicking intensified, they rolled him to

his stomach for handcuffing. They applied bodyweight

pressure only while attempting to handcuff Scott, and

as soon as handcuffing was complete, they removed

the pressure and placed Scott in the recovery position.

At no point did the officers use punches or strikes to

subdue Scott.

The facts just described are apparent from the

body-worn camera footage and do not permit the

conclusion that the officers used excessive force in

their interaction with Scott. Graham instructs

reviewing courts to consider “the severity of the crime

at issue, whether the suspect poses an immediate

5 Again, Petitioners dispute that they performed a “takedown”

of Scott, but because the body-worn camera is inconclusive,

Petitioners draw the inference in the light most favorable to

Respondents.

19

threat to the safety of the officers or others, and

whether he is actively resisting arrest.” 490 U.S. at

396. There is no dispute that the officers had cause to

support a mental health hold of Scott; he posed an

immediate threat to their safety because he would not

submit to a patdown and was hallucinating threats;

and he actively resisted the officers.

II. The Ninth Circuit Departed From This

Court’s Precedents In Denying The Officers

Qualified Immunity.

Officers Huntsman and Smith are entitled to

qualified immunity because they acted reasonably

under the circumstances, based on the information

known to them at the time of their encounter with

Scott. Even if their conduct could be deemed to violate

the Fourth Amendment, the officers are nonetheless

entitled to qualified immunity because that violation

was not clearly established by any case of this Court

nor any Ninth Circuit precedent.

A. The Ninth Circuit Departed from This

Court’s Precedents in Concluding that

the Officers’ Use of Force Was

Unreasonable.

The Ninth Circuit erred when it held that the

officers’ actions could be found to be unreasonable

under the Fourth Amendment. That decision directly

violates this Court’s directives in Graham by relying

on 20/20 hindsight to scrutinize the officers’ actions

from “the peace of a judge’s chambers.” 490 U.S. at 396

(quotation marks and citation omitted).

The panel opinion concluded that “Scott did not

pose a danger to the officers or others” because he

“immediately relinquished both” his weapons “when

directed to do so.” Pet.App.13a. But the officers could

20

not have known that the two weapons Scott had

relinquished were the only two weapons he had

because he would not submit to a patdown. They

reasonably suspected he might still be armed,

especially since Scott had already claimed to be

unarmed before producing a knife.

The panel faulted the officers for using force when

Scott “did not threaten [the] officers or himself,” but

that arm-chair quarterbacking ignores the nonverbal

ways in which Scott’s behavior posed a threat to the

officers’ safety. Id. Scott had repeatedly disregarded

the officers’ directions, even when they made

accommodations to account for Scott’s paranoia. And

Scott’s mental illness, even if beyond his control,

added to the danger of the situation: he was

hallucinating threats, was experiencing a mental

break with reality, and may still have been armed.

Pet.App.4a–5a.

The panel thought the degree of Scott’s resistance

was “complicated” because although “Scott …

screamed and tried to pull away from the officers” he

“did not attack the officers or anyone else.” Here again,

the panel ignored the body-worn camera footage,

which clearly shows Scott kicking aggressively at the

officers and resisting the officers with enough force to

injure them.

The panel also said the officers “ignored less

intrusive alternatives to the force they employed,” like

“de-escalation strategies” or “wait[ing] for the support

of additional officers to execute a safer ‘team

takedown.’” Pet.App.14a. But the body-worn camera

footage shows that the officers attempted to deescalate throughout the encounter, assuring Scott

that they wanted to help him, repeating and

21

explaining instructions to him multiple times, offering

accommodations for conducting the patdown, and

turning off the flashlight when Scott requested. Even

when the encounter turned into a physical struggle,

the officers created multiple opportunities for Scott to

cease resisting, like restraining him face-up on the

ground to wait for his cooperation—an effort that was

only interrupted when Scott began kicking more

aggressively at the officers.

Finally, the panel concluded that the officers used

“deadly force,” which was “not justified” because Soctt

was “a mentally ill person who was not suspected of

committing a crime and presented little or no danger.”

Pet.App.15a. As described, Scott did pose a significant

danger to the officers. And even if the officers’ force

contributed to Scott’s death, that result was not

foreseeable to the officers based on the facts known to

them at the time. Scott never complained about his

breathing, and he continued speaking before, during,

and after the 95 seconds in which the officers used

some form of bodyweight pressure to restrain him. The

panel admonished that causing “grievous injury does

not serve the objective of taking an individual into

custody to prevent injury to himself when he is not

suspected of any crime,” but Scott’s medical distress

occurred only after the officers had ceased their use of

force. Pet.App.16a (cleaned up). It is a classic

application of hindsight to evaluate the officers’ force

based on a “grievous injury” they could not have

foreseen.

The Ninth Circuit departed from this Court’s

Fourth Amendment precedents in concluding that the

officers used excessive force in their encounter with

Scott.

22

B. The Ninth Circuit Departed from This

Court’s Precedents by Concluding that

Drummond “Clearly Established” that

Applying Bodyweight Pressure to Make

an Arrest Is Unconstitutional.

Even if the officers’ use of force had been

excessive, the Ninth Circuit contravened this Court’s

precedents by concluding that one of their own readily

and materially distinguishable decisions “clearly

established” that the officers’ conduct violated the

Fourth Amendment. “[Q]ualified immunity shields

officials from civil liability so long as their conduct

does not violate clearly established statutory or

constitutional rights of which a reasonable person

would have known.” Mullenix v. Luna, 577 U.S. 7, 11

(2015) (internal quotation marks omitted). “A clearly

established right is one that is sufficiently clear that

every reasonable official would have understood that

what he is doing violates that right.” Id. (internal

quotation marks omitted). “[F]or a right to be clearly

established, existing precedent must have placed the

statutory or constitutional question beyond debate.”

Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021)

(quotation marks omitted). That “inquiry must be

undertaken in light of the specific context of the case,

not as a broad general proposition.” Id. (internal

quotation marks omitted).

The Ninth Circuit relied exclusively on one of its

own cases, Drummond, 343 F.3d at 1056–57, to

conclude that Officers Huntsman and Smith acted in

violation of the “clearly established” rule “that it is

unconstitutional to use bodyweight force on the back

and neck of a prone and unarmed individual.”

Pet.App.17a. Drummond, however, is readily and

23

materially distinguishable from the facts of this case

and could not have “clearly established” that Officer

Huntsman’s and Smith’s actions violated the Fourth

Amendment.

In Drummond, police were called to respond to

Brian Drummond, a mentally ill man who was

agitated and hallucinating, though unarmed. 343 F.3d

at 1054. The officers decided to take Drummond into

custody for his own safety. Id. Eyewitnesses saw the

officers knock Drummond to the ground and cuff him

behind his back. Id. Although Drummond did not

resist the officers, they applied knees and bodyweight

pressure to Drummond’s neck and back. Id.

Eyewitnesses said that Drummond fell into

respiratory distress and that he “repeatedly told the

officers that he could not breathe and that they were

choking him.” Id. Twenty minutes later, they applied

a hobble restraint to Drummond’s ankles, at which

point he went limp and lost consciousness. Id. at 1055.

Drummond was later revived but sustained brain

damage and remained in a permanent vegetative

state. Id.

This Court has never held that controlling circuit

precedent clearly establishes law for purposes of §

1983. Rivas-Villegas, 595 U.S. at 5. But assuming that

it may, Drummond is obviously distinguishable from

the facts of this case and did not clearly establish that

Officer Huntsman’s and Scott’s conduct violated the

Fourth Amendment.

Drummond applied the Graham factors to posthandcuffing use of force, concluding that the “Graham

factors would have permitted the use of only minimal

force once Drummond was handcuffed and lying on the

ground.” Drummond, 343 F.3d at 1058 (emphasis

24

added). The Drummond panel made the significance

of the post-handcuffing timing explicit. The panel

acknowledged that “some force was surely justified in

restraining Drummond so that he could not injure

either himself or the arresting officers,” but “after he

was handcuffed and lying on the ground, the force that

the officers then applied was clearly constitutionally

excessive.” Id. at 1059 (emphasis added).

This is a critical and fundamental difference

between Drummond and this case. Here, Officers

Huntsman and Smith used only pre-handcuffing

bodyweight force, and once they handcuffed Scott, the

officers removed all pressure and placed Scott on his

side to facilitate breathing. For that reason alone,

Drummond cannot have “clearly established” that

Officers

Huntsman

and

Smith

applied

unconstitutional force to Scott.

Drummond is different in other material ways,

too. The Drummond panel noted that, “[o]nce on the

ground, prone and handcuffed, Drummond did not

resist the arresting officers,” who nevertheless

“pressed their weight against his torso and neck,

crushing him against the ground.” Id. (emphasis

added). Here, Scott was resisting before, during, and

after the time in which the officers applied bodyweight

pressure to restrain him. Also, in Drummond, the

officers “did not remove th[eir] pressure despite

Drummond’s pleas for air.” Id. Scott, however, never

complained that he could not breathe and appeared to

be breathing well throughout the 95 seconds of

bodyweight pressure, as evidenced by his audible (and

often intelligible) yelling before, during, and after that

time.

25

In fact, the use of force in Drummond was so

extreme that the panel concluded the officers had “fair

warning” that their conduct was constitutionally

excessive even without any precedent directly on

point. In their words, “[a]ny reasonable officer should

have known” that it was unconstitutional to “crush[]

Drummond against the ground …[,] 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.” Id. at 1061 (emphasis in

original); see also 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.”).

This case is entirely different. Officers Huntsman

and Smith faced a potentially armed, hallucinating

individual who was actively resisting. They applied

bodyweight pressure for at most 95 seconds, and

removed the pressure as soon as handcuffing was

complete. By contrast, in Drummond, officers applied

bodyweight pressure to a handcuffed, compliant,

unarmed individual for twenty minutes, even as he

repeatedly cried out for air.

These differences matter. This Court has

repeatedly instructed that the “clearly established”

“inquiry must be undertaken in light of the specific

context of the case, not as a broad, general

proposition.” Rivas-Villegas, 595 U.S. at 5 (internal

quotation marks omitted). “[S]pecificity is especially

important in the Fourth Amendment context, where

… it is sometimes difficult for an officer to determine

how the relevant legal doctrine … will apply to the

26

factual situation the officer confronts.” Id. at 6

(quoting Mullenix, 577 U.S. at 12).

Additionally, other unpublished Ninth Circuit

precedents support that Drummond set out a rule that

the post-handcuffing use of bodyweight pressure may

constitute excessive force, not that Drummond creates

a blanket rule that bodyweight pressure is inherently

excessive or deadly. In Tucker v. Las Vegas

Metropolitan Police Dep’t, the Ninth Circuit cited

Drummond while granting qualified immunity to

officers related to “the force used before [the target]

was handcuffed” and denying qualified immunity as

to the application of “body pressure to restrain him

after he was handcuffed and face down on a bed.” 470

F. App’x 627, 628–29 (9th Cir. 2012) (emphases

added). And in two other cases, other Ninth Circuit

panels recited the rule of Drummond as specifically

applying to post-handcuffing bodyweight pressure.

Abston v. City of Merced, 506 F. App’x 650, 652 (9th

Cir. 2013) (relying on Drummond to establish that

officers’ “use of body compression as a means of

restraint was unreasonable” where target “was

handcuffed and shackled”); Arce v. Blackwell, 294 F.

App’x 259, 261–62 (9th Cir. 2008) (relying on

Drummond to establish that bodyweight pressure

when the target’s “hands were cuffed behind his back”

was excessive while distinguishing a case where

officers “ceased using force once [the target] was

handcuffed,” which was not excessive (quotation

marks omitted)).

Expanding Drummond to apply to prehandcuffing bodyweight pressure is also inconsistent

with this Court’s decision in Rivas-Villegas, which

granted qualified immunity to an officer who placed

27

his knee onto the back of a prone suspect for eight

seconds before he could be handcuffed. 595 U.S. at 4.

The Ninth Circuit departed from the precedents

of this Court in holding that Officers Huntsman and

Smith violated the Fourth Amendment when they

applied pre-handcuffing bodyweight pressure to Scott.

III. The Ninth Circuit’s Errors Deepen A Circuit

Split About The Use Of Pre-Handcuffing

Bodyweight Pressure.

In denying qualified immunity here, the Ninth

Circuit joined the Seventh Circuit in breaking with

the majority rule of the First, Third, Fourth, Sixth,

and Tenth Circuits, which have found no

constitutional violation or have granted qualified

immunity where officers used bodyweight pressure to

secure an arrest.

The Tenth Circuit has twice articulated the rule

that subjecting an arrestee to bodyweight pressure

“for a significant period after it was clear that the

pressure was unnecessary to restrain him” is

excessive under the Fourth Amendment. Weigel v.

Broad, 544 F.3d 1143, 1152 (10th Cir. 2008). In Weigel,

the Tenth Circuit denied qualified immunity where

there was evidence “that for three minutes the

troopers subjected [the arrestee] to force that they

knew was unnecessary to restrain him and that a

reasonable officer would have known presented a

significant danger of asphyxiation and death.” Id. at

1153. While, “up to a point, the troopers were

protecting themselves and the public from [the

arrestee] and [the arrestee] from himself,” the

prolonged, post-arrest bodyweight pressure was

deemed excessive. Id. at 1155. The Tenth Circuit also

denied qualified immunity in Estate of Booker v.

28

Gomez, where the facts could support that an officer

placed more than 140 pounds of force on an arrestee’s

“back while he was handcuffed on his stomach” in a

“prone, restrained, position.” 745 F.3d 405, 424 (10th

Cir. 2014).

In McCue v. City of Bangor, the First Circuit

denied qualified immunity to officers where a genuine

factual dispute existed over the duration of the

officers’ post-handcuffing bodyweight pressure. 838

F.3d 55, 65 (1st Cir. 2016). Dashboard camera footage

in McCue could not resolve a factual dispute over

whether the officers had applied post-handcuffing

bodyweight pressure for 66 seconds or five minutes

after the arrestee had ceased resisting. Id. at 63

(“[T]here could be close to five minutes—not 66

seconds—during which the officers continued to exert

force on a nonresisting [arrestee].”). The First Circuit

denied qualified immunity based on the material,

factual dispute about at what point the arrestee

“ceased resisting and for how long after that moment

the officers continued to apply force on his back.” Id.

at 65.

The Fourth Circuit has held that officers engaged

in constitutionally permissive force when they used

bodyweight pressure to handcuff and restrain a

mentally ill man. Est. of Armstrong ex rel. Armstrong

v. Village of Pinehurst, 810 F.3d 892, 897–98 (4th Cir.

2016). There, the officers used far greater total prearrest force than here—tasing, wrestling, choking, legshackling, and applying bodyweight pressure to the

man—during a mental health crisis in which he posed

only a danger to himself. Id. Some of that force was

constitutionally excessive. Id. at 906. But the Fourth

Circuit simultaneously endorsed the use of some force

29

in this circumstance. Id. (“[W]e certainly do not

suggest that [the officers] had a constitutional duty to

stand idly by and hope that [the arrestee] would

change his mind and return to the Hospital on his own

accord.”). And the court specifically isolated the

officers’ bodyweight pressure and concluded that

“[a]pplying just enough weight to immobilize an

individual continuing to struggle during handcuffing

is not excessive force.” Id. at 906 n.11 (cleaned up). The

court also granted qualified immunity for all of the

force used because no case had clearly established that

the stronger measures were unconstitutional in a like

circumstance. Id. at 907.

The Sixth Circuit has also held that bodyweight

pressure constituted excessive force only after the

arrestee was handcuffed and incapacitated. In

Champion v. Outlook Nashville, Inc., police responded

to a mentally ill individual who had overpowered his

caretaker. 380 F.3d 893 (6th Cir. 2004). The officers

used pepper spray, a takedown maneuver, handcuffs,

and a hobble device to restrain him. Id. at 897. Then

after the individual was restrained, officers allegedly

continued to use pepper spray and applied bodyweight

pressure to his back. Id. The Sixth Circuit held that

this use of post-arrest force was constitutionally

excessive. Id. at 903. The court held that it was

“clearly established that putting substantial or

significant pressure on a suspect’s back while that

suspect is in a face-down prone position after being

subdued and/or incapacitated constitutes excessive

force” and denied qualified immunity. Id. (emphasis

added).

The Third Circuit has held that officers did not

engage in constitutionally excessive force when one

30

officer pressed a knee into the chest of an arrestee who

was continuing to thrash, flail, and resist “even after

he had been handcuffed with his hands in front of his

body.” Bornstad v. Honey Brook Twp., 211 F. App’x

118, 120 (3d Cir. 2007) (emphasis added). The Third

Circuit distinguished circumstances in which an

arrested individual becomes compliant such that

continuing to apply bodyweight pressure would be

excessive. It is not “clearly unreasonable to exert

severe force on an individual who continues to

violently resist arrest,” including by “continu[ing] to

struggle with police even after” the arrestee is “down

on the ground and handcuffed.” Id. at 124.

Only the Seventh Circuit has denied qualified

immunity to officers who applied pre-handcuffing

bodyweight force. In Abdullahi v. City of Madison,

officers applied bodyweight pressure to a target’s back

and shoulder area for approximately 30–45 seconds in

order to handcuff him, and they removed that

pressure afterwards. 423 F.3d 763, 765 (7th Cir. 2005).

The panel concluded that medical evidence, which

indicated that the arrestee suffered a fatal crushing

injury as a result of the pressure, supported “an

inference of unreasonable conduct” and denied

summary judgment to the officers involved. Id. at 773.

The Ninth Circuit’s decision here deepened an

existing split about the reasonable use of bodyweight

pressure to complete an arrest. The First, Third,

Fourth, Sixth, and Tenth Circuits hold that

bodyweight pressure becomes unreasonable only

when applied after arrest, to an incapacitated

individual. Only the Ninth and Seventh Circuits have

held that officers act unreasonably under the Fourth

Amendment when they use bodyweight pressure to

restrain an individual in order to make an arrest.

31

IV. The Questions Presented Are Critically

Important And This Is An Ideal Vehicle To

Resolve Them.

Not only does the Ninth Circuit’s decision here

depart from this Court’s controlling precedents and

from the rule of at least five other circuits, it does so

on an issue that is extremely important to officer

safety and in a case in which the record is

exceptionally clear because two body-worn cameras

captured the relevant events. That makes this case an

ideal vehicle to address a critically important issue,

and certiorari is warranted.

“[P]olice officers are often forced to make splitsecond judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount of

force that is necessary in a particular situation.”

Graham, 490 U.S. at 397. This is especially true of the

decision to take someone into custody, particularly

when that person resists. Officers must then make

split-second decisions about many possible uses of

force, ranging from empty hand grappling tactics to

deploying pepper spray, a baton, or a taser. And they

must do so even if the individual lashes out at them

with fists, kicks, bites, or other types of injuring force.

On that continuum of possible force, bodyweight

pressure is among the least forceful options available,

but the Ninth Circuit’s decision threatens to embroil

officers in constitutional litigation any time they

employ it. This case is not about bodyweight pressure

that extends past the time it takes to apply handcuffs,

when such force is more likely to be punitive and

excessive. This case concerns pre-handcuffing

bodyweight pressure that is removed once handcuffing

is complete. Pre-handcuffing bodyweight pressure is a

32

reasonable use of force when applied to take someone

into custody lawfully.

Of course, bestowed with the gift of 20/20

hindsight, a judge may think that a particular

duration or amount of pre-handcuffing bodyweight

pressure exceeded what was strictly required to

restrain an individual, but qualified immunity exists

to prevent judicial second-guessing in that

circumstance. Qualified immunity protects officers

from suit unless “existing precedent placed the

statutory or constitutional question beyond debate.”

City & County of San Francisco v. Sheehan, 575 U.S.

600, 611 (2015) (cleaned up). That is an intentionally

exacting standard precisely because it “gives

government officials breathing room to make

reasonable but mistaken judgments,” such that

qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law.”

Id. (quotation marks omitted).

By restricting a basic handcuffing technique, the

Ninth Circuit’s decision invites judicial armchairquarterbacking of the kinds of split-second judgments

officers must make under extreme pressure. It also

puts officers and the public at risk. Without the use of

bodyweight force, officers may be unable to make an

arrest of a resisting subject, allowing a subject to

break free and potentially injure the officer or

bystanders. That may even, perversely, lead to the use

of greater force to detain the individual, including

deadly force. It is critically important that officers be

permitted to use low-level force to effect an arrest, like

the bodyweight pressure employed here.

This case is also an ideal vehicle for addressing

this important question because the record is as clear

33

as can be expected from any police encounter. Both

officers wore body cameras that captured the entire

encounter with Scott, almost always with two

simultaneous angles of the same event. Several

witnesses were also present for portions of the

encounter and were deposed about what they saw that

evening. As a result, the record presents a clear

factual picture against which the Fourth Amendment

and qualified immunity standards can be applied, and

very few facts can be reasonably disputed at all. The

panel noted several disputed facts that it thought

prevented summary judgment in the case, but these

do not present any vehicle flaw because they are not

material to the legal questions at issue. See

Pet.App.7a–8a (describing “genuine issues of fact”

about how and why Scott fell to the ground, the

duration of the bodyweight pressure, and Scott’s cause

of death). Even when the plaintiff’s interpretation of

these disputed facts is accepted, as Petitioners do for

purposes of this Petition, the officers are still entitled

to qualified immunity.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition.

34

Respectfully submitted,

CRAIG R. ANDERSON

MARQUIS AURBACH

CHTD.

10001 Park Run Drive

Las Vegas, NV 89145

(702) 382-0711

canderson@maclaw.com

MEGAN M. WOLD

Counsel of Record

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

mwold@cooperkirk.com

Counsel for Petitioners

April 18, 2025

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STAT ES COU RT OF A PPEA LS FOR

T H E N I N T H C I R C U I T, F I L ED

JULY 30, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

S TAT E S DI S T R IC T C OU RT FOR

THE DISTRICT OF NEVA DA , FILED

MARCH 14, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26a

APPENDIX C — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

FILED NOVEMBER 19, 2024 . . . . . . . . . . . . . . . . 73a

1a

Appendix

A

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT,

FILED JULY 30, 2024

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 23-15480

D.C. No. 2:20-cv-01872-RFB-EJY

ROCHELLE SCOTT, INDIVIDUALLY, AND AS

CO-SPECIAL ADMINISTRATOR OF THE ESTATE

OF ROY ANTHONY SCOTT; FREDRICK WAID, AS

CO-SPECIAL ADMINISTRATOR OF THE ESTATE

OF ROY ANTHONY SCOTT,

Plaintiffs-Appellees,

v.

KYLE SMITH; THEODORE HUNTSMAN;

LAS VEGAS METROPOLITAN POLICE

DEPARTMENT,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Nevada

Richard F. Boulware II, District Judge, Presiding

Argued and Submitted May 13, 2024

Phoenix, Arizona

Filed July 30, 2024

2a

Appendix A

Before: Roopali H. Desai and Ana de Alba, Circuit

Judges, and Philip S. Gutierrez,* District Judge.

OPINION

DESAI, Circuit Judge:

Early in the morning on March 3, 2019, Roy Scott

called the police for help. But he did not get it. Las Vegas

Metropolitan Police Department Officers Kyle Smith

and Theodore Huntsman came to the scene. Scott was

unarmed and in mental distress. Though he complied

with the officers’ orders and was not suspected of a

crime, Smith and Huntsman initiated physical contact,

forced Scott to the ground, and used bodyweight force

to restrain him. Shortly after, Scott lost consciousness

and he was later pronounced dead. Scott’s daughter and

a representative of Scott’s estate sued the officers and

the Department for violating their constitutional rights,

including the Fourth Amendment right to be free from

excessive force and the Fourteenth Amendment right to

familial association.

Officers Smith and Huntsman appeal the district

court’s order denying summary judgment on the basis of

qualified immunity. We hold that, construing the facts in

the light most favorable to Plaintiffs, Smith and Huntsman

violated Scott’s Fourth Amendment rights. Because the

applicable law was clearly established at the time of the

* The Honorable Philip S. Gutierrez, United States District

Judge for the Central District of California, sitting by designation.

3a

Appendix A

incident, we affirm the denial of qualified immunity for

Plaintiffs’ Fourth Amendment claim. As to Rochelle

Scott’s Fourteenth Amendment claim, we hold that

Officers Smith and Huntsman violated Rochelle Scott’s

Fourteenth Amendment right to familial association, but

that right was not yet “clearly established” at the time

of the violation. We thus affirm in part and reverse and

remand in part.

BACKGROUND

Early in the morning on March 3, 2019, Roy Scott

called 911.1 He reported multiple assailants outside his

apartment with a saw. Las Vegas Metropolitan Police

Department Officers Smith and Huntsman were assigned

to the call. Dispatch notified the officers that Scott was

mentally ill.

Scott was distressed and hallucinating when Officers

Smith and Huntsman arrived at his apartment. After Smith

and Huntsman knocked and identified themselves, Scott

yelled to the officers to “break the door down” claiming

that there were people inside his house. The officers did

not break the door in because they did not hear anyone

inside the apartment. Instead, they continued to knock and

order Scott to come to the door. About two minutes after

first knocking on the door, Smith told Huntsman, “this is

a 421A for sure,” using the department code to indicate

1. This is an interlocutory appeal challenging the denial of

qualified immunity. As we recount the facts here, we thus resolve

all disputed factual issues in Plaintiffs’ favor. See Est. of Anderson

v. Marsh, 985 F.3d 726, 731 (9th Cir. 2021).

4a

Appendix A

he believed Scott was mentally ill. Huntsman then called

through the door: “Sir, have you been diagnosed with any

mental diseases?” After Scott did not come to the door,

Smith asked dispatch to call Scott back to ask him to

come to the door, noting again that Scott appeared to be

mentally ill. Smith then said to Huntsman: “I ain’t going

in there. That’s too sketchy.” Huntsman agreed, “That

dude’s wacky.” Peering into Scott’s window, Huntsman

asked Smith if he could see the “crazed look in [Scott’s]

eye.” They could not see anyone else in Scott’s apartment.

When Scott did not open the door, Smith called

their sergeant, turning off his body worn camera. On

Huntsman’s camera, Smith can be heard telling their

sergeant that Scott sounds mentally ill. After ending the

call, Smith told Huntsman that their sergeant said that

“at the end of the day we can’t do anything if we don’t hear

any reason to have an exigent circumstance.” Smith also

explained that their Sergeant suggested they try again

to get Scott to come to the door. Smith resumed knocking

and ordered Scott to come to the door. Seconds later, and

about seven minutes after Smith and Huntsman arrived

on the scene, Scott opened the door.

As Scott opened the door, Smith retreated down the

stairs in front of Scott’s apartment. Scott held a metal pipe

at his side as he descended the stairs. He immediately

dropped the pipe when officers asked him to do so.

Disoriented, Scott asked the officers twice: “What am

I supposed to do?” Smith and Huntsman directed him

to stand near a wall at the base of the stairs, and Scott

immediately complied. When Huntsman asked Scott if

5a

Appendix A

he had any other weapons, Scott produced a knife from

his front pocket and said, “I am sorry.” He handed the

knife to Huntsman handle-side out and did not make any

threatening gestures.

Smith and Huntsman ordered Scott to face the wall,

shining a flashlight at him. Scott told them that the light

bothered him and that he had paranoid schizophrenia.

He asked twice: “Can you just put me in the car please?”

When asked about the weapons he had relinquished,

Scott explained, “I think people are after me.” Smith

again directed Scott to face the wall, and Scott replied,

“I’m paranoid, I can’t turn around.” Smith told Scott,

“You’re fine. We are out here to help you.” Scott repeatedly

responded, “I’m not fine.” Although they did not discuss

it, officers allege they recognized Scott was in “some sort

of distress” and concluded he met the qualifications for a

medical hold for his mental health and safety.

Smith and Huntsman approached Scott and grabbed

his arms. Scott repeatedly pleaded “please” and “what

are you doing” in a distressed voice, while Smith and

Huntsman pulled him to the ground. At first, the officers

held Scott’s arms at his sides while he was lying on his

back. In this position, Scott screamed, struggled, and pled

with the officers to leave him alone for over two minutes.

The officers then eventually rolled Scott onto his stomach,

repeatedly ordering Scott to “stop.” With Scott on his

stomach and with his hands restrained behind his back,

Huntsman put his bodyweight on Scott’s back and neck for

about one to two minutes. At the same time Smith put his

weight on Scott’s legs, restraining his lower body. Scott’s

6a

Appendix A

pleas turned increasingly incoherent and breathless as

Huntsman applied his bodyweight.

After handcuffing him, the officers attempted to roll

Scott on his side, as he continued to incoherently cry out

that he wanted to be left alone. When they rolled Scott

over, his face was bloody from contact with the ground.

Scott stopped yelling and thrashing around after a few

minutes. Scott did not respond when Smith and Huntsman

tried to wake or revive him. Shortly after, when the

paramedics arrived, Scott was still unresponsive. Scott

was pronounced dead after paramedics removed him from

the scene. Plaintiffs’ expert found that Scott had died from

restraint asphyxia.

Rochelle Scott (Scott’s daughter and co-special

administrator of his estate) and Fredrick Waid (co-special

administrator of Scott’s estate) sued Officer Smith, Officer

Huntsman, and the Department. They alleged claims

under 42 U.S.C. § 1983 for violation of Scott’s Fourth

Amendment right to be free from excessive force and

Rochelle Scott’s Fourteenth Amendment right to familial

association, among other claims. Defendants Smith and

Huntsman moved for summary judgment, arguing in part

that no constitutional violation occurred and that they

were entitled to qualified immunity.

The district court granted in part and denied in part

Defendants’ motion for summary judgment. Relevant

here, the district court denied qualified immunity to Smith

and Huntsman on Plaintiffs’ Fourth Amendment claim

and on Rochelle Scott’s Fourteenth Amendment claim.

Smith and Huntsman timely appealed.

7a

Appendix A

JURISDICTION

As a threshold matter, we address our jurisdiction

to hear this interlocutory appeal. A denial of summary

judgment is not ordinarily appealable because it is not a

“final decision.” See 28 U.S.C. § 1291; Ballou v. McElvain,

29 F.4th 413, 421 (9th Cir. 2022). But we may “review orders

denying qualified immunity under the collateral order

exception to finality.” Ballou, 29 F.4th at 421. The scope of

our jurisdiction is “circumscribed.” George v. Morris, 736

F.3d 829, 834 (9th Cir. 2013). We cannot consider “a factrelated dispute” over whether the evidence is “sufficient

to show a genuine issue of fact for trial.” Est. of Anderson,

985 F.3d at 731 (quoting Foster v. City of Indio, 908 F.3d

1204, 1210 (9th Cir. 2018)). But we may decide “whether

the defendant would be entitled to qualified immunity as a

matter of law, assuming all factual disputes are resolved,

and all reasonable inferences are drawn, in plaintiff’s

favor.” George, 736 F.3d at 836 (quoting Karl v. City of

Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012))

(cleaned up). In other words, we have jurisdiction when

defendants are not asking us “to redecide the facts, but

rather, to reapply the law.” Moran v. Washington, 147

F.3d 839, 844 (9th Cir. 1998).

Smith and Huntsman devote much of their briefing

to their version of events that Scott disputes. But here,

the district court denied the officers’ request for qualified

immunity because the record presents multiple genuine

issues of fact. Those include whether Scott tried to reach

for his jacket pocket before falling to the ground, whether

Scott voluntarily fell to the ground or was forced to the

ground in a takedown maneuver, how long Scott was

8a

Appendix A

in a facedown position on the ground, how long Officer

Huntsman had his knee on Scott’s back and neck, the

timing of Scott’s handcuffing, and the cause of Scott’s

death. We must accept these findings unless Plaintiffs’

“version of events is ‘blatantly contradicted by the

record.’” Orn v. City of Tacoma, 949 F.3d 1167, 1171 (9th

Cir. 2020) (quoting Scott v. Harris, 550 U.S. 372, 380, 127

S. Ct. 1769, 167 L. Ed. 2d 686 (2007)). In short, we cannot

credit Defendants’ version of the facts or “assume that

a jury would resolve factual disputes in [their] favor.”

Id. Thus, though we lack jurisdiction to redecide factual

disputes, we can evaluate whether, assuming each dispute

is resolved in favor of Plaintiffs, Defendants are entitled

to qualified immunity. Construing the facts in favor of

Plaintiffs, we hold that Officers Smith and Huntsman

are not entitled to qualified immunity for Plaintiffs’

Fourth Amendment claim. We find Smith and Huntsman

are entitled to qualified immunity for Rochelle Scott’s

Fourteenth Amendment claim.

STANDARD OF REVIEW

We review the grant or denial of summary judgment

on the ground of qualified immunity de novo. Ballou,

29 F.4th at 421. “Because the reasonableness standard

‘nearly always requires a jury to sift through disputed

factual contentions . . . summary judgment . . . in excessive

force cases should be granted sparingly.’” Torres v. City

of Madera, 648 F.3d 1119, 1125 (9th Cir. 2011) (quoting

Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)).

9a

Appendix A

DISCUSSION

To determine whether Smith and Huntsman are

entitled to qualified immunity, we ask two questions. First,

viewing the facts in the light most favorable to Plaintiffs,

did Smith and Huntsman violate a constitutional right?

Rice v. Morehouse, 989 F.3d 1112, 1120 (9th Cir. 2021).

And second, if a constitutional right was violated, was it a

clearly established right? Id. Plaintiffs assert that Smith

and Huntsman violated both their Fourth and Fourteenth

Amendment rights. For each claim, we answer these

questions in turn.

I.

Fourth Amendment Claim

A.

Smith and Huntsman violated Scott’s Fourth

Amendment rights.

“Under the Fourth Amendment, police may use

only such force as is objectively reasonable under the

circumstances.” LaLonde v. County of Riverside, 204

F.3d 947, 959 (9th Cir. 2000). To assess the objective

reasonableness of an officer’s actions, “we consider: (1)

the severity of the intrusion on the individual’s Fourth

Amendment rights by evaluating the type and amount

of force inflicted, (2) the government’s interest in the use

of force, and (3) the balance between the gravity of the

intrusion on the individual and the government’s need for

that intrusion.” Rice, 989 F.3d at 1121 (quoting Lowry

v. City of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017)

(en banc)) (cleaned up). We must consider the totality of

the circumstances “from the perspective of a reasonable

10a

Appendix A

officer on the scene, rather than with the 20/20 vision of

hindsight.” Graham v. Connor, 490 U.S. 386, 396, 109 S.

Ct. 1865, 104 L. Ed. 2d 443 (1989). After weighing the

totality of the circumstances, we find that Officers Smith

and Huntsman violated Scott’s Fourth Amendment rights.

i.

The type and amount of force used.

First, we hold that Smith and Huntsman used deadly

force. To classify the force used, we consider the specific

circumstances of the case. Rice, 989 F.3d at 1121. “Both

the nature and degree of physical contact and the risk

of harm and the actual harm experienced are relevant.”

Seidner v. de Vries, 39 F.4th 591, 597 (9th Cir. 2022)

(quoting Williamson v. City of National City, 23 F.4th

1146, 1152 (9th Cir. 2022) (cleaned up). Deadly force is

force that “creates a substantial risk of causing death or

serious bodily injury.” Smith v. City of Hemet, 394 F.3d

689, 706 (9th Cir. 2005).

Huntsman used bodyweight compression on Scott’s

back and neck during and shortly after handcuffing him.

While Smith restrained Scott’s lower body, Huntsman

kept his bodyweight on Scott’s back and neck for about

one to two minutes while Scott’s pleas turned increasingly

incoherent and breathless. Shortly after, Scott lost

consciousness. He was declared dead after paramedics

removed him from the scene. This was severe, deadly

force.

Our precedent establishes that the use of bodyweight

compression on a prone individual can cause compression

11a

Appendix A

asphyxia. Drummond ex rel. Drummond v. City of

Anaheim, 343 F.3d 1052, 1056-57 (9th Cir. 2003). In

Drummond, for example, officers “press[ed] their weight

on [the plaintiff’s] neck and torso as he lay handcuffed

on the ground.” Id. at 1056. This force was “severe and,

under the circumstances, capable of causing death or

serious injury.” Id. Drawing all reasonable inferences in

Plaintiffs’ favor, a jury could find Smith and Huntsman’s

conduct was similar deadly force. 2

ii.

The government’s interest in the use of

force.

We next evaluate the government’s interests by

considering the severity of the crime at issue, whether

the suspect poses an immediate threat to the safety of

the officers or others, and whether a suspect is actively

resisting arrest or attempting to escape. Espinosa v. City

and County of San Francisco, 598 F.3d 528, 537 (9th Cir.

2010). “These factors are non-exhaustive, and we examine

the totality of the circumstances, including the availability

of less intrusive alternatives to the force employed and

whether proper warnings were given.” Rice, 989 F.3d at

1121-22 (citations omitted). The “most important” factor is

whether the suspect posed an immediate threat. Id. at 1121

(quoting Isaveya v. Sacramento Sheriff’s Dep’t, 872 F.3d

938, 947 (9th Cir. 2017)). “However, a simple statement

2. This comparison is further bolstered by the fact that

Drummond used a stricter test than the one we apply today. After

Drummond, we relaxed our definition of deadly force to encompass

force that creates a substantial risk of serious bodily injury, rather

than only a substantial risk of death. See Smith, 394 F.3d at 705-06.

12a

Appendix A

by an officer that he fears for his safety or the safety of

others is not enough; there must be objective factors to

justify such a concern.” Deorle v. Rutherford, 272 F.3d

1272, 1281 (9th Cir. 2001).

When weighing these factors, we also take a detainee’s

mental illness into account. Drummond, 343 F.3d at

1058. “The problems posed by, and thus the tactics to be

employed against, an unarmed, emotionally distraught

individual who is creating a disturbance or resisting

arrest are ordinarily different from those involved in law

enforcement efforts to subdue an armed and dangerous

criminal who has recently committed a serious offense.”

Id. (quoting Deorle, 272 F.3d at 1282-83). Even if “an

emotionally disturbed individual is ‘acting out’ and

inviting officers to use deadly force to subdue him,” the

government interest in using such force is limited “by the

fact that the officers are confronted, not with a person who

has committed a serious crime against others, but with

a mentally ill individual.” Id. (quoting Deorle, 272 F.3d at

1283). Thus, although there is no per se rule establishing

different classifications of suspects, we have recognized

that counseling, where feasible, “may provide the best

means of ending a crisis.” Id. (quoting Deorle, 272 F.3d

at 1283).

Here, the City’s interests were limited. First, Smith

and Huntsman did not suspect Scott of a crime. Indeed,

Scott called 911 because he feared he was a victim of a

crime. And officers quickly acknowledged at the scene that

he appeared to be suffering from mental illness.

13a

Appendix A

Second, viewing the facts in the light most favorable

to Plaintiffs, Scott did not pose a danger to the officers or

others. Huntsman and Smith did not receive any warning

that Scott was dangerous or that he had threatened

himself or others. When Smith and Huntsman arrived

on the scene, Scott was alone in his apartment, and did

not threaten officers when speaking through the closed

door. Nor did he threaten his own life. After officers

persuaded Scott to exit his apartment, he still did not

threaten officers or himself. Scott stood against a wall

as ordered and made no sudden or threatening gestures

toward the officers.

Defendants argue that Scott posed a threat because

he had two weapons—a pipe and a knife. But at the

scene, Scott immediately relinquished both objects when

directed to do so, handing the knife to the officers with the

handle out. He explained openly that he was mentally ill

and paranoid and asked the officers to put him into their

patrol car. Taking the facts in the light most favorable to

Scott, a jury could find he posed no threat to the officers.

See Smith, 394 F.3d at 702 (holding that, though the

plaintiff was not completely compliant, “considering the

evidence in the light most favorable to him, a rational jury

could very well find that he did not, at any time, pose a

danger to the officers or others”).

Third, whether Scott was “actively resisting arrest”

is more complicated. Scott asked Smith and Huntsman

not to touch him, and screamed and tried to pull away

from the officers after they pulled him to the ground.

14a

Appendix A

But degree matters. Scott did not attack the officers or

anyone else, nor did he threaten to do so. Instead, he

stood where officers directed him to stand and made no

threatening movements. See id., 394 F.3d at 703 (finding

it significant that the suspect did not attack or threaten

officers although he “ignored the officers’ requests to

remove his hands from his pajamas and to place them on

his head”).

Finally, construing the facts in favor of Plaintiffs,

Smith and Huntsman ignored less intrusive alternatives

to the force they employed. Plaintiffs’ expert opined that

Smith and Huntsman had alternatives to bodyweight force.

They could have used verbal de-escalation strategies,

waited for the support of additional officers to execute a

safer “team takedown,” or waited for EMS to execute a

“soft restraint.” Smith and Huntsman employed none of

these alternatives. See Rice, 989 F.3d at 1124 (“Although

officers ‘need not avail themselves of the least intrusive

means of responding to an exigent situation,’ their

failure to consider ‘clear, reasonable and less intrusive

alternatives’ to the force employed ‘militates against

finding the use of force reasonable.’” (quoting Glenn v.

Wash. Cnty., 673 F.3d 864, 876 (9th Cir. 2011))).

In sum, because Scott was mentally ill, was not

suspected of a crime, and did not present a risk to officers

or others, the government’s interest in applying force was

limited.

15a

Appendix A

iii. The balance of interests.

Finally, we must balance the force used against the

need for such force to determine whether the force used

was “greater than is reasonable under the circumstances.”

Espinosa, 598 F.3d at 537 (quoting Santos, 287 F.3d at

854). Generally, deadly force is not permissible “unless it

is necessary to prevent escape and the officer has probable

cause to believe that the suspect poses a significant threat

of death or serious physical injury to the officer or others.”

Smith, 394 F.3d at 704 (quoting Tennessee v. Garner,

471 U.S. 1, 3, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985)). But

even non-deadly force must not to be deployed lightly.

Drummond, 343 F.3d at 1057. Force “is permissible only

when a strong government interest compels” the degree

of force used. Id. (quoting Deorle, 272 F.3d at 1280).

We hold that Smith and Huntsman were not justified in

using deadly force against Scott, a mentally ill person who

was not suspected of committing a crime and presented

little or no danger. See Garner, 471 U.S. at 8, 11 (“Where

the suspect poses no immediate threat to the officer and

no threat to others, the harm resulting from failing to

apprehend him does not justify the use of deadly force to

do so.”). Indeed, there are genuine issues of fact regarding

whether any force was necessary. See, e.g., Young v.

County of Los Angeles, 655 F.3d 1156, 1166 (9th Cir. 2011)

(officer was not justified in use of “significant force” against

a nonviolent individual suspected of a misdemeanor).

The balance of interests here is similar to Drummond,

where officers also used significant or deadly force on a

16a

Appendix A

mentally ill individual to detain him for a mental health

hold. Drummond, 343 F.3d at 1059. Like Drummond, an

officer pressed his “weight against [Scott’s] torso and neck,

crushing him against the ground.” Id. And despite his

pleas, and a lack of any apparent danger, they continued to

detain him. Id. at 1059-60. There, as here, “grievous injury

does not serve [the] objective” of taking an individual into

“custody to prevent injury to himself” when he is not

suspected of any crime. Id. at 1059. Viewing the facts in

the light most favorable to Plaintiffs, a reasonable jury

could thus find that the officers’ use of severe or deadly

force was constitutionally excessive.

B. Scott’s Fourth Amendment rights were clearly

established at the time of the violation.

Because we hold that Smith and Huntsman’s actions,

taken in the light most favorable to Plaintiffs, establish a

constitutional violation, we must next consider whether the

law was clearly established, so that a reasonable officer

would know the officers’ conduct was unconstitutional.

“Conduct violates a clearly established right if the

unlawfulness of the action in question is apparent in light

of some pre-existing law.” Ballou, 29 F.4th at 421 (quoting

Benavidez v. County of San Diego, 993 F.3d 1134, 115152 (9th Cir. 2021) (cleaned up). There need not be a case

“directly on point,” but “the constitutional question must

be ‘beyond debate.’” Ohlson v. Brady, 9 F.4th 1156, 116667 (9th Cir. 2021) (quoting Kramer v. Cullinan, 878 F.3d

1156, 1163 (9th Cir. 2018)).

Our caselaw makes clear that any reasonable officer

should have known that bodyweight force on the back of

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Appendix A

a prone, unarmed person who is not suspected of a crime

is constitutionally excessive. Long before Scott’s death,

we clearly established that it is unconstitutional to use

bodyweight force on the back and neck of a prone and

unarmed individual. See Drummond, 343 F.3d at 1059.

The law is especially clear where, as here, the officers

know the prone individual is suffering from a mental

illness and is not suspected of a crime. Id. In Drummond,

officers “pressed their weight against [an individual’s]

torso and neck, crushing him against the ground.” Id.

They “maintained that pressure for a significant period

of time” while the suspect was prone, handcuffed, “offered

no resistance,” and “repeatedly told the officers that he

could not breathe and that they were choking him.” Id. at

1054, 1063. We found that “[v]iewing the evidence in the

light most favorable to [the plaintiff], . . . the officers had

‘fair warning’ that the force they used was constitutionally

excessive even absent a Ninth Circuit case presenting

the same set of facts.” Id. at 1061. Indeed, we needed “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.” Id. at 1062.

The similarities between this case and Drummond are

striking. Scott was not suspected of a crime. Instead, he was

taken into custody because of his mental health. Though

they were presented with an individual experiencing a

mental health crisis and presenting no obvious danger to

others, Smith and Huntsman crushed Scott’s back and

neck to subdue him while handcuffing him. Scott also

cried out with increasing distress and incoherence as the

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Appendix A

officers’ force escalated. Reasonable officers would have

known that their force was not reasonable and that it

created a serious risk of asphyxiating Scott.

Defendants argue that Drummond does not control

because it clearly established that the use of bodyweight

force was excessive only on a prone and already

handcuffed individual. But construing the events in Scott’s

favor, officers used their bodyweight on Scott while he

was restrained with his hands behind his back, which is

the functional equivalent of being handcuffed. And more

critically, the officers received fair notice that their force

was constitutionally excessive despite the timing of the

handcuffing. Drummond addressed a handcuffed suspect,

but as explained above, it also opined more generally

about the use of bodyweight force on a prone individual.

See Drummond, 343 F.3d at 1061-62. Indeed, Drummond

also addressed a mentally ill and distressed individual

who was not suspected of any crime and was being taken

into custody only for his own safety. Id.

Moreover, as Drummond itself demonstrates, a

decision with identical facts is not required to clearly

establish that it is unreasonable to use deadly force when

the force is totally unnecessary to protect officers, the

public, or the suspect himself. See Hope v. Pelzer, 536

U.S. 730, 740, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002)

(There can be “notable factual distinctions between the

precedents relied on . . . so long as the prior decisions

g[i]ve reasonable warning that the conduct then at issue

violated constitutional rights.” (quoting United States v.

Lanier, 520 U.S. 259, 269, 117 S. Ct. 1219, 137 L. Ed. 2d

19a

Appendix A

432 (1997))). Though officers must be fairly on notice that

their conduct was unconstitutional, defining the “right

allegedly violated” in too much detail allows “officials, and

future defendants, to define away all potential claims.”

See LSO, Ltd. v. Stroh, 205 F.3d 1146, 1158 (9th Cir. 2000)

(quoting Kelley v. Borg, 60 F.3d 664, 667 (9th Cir. 1995))

(cleaned up). We have thus repeatedly applied Drummond

as clearly established law despite some variation in the

force presented. See, e.g., Zelaya v. Las Vegas Metro.

Police Dep’t, 682 F. App’x 565, 567 (9th Cir. 2017) (mem.)

(holding that although officers used bodyweight force

for a period shorter than the officers in Drummond,

Drummond controlled because there was a material

issue of fact regarding whether the force was used for a

“significant” period); Tucker v. Las Vegas Metro. Police

Dep’t, 470 F. App’x 627, 629 (9th Cir. 2012) (mem.) (holding

that although, unlike Drummond, the suspect resisted,

Drummond still controlled because of the similar use of

bodyweight force). 3 We do the same here. Drummond

clearly established that the officers’ use of force was

constitutionally excessive.

3. Our court’s recent decision in Perez v. City of Fresno, 98

F.4th 919 (9th Cir. 2024), does not change this analysis. There,

we found the officers were entitled to qualified immunity because

they were acting at the direction of a paramedic when they applied

their bodyweight. Id. at 926 (“Given the specific context of this

case, we cannot conclude that Drummond put the officers on fair

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

individual being restrained for medical transport, at the direction

of a paramedic working to provide medical care—was unlawful.”

(emphasis in original)). Smith and Huntsman did not rely on an

equivalent intervening decisionmaker here.

20a

Appendix A

II. Fourteenth Amendment Claim

Rochelle Scott alleges that Smith and Huntsman’s

use of force also violated her Fourteenth Amendment

substantive due process rights. We hold that Smith and

Huntsman violated Rochelle Scott’s constitutional right

to familial association, but because that right was not

clearly established, Smith and Huntsman are entitled to

qualified immunity.

A. Smith and Huntsman violated Rochelle Scott’s

Fourteenth Amendment rights.

Parents and children have a substantive due process

right to a familial relationship free from unwarranted

state interference. Hardwick v. County of Orange, 980

F.3d 733, 740-41 & n.9 (9th Cir. 2020). To show a violation

of the right to familial association under the Fourteenth

Amendment based on an officer’s use of force, a plaintiff

must establish that an officer’s conduct “shocks the

conscience.” Nicholson v. City of Los Angeles, 935 F.3d

685, 692 (9th Cir. 2019) (quoting Wilkinson v. Torres, 610

F.3d 546, 554 (9th Cir. 2010)).

Two tests govern whether an officer’s conduct “shocks

the conscience.” Ochoa v. City of Mesa, 26 F.4th 1050, 1056

(9th Cir. 2022). “Which test applies turns on whether the

officers had time to deliberate their conduct.” Id. The

“deliberate-indifference test” applies when a situation

“evolve[s] in a time frame that permits the officer to

deliberate before acting.” Porter v. Osborn, 546 F.3d 1131,

1137 (9th Cir. 2008). The more demanding “purpose-to-

21a

Appendix A

harm test” applies when a situation “‘escalate[s] so quickly

that the officer must make a snap judgment.” Id.

To decide which test to apply, we must thus ask

whether actual deliberation by the officer was “practical.”

Porter, 546 F.3d at 1137 (quoting Moreland v. Las Vegas

Metro. Police Dep’t, 159 F.3d 365, 372 (9th Cir. 1998), as

amended (Nov. 24, 1998)). But we have recognized that

deliberation may be practical even without an extended

timeline of events. In Nicholson, for example, an officer

had time to deliberate when, after seeing a teenager

with a toy gun, he jumped out of a car and fired several

shots. 935 F.3d at 693-94. The officer’s “immediate use of

force without communicating with his partner, his failure

to seek cover, and his failure to formulate a plan before

acting were” sufficient to create a genuine dispute of fact

on whether deliberation was practical. Id. at 693. The

court thus applied the deliberate indifference test. Id.;

cf. Wilkinson, 610 F.3d at 554 (distinguishing exigent

circumstances by applying the purpose-to-harm standard

where “[w]ithin a matter of seconds, the situation evolved

from a car chase to a situation involving an accelerating

vehicle in dangerously close proximity to officers on foot”).

We hold that, viewing the facts in the light most

favorable to Plaintiff, Smith and Huntsman had time

to deliberate. In other words, the encounter was not

escalating, and officers had time to consider their next

steps. Over seven minutes passed after officers arrived

on the scene before they had any physical contact with

Scott. Indeed, the officers called their sergeant to ask

for guidance before continuing the encounter. And once

22a

Appendix A

Scott exited his apartment, he moved slowly, complied

with officers’ orders, and openly explained that he was

suffering from mental illness. These circumstances gave

the officers ample time to consider their conduct before

acting, and the deliberate indifference standard applies.

Applying the deliberate indifference standard, Smith

and Huntsman violated Rochelle Scott’s Fourteenth

Amendment rights. An officer acts with deliberate

indifference by disregarding a known or obvious

consequence of their actions. Nicholson, 935 F.3d at

693. This “entails something more than negligence but

is satisfied by something less than acts or omissions for

the very purpose of causing harm or with knowledge that

harm will result.” Tatum v. Moody, 768 F.3d 806, 821 (9th

Cir. 2014) (quoting Gantt v. City of Los Angeles, 717 F.3d

702, 708 (9th Cir. 2013)). In Nicholson, for example, an

officer observed a teenager among a group of students

in uniforms and with backpacks who appeared to be

holding a gun pointed at the ground. 935 F.3d at 693. We

held that, because the suspect “was not engaged in any

threatening . . . behavior,” and was surrounded by other

minors, the officer acted with deliberate indifference when

he rushed toward the teens and fired his weapon at them

as he ran. Id.

Taking the facts in the light most favorable to Plaintiff,

Smith and Huntsman were deliberately indifferent to the

risk that their use of force could seriously injure or kill

Scott. Scott presented no immediate risk to the officers

before they initiated deadly force. And when officers took

Scott to the ground, he cried out in distress over the course

23a

Appendix A

of the encounter. After Huntsman put his bodyweight on

Scott, Scott’s cries were also increasingly muffled and

incoherent. A jury could find the use of bodyweight force

given these circumstances was deliberate indifference. Cf.

Farmer v. Brennan, 511 U.S. 825, 842, 114 S. Ct. 1970, 128

L. Ed. 2d 811 (1994) (finding when evaluating deliberate

indifference in an Eighth Amendment claim that whether

an “official had the requisite knowledge of a substantial

risk is a question of fact subject to demonstration in the

usual ways, . . . and a factfinder may conclude that [the]

official knew of a substantial risk from the very fact that

the risk was obvious”).4 Thus, construing all facts and

resolving all disputes in Rochelle Scott’s favor, Smith and

Huntsman violated her Fourteenth Amendment rights.

B. Rochelle Scott’s Fourteenth Amendment rights

were not clearly established at the time of the

violation.

Even if a constitutional violation occurred, Smith and

Huntsman are nevertheless entitled to qualified immunity

unless the constitutional right was clearly established at

the time of the officers’ conduct. Rice, 989 F.3d at 1120.

Because no analogous case existed at the time of the events

here, we hold that the district court erred by denying

Defendants qualified immunity for this claim.

We have long recognized that a child’s constitutionally

protected interest in the companionship of a parent can

4. Defendants appear to acknowledge as much, arguing that

they did not engage in “conscience shocking” behavior only by

applying the purpose-to-harm standard.

24a

Appendix A

be violated by an officer’s conscience shocking conduct.

See Hayes v. County of San Diego, 736 F.3d 1223, 122930 (9th Cir. 2013). But clearly established law cannot be

defined at such a “high level of generality.” White v. Pauly,

580 U.S. 73, 79, 137 S. Ct. 548, 196 L. Ed. 2d 463 (2017)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S. Ct.

2074, 179 L. Ed. 2d 1149 (2011)). 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 v. County of Santa Barbara,

868 F.3d 1110, 1117 (9th Cir. 2017). That is not the case

here. Although Plaintiff need not identify a factual twin,

Plaintiff identifies no authority for finding a Fourteenth

Amendment violation here, instead citing only a general

statement of the rule. 5 We have not identified any such

authority either. Smith and Huntsman are entitled to

qualified immunity for this claim.

We thus reverse the district court’s summary

judgment denying Officers Smith and Huntsman qualified

immunity because Rochelle Scott’s constitutional right

was not clearly established at the time of the violation.

But we now clarify that right going forward. See supra

Section II.A.

5. Although the facts underlying the claims may be the same,

“Fourth Amendment cases . . . do not clearly establish the contours

of . . . Fourteenth Amendment substantive due process rights.”

Nicholson, 935 F.3d at 696 & n.5.

25a

Appendix A

CONCLUSION

We affirm the district court’s denial of qualified

immunity to Smith and Huntsman as to the Fourth

Amendment claim and reverse the court’s ruling as

to the Fourteenth Amendment claim. We remand for

proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and

REMANDED. Each party shall bear its own costs on

appeal.

26a

Appendix

B UNITED STATES

APPENDIX B — ORDER

OF THE

DISTRICT COURT FOR THE DISTRICT OF NEVADA,

FILED MARCH 14, 2023

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

Case No. 2:20-cv-01872-RFB-EJY

SCOTT, et al.,

Plaintiffs,

v.

SMITH, et al.,

Defendants.

ORDER

I. INTRODUCTION

Before the Cour t is Defendants Kyle Smith,

Theodore Huntsman, and Las Vegas Metropolitan

Police Department’s (“LVMPD”) Motion for Summary

Judgment. ECF No. 19.

For the foregoing reasons, the motion is granted in

part and denied in part.

27a

Appendix B

II. PROCEDURAL BACKGROUND

Plaintiffs1 filed the Complaint on October 7, 2020.

ECF No. 1. The Complaint alleges nine causes of action:

(1) excessive force in violation of the Fourth Amendment

against Defendants Smith and Huntsman, (2) denial of

medical care in violation of the Fourth Amendment against

Defendants Smith and Huntsman, (3) denial of familial

relationship in violation of substantive due process under

the Fourteenth Amendment against Defendants Smith and

Huntsman, (4) municipal liability for an unconstitutional

custom or policy against Defendant LVMPD, (5) disability

discrimination in violation of § 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794(a), Title II of the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et. seq.,

against all Defendants, (6) municipal liability for failure to

train against Defendant LVMPD, (7) municipal liability for

ratification against Defendant LVMPD, (8) battery against

all Defendants, and (9) negligence against all Defendants.

Id. Plaintiffs seek compensatory, hedonic damages,

funeral and medical expenses, punitive damages, and

costs and fees. Id. Defendants answered on January 6,

2021. ECF No. 8. Discovery closed on January 6, 2022.

See ECF No. 18.

Defendants filed the instant Motion for Summary

Judgment on February 7, 2022. ECF No. 19. Plaintiffs

responded on April 5, 2022. ECF No. 25. Defendants

1. Plaintiff, Rochelle Scott, is decedent Roy Anthony Scott’s

surviving daughter and is suing in her individual capacity and as cospecial administrator of Scott’s estate, along with Plaintiff Fredrick

Waid, also a co-special administrator of Scott’s estate.

28a

Appendix B

replied on May 6, 2022. ECF No. 29. A hearing was held

on the motion on June 22, 2022. ECF No. 31. This Order

follows.

III. FACTUAL BACKGROUND

a.

Undisputed Facts

The Court finds the following facts to be undisputed.

Sometime in the early morning hours of March 3, 2019,

Scott called 911 for assistance. He reported there were

assailants outside of his apartment, one of whom was

possibly holding a saw. LVMPD officers, Defendants

Smith and Huntsman, were assigned to the call and

arrived at Scott’s apartment shortly thereafter. He was

never suspected of a crime.

Both officers were wearing body cameras.

Upon arrival, the officers go to Scott’s door, then knock

and announce themselves as police officers. Scott yells for

them to break his door down because there are people in

his apartment. Besides Scott’s voice, no other voices or

noises are evident from outside the door. The officers tell

Scott that they are not going to break his door down. About

three minutes after the encounter had begun, Huntsman

asks Scott, “have you been diagnosed with any mental

health diseases?” Scott’s response is unintelligible from

outside of the door where the officers are still standing.

Smith and Huntsman then walk back downstairs to

discuss what to do, as Scott has not exited his apartment.

29a

Appendix B

Smith tells Huntsman that he is not “going in” the

apartment. Huntsman agrees saying that Scott appears

“wacky.” Smith calls the officers’ assigned Sergeant,

on a cell phone. Smith explains to that person that they

arrived at the site of the call, and no one appeared to

be there except for the caller who was inside of the

apartment. While Smith is on the phone, Huntsman

shines his flashlight into the second story window where

Scott is visible. Upon completion of the call, Huntsman

confirms with Smith that both could see Scott. Huntsman

then remarks that he could see “that crazed look in his

eye—there ain’t nobody in there.” Huntsman then asks

Smith what the Sergeant said, and Smith relays that the

Sergeant told him that they could not do anything if they

did not have a cause or basis to enter. Smith then abruptly

yells toward the window at Scott: “Sir, go to the door.”

Smith then goes back up the stairs and then knocks on

the door a few more times, then yells “Police Department

come to the door.” Finally, after a few seconds, Scott opens

the door. This is approximately seven minutes after the

encounter began.

Scott is compliant and walks out of his apartment.

Smith goes back down the stairs, upon hearing the door

open. Scott appears to be holding a pipe when he comes

out of the apartment. Smith flashes his light at Scott once

he appears, points his gun at Scott, and orders Scott to

drop the pipe. Scott complies and walks downstairs. As

he walks down, Scott says twice “What am I supposed

to do.” Smith tells him “Get down here.” Scott, with a

phone visible in his hand, walks towards a wall facing

his apartment and turns to face the officers. Huntsman

30a

Appendix B

asks Scott if he has any other weapons on him. Scott

then reaches into his pocket and hands a pocketknife to

Huntsman and says “I am sorry.” Huntsman directs Scott

to turn around to face the wall. Scott tells the officers that

he has “paranoid schizophrenia.” He then asks twice, “can

you just put me in the car please.” Huntsman tells Scott

that they were “just trying to talk” to him to figure out

what is happening. Scott tells Smith that the light in his

eyes is bothering him. Smith tells Scott “my partner is

going to pat you down to make sure you don’t have any

weapons okay.” Scott then says “I am scared.” He tells the

officers that he does not want to turn his back and face

the wall because someone might get him. He says “I am

paranoid.” Smith tells Scott “You’re fine. We are out here

to help you okay.” Scott repeatedly replies, “I am not fine.”

Smith says “we are just here to help you.” Smith says that

he wants to check Scott for weapons.

The officers then approach Scott wearing gloves. The

officers approach him and put their hands on him to hold

his arms. Scott then repeatedly says in a plaintive voice

“please, please, please.” Huntsman then places Scott’s left

arm behind his back as Smith approaches from the other

side. During this time, Scott repeatedly states, “what are

you doing,” and pleads with the officers to “stop.” The

officers tell Scott to stop moving so they can handcuff him.

The officers continue to grab and hold Scott moving him

away from the wall and placing his hands behind his back.

He asks the officers “Why are you all doing this to me?”

He visibly appears increasingly concerned and scared by

the officers’ actions.

31a

Appendix B

Scott then either falls to the ground or is taken to

the ground by the officers. He begins to resist being

handcuffed by the officers, as he attempts to face them

and asks again why they are doing this to him. While

on the ground, Scott’s pleas escalate in intensity —

eventually turning to screams — as both officers grab

ahold of his arms. Specifically, the body camera footage

shows Scott initially lying on his back with the officers

holding him down and holding his hands pressed to his

body. The officers continue holding him in this position

for approximately three minutes. Scott is now screaming

over and over “please leave me alone.” Now, he is actively

resisting the officers’ attempt to handcuff him. The

officers eventually roll Scott over onto his stomach. Scott

struggles against the officers, pleading for them to leave

him alone, while the officers repeatedly tell him to stop.

The officers physically struggle with Scott. Smith then

places his weight on Scott’s buttocks and legs. Huntsman

places his weight on Scott’s back and his knee on Scott’s

neck for well over a minute. The process of handcuffing

Scott takes approximately two to three minutes.

Huntsman orders paramedics to the scene for a cut

on Scott’s lip. Officers then attempt to roll him on his

side. After a few minutes, Scott stops yelling or thrashing

around. Defendant Smith asks Scott if he is okay, Scott

does not respond. The officers then check Scott’s breath

and pulse and conduct a sternum rub. They note that Scott

appears to be alive and breathing. Huntsman contacts

the dispatch operator and requests that medical team be

expedited to the scene as Scott is having trouble breathing.

32a

Appendix B

Smith calls their Sergeant to report that Scott’s breathing

is faint.

The paramedics arrive on the scene some minutes

later. Scott is still unresponsive. At some time later, Scott

is reported to have died.

b.

Disputed Facts

The following facts are in dispute. The parties

dispute whether, just prior to falling to the ground, Scott

attempted to reach into his jacket pocket, prompting

Huntsman to place Scott’s left arm behind his back. They

dispute whether Scott voluntarily dropped to the ground

or fell or was taken down to the ground in a takedown

maneuver. Further, they dispute whether Scott resisted

the officers with extraordinary strength. The parties also

dispute the duration of how long Scott was face down in

a prone position on the ground, how long Huntsman had

his knee on Scott’s back, the timing of the handcuffing,

and how long Huntsman had his knee on Scott’s neck.

Moreover, they dispute whether the officers’ use of force

caused Scott to asphyxiate. Lastly, the parties dispute

Scott’s cause of death, including whether cardiac failure,

resulting from hypoxia caused by the officers’ use of force,

was a proximate cause of his death.

IV. LEGAL STANDARD

Summa r y judg ment is appropr iate when the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

33a

Appendix B

show “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); accord Celotex Corp. v. Catrett,

477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

When considering the propriety of summary judgment,

the court views all facts and draws all inferences in the

light most favorable to the nonmoving party. Gonzalez

v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014).

If the movant has carried its burden, the non-moving

party “must do more than simply show that there is some

metaphysical doubt as to the material facts . . . . Where

the record taken as a whole could not lead a rational trier

of fact to find for the nonmoving party, there is no genuine

issue for trial.” Scott v. Harris, 550 U.S. 372, 380, 127 S.

Ct. 1769, 167 L. Ed. 2d 686 (2007) (alteration in original)

(internal quotation marks omitted). It is improper for

the Court to resolve genuine factual disputes or make

credibility determinations at the summary judgment

stage. Zetwick v. County of Yolo, 850 F.3d 436, 441 (9th

Cir. 2017) (citations omitted).

V. DISCUSSION

a.

Federal Law Claims

The Court first addresses Plaintiffs’ federal law

claims. For the reasons discussed below, the Court grants

Defendants summary judgment only against Plaintiffs’

second cause of action for denial of medical care but denies

it as to the rest of the federal law claims.

34a

Appendix B

i.

Excessive Force (First Cause of Action)

Defendants seek summary judgment as to the claim

under the First Cause of Action that Defendants Smith

and Huntsman used excessive force against Scott in

violation of the Fourth Amendment.

To make out a prima facie case under 42 U.S.C. § 1983,

a plaintiff must show that a defendant: (1) acted under

color of law, and (2) deprived the plaintiff of a constitutional

right. Borunda v. Richmond, 885 F.2d 1384, 1391 (9th

Cir. 1989).

Claims of excessive force are analyzed under the

Fourth Amendment’s “objective reasonableness” standard.

Graham v. Connor, 490 U.S. 386, 395-97, 109 S. Ct. 1865,

104 L. Ed. 2d 443 (1989). Under this standard, “the 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. In determining whether a particular use of

force was unreasonable and thus in violation of the Fourth

Amendment, a court is to consider: “(1) the severity of the

intrusion on the individual’s Fourth Amendment rights

by evaluating the type and amount of force inflicted,

(2) the government’s interest in the use of force, and (3)

the balance between the gravity of the intrusion on the

individual and the government’s need for that intrusion.”

Williamson v. City of National City, 23 F.4th 1146, 1151

(9th Cir. 2022) (citing Graham, 490 U.S. at 397).

Defendants argue that Smith and Huntsman used

objectively reasonable force in performing a lawful

35a

Appendix B

detention of Scott. First, the officer’s brief use of body

weight to detain Scott did not constitute deadly force.

Second, the officers had a legitimate interest in using

force against Scott because they were attempting to take

him into custody for a mental health hold pursuant to

Nevada Revised Statute § 433A.160. 2 Third, the officers

reasonably perceived Scott as a threat because he had

already possessed two weapons and was objecting to a

pat down intended to ensure he had no other weapons.

For support in finding that the force the officers

used was reasonable, Defendants rely on Gregory v.

City of Maui, 523 F.3d 1103, 1105 (9th Cir. 2008). There,

the decedent, who was mentally distressed and under

the possibly influence of drugs, was wielding a pen as

a weapon; the officers verbally ordered him to drop the

pen; and when he refused, the officers wrestled him to the

ground and handcuffed him. Id. at 1106-07. Throughout

the struggle, he kept shouting that he could not breathe

but continued to fight the officers. Id. at 1105. When the

officers finally handcuffed him, they discovered that he

2. Nevada Revised Statute § 433A.160(1)(a), in its current

formulation, authorizes the police to place a person they have

“probable cause to believe” is “in a mental health crisis . . . on a mental

health crisis hold by” “[t]aking the person into custody without a

warrant for assessment, evaluation, intervention and treatment at a

public or private mental health facility or hospital.” In Nevada, this

is known as a “Legal 2000” detention. At the time of the March 2019

incident in this case, however, the statute only authorized an officer

to take a person into custody if the officer had “probable cause to

believe that person has a mental illness, and because of that illness,

is likely to harm himself or herself or others if allowed his or her

liberty.” Nev. Rev. Stat. § 433A.160(1)(a) (emphasis added) (amended

2019); see also 2019 Nev. Stat. 345, 351.

36a

Appendix B

was not breathing. Id. They were unable to resuscitate

him. Id. The Ninth Circuit upheld the dismissal of the

case, reasoning that the use of force was not excessive in

light of: the decedent’s aggressive behavior throughout the

confrontation, his resistance when they tried to take his

pen, the officers resorting to physical confrontation only

after verbal requests failed, and the lack of evidence that

the officers used weapons. Id. at 1107-08.

Defendants also assert that this case is unlike

Drummond v. City of Anaheim, 343 F.3d 1052 (9th

Cir. 2003), an excessive force case involving a decedent

who suffered from schizophrenia. In Drummond, the

decedent was “hallucinating and in an agitated state”

in a convenience store parking lot, and the defendant

officers were called to take him into custody to “help

protect” him. Id. at 1054. Even though the decedent had

not committed a crime, was not a danger to himself or

others, and did not offer resistance, the officers knocked

him to the ground and placed a knee to the back of

his neck as they put him into protective custody. Two

officers continued to place their entire body weight on the

decedent’s back and neck, for several minutes after he

was restrained, controlled, prone, no longer a threat, and

pleading for air. The decedent suffered a heart attack and

fell into a permanent coma. The Ninth Circuit held that,

based upon the undisputed and disputed facts asserted

by the plaintiff, the force used was unconstitutionally

excessive, and reversed a grant of summary judgment

in favor of defendant police officers. Here, Defendants

assert that Drummond stands for the proposition that it

is unconstitutional for multiple officers to put their entire

body weight on the torso and neck of a handcuffed, prone,

37a

Appendix B

and non-resisting suspect for several minutes. Defendants

contend that Smith and Huntsman did not use force until

Scott resisted their efforts to pat him down. Even then,

the officers only briefly applied weight to Scott’s back and

buttocks to control him as he escalated his resistance. The

officers carefully monitored the situation and only used

necessary, minimal force, during the 90-second struggle,

as indicated by the fact that they never used any tools,

punches, kicks, or strikes against Scott.

In opposition, Plaintiffs contend that the force the

officers subjected Scott to during their interaction with

him was not objectively reasonable. First, the officers used

unreasonable force when they used a takedown maneuver

on Scott because there was no government interest to

justify applying such force, as Scott had committed no

criminal offense. In fact, the Ninth Circuit has held that

individuals have a right to be free from the application of

force when engaging in passive resistance, which is all

Scott engaged during his encounter. Indeed, he had only

called 911 seeking assistance during a mental health crisis.

Second, the officers used unreasonable force when they

applied their bodyweight to Scott, after he was already

prone on the ground.

The Court concludes that a jury could find that the

officers’ use of force in this case was not objectively

reasonable.

1. Type and Amount of Force

A jury could find that the severity of intrusion on

Scott’s Fourth Amendment rights was significant based

on the type and amount of force inflicted. Under this

38a

Appendix B

consideration, a court assesses the “specific factual

circumstances of the case in classifying the force used.

The nature and degree of physical contact are relevant to

this analysis, as are the risk of harm and the actual harm

experienced.” Williamson, 23 F.4th at 1151-52 (citations

omitted).

The Court finds that, based upon the undisputed and

disputed facts, the force in this case escalated to become

a severe and substantial intrusion on Scott and his rights.

The officers began by ordering him out of the apartment.

While Scott was passive, simply standing against the wall,

the officers escalated the force and intrusion by grabbing

Scott without his consent and against his will. They then

held his arms by his sides. The officers then allegedly used

a takedown tactic which forced Scott to the ground. They

continued to hold Scott while on the ground, keeping one

of his arms pinned behind him while pressing his other

arm to this stomach torso so he could not control his arms

and to keep him pinned to the ground. Initially, he was

on his back with the officers pinning him down by using

the exertion of force against him. As Scott continued to

plead with the officers and to attempt to get up from the

ground, the officers forced him over on his stomach. Both

officers placed their body weight on Scott, as he lay prone

on his stomach. While he could move his arms and legs,

the officers’ body weight and strength completely pinned

and held him to the ground. While he was pinned in this

position, Huntsman placed his knee and body weight on

Scott’s neck.

Further, the Court finds that the risk of harm and

actual harm to Scott from the use of force was substantial.

39a

Appendix B

Taking the facts in the light most favorable to Plaintiffs

and their expert, the Court concludes that a jury could

find that the use of force by the officers had the potential

for fatal consequences, and that it in fact caused his death.

Plaintiffs’ expert opined that exerting substantial force

in the form of an officers body weight on a person’s neck

who was in Scott’s position can have catastrophic and fatal

consequences, even if only done for several seconds. While

Defendants and their expert dispute that the officers use

of force contributed to Scott’s death, it is not the role of

the Court at this stage to resolve factual disputes and

make credibility determinations.

At bottom, the Court finds that, based upon the record,

there are genuine issues of disputed fact as to the type

and amount force used. There is a genuine issue of fact

as to whether the officers used force to bring him down,

or whether he voluntarily fell to the ground. There is also

a fact issue as to the severity of the positional restraint

used by the officers. There is also a genuine dispute as

to the length of time and amount of pressure that was

exerted on Scott’s neck. Finally, there is dueling expert

testimony regarding the impact of Huntsman’s use of force

on Scott’s back and neck. The genuine factual disputes

underlying this consideration prevent the Court from

granting summary judgment.

2.

Government Interest

The Court further finds that there are genuine issues

of disputed fact as to the government’s interest in the use

of force against Scott. Assuming the facts in the light

most favorable to Plaintiffs, a jury could find that there

40a

Appendix B

was de minimis or no government interest in the use of

force. In evaluating the governmental interest, the Court

“generally considers factors including (a) the severity of

the suspect’s alleged crime; (b) whether the suspect posed

an immediate threat to the officers’ safety; and (c) whether

the suspect was actively resisting arrest or attempting to

escape.” Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d

938, 947 (9th Cir. 2017). “Among these considerations, the

most important is the second factor—whether the suspect

posed an immediate threat to others.” Williamson,

23 F.4th at 1153 (internal quotation marks omitted).

Nevertheless, these factors are not exclusive, and the

Court must consider the totality of the circumstances.

Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010).

First, as to the most important factor in the analysis,

the Court finds that, viewing the evidence in a light most

favorable to Plaintiffs, Scott posed no threat to the officers

or anyone else during this incident. The officers had not

received any information that Scott had threatened or

was threatening anyone. Upon arriving at the scene,

Scott was alone in his apartment and did not threaten

the officers during their communications through the

door. Instead, it was the officers who ordered him out of

his apartment after he said that people were after him.

When he eventually emerged from the apartment, he

immediately dropped, upon command, the pipe he had in

his hand. He never threatened the officers with it.

Furthermore, after leaving his apartment, Scott

continued to behave in a nonthreatening manner. He stood

against the wall as ordered and made no threatening

41a

Appendix B

gestures toward the officers. As he stood against the

wall, he spoke to the officers in calm and pleading tone.

When questioned about whether he had weapons, he

pulled a pocketknife from his pants and handed it to the

officers. He had not threatened the officers, anyone else

or even himself with any weapon, including the pipe or

pocketknife, throughout their encounter. He told them he

suffered from schizophrenia, was paranoid, and scared. At

that moment, he was not a threat to anyone and there was

no immediate need for the officers to advance on him and

place their hands on him when they did. At each stage of

the encounter, it was the officers who escalated the level

of force, not Scott. The undisputed and disputed facts

demonstrate that he posed no threat to the officers when

they initiated and escalated their use of force. As the Ninth

Circuit has clearly proclaimed, “force is only justified

when there is a need for force.” Blankenhorn v. City of

Orange, 485 F.3d 463, 481 (9th Cir. 2007) (interpreting

Graham). Scott’s nonthreatening manner did not justify

the officers’ use of force.

Second, the Court concludes that a jury could find

that the severity of the crime in this case did not warrant

the force used by the officers. Specifically, based upon

the undisputed and disputed facts taken in the light most

favorable to Plaintiffs, Scott had not committed any crime

at the time that the officers initiated their use of force,

even as they escalated their use of force against him. It

is undisputed that the officers never observed a crime

committed by Scott nor were they told by the 911 radio

dispatcher that Scott had committed a crime. He never

threatened them with a weapon or with force. He also

42a

Appendix B

never threatened to harm himself. Indeed, Defendant

Smith was the one who ordered Scott out of the apartment

which started the incident. Thus, the officers observed no

crime that justified their use of force at all.

The Court rejects Defendants’ assertion that the

officers’ level of force was justified as a matter of law

by their need to affect a Legal 2000 detention under

Nevada law. See NRS § 433A.160(1)(a) (amended 2019).

At the time of the encounter in this case, the version of

the statute in force only authorized an officer to take

a person into custody if there was “probable cause to

believe that person has a mental illness, and because of

that illness, is likely to harm himself or herself or others

if allowed his or her liberty.” Id. (emphasis added). The

record does not support a finding by this Court that the

officers had probable cause to believe that Scott was likely

to harm anyone, including himself, if left at his liberty.

He had not threatened anyone. He had been compliant

and passive with the officers until they grabbed him. He

told the officers that he did not want to face the wall, and

that he was feeling paranoid. In fact, at the moment the

officers grabbed him and allegedly took him down, there

was no apparent reason to use force in that moment. Even

after the officers grabbed him and could tell that he had

no weapons, they could have released their grip upon

him. While it is undisputed that Scott had called police

and might have been seeking assistance, these facts by

themselves do not establish the level of probable cause set

forth in the statute, at that time, to detain Scott. Id. At

best, there is a genuine issue of disputed fact as to whether

the officers had probable cause to take Scott into custody.

This dispute prevents a grant of summary judgment.

43a

Appendix B

Thus, even if the officers’ intent was to effect a

detention for his benefit, assuming the facts in Plaintiffs’

favor, it was clear that their actions were only exacerbating

his distress and were not justified as a matter of law.

Third, the Court finds that a jury could conclude that,

even if Scott was resisting arrest, he had a reasonable

basis for doing so. “[A] person has a limited right to offer

reasonable resistance to an arrest that is the product of

an officer’s personal frolic. That right is not triggered by

the absence of probable cause, but rather by the officer’s

bad faith or provocative conduct.” Blankenhorn, 485 F.3d

at 479. As an initial matter, the Court has just found that

there are genuine issues of disputed fact as to whether

the officers even had legal authority to detain Scott, let

alone arrest him. Moreover, the Court has found that it is

undisputed that the officers did not have a factual basis for

effecting a lawful arrest. The officers never observed Scott

commit a crime nor were they told that he had committed

one. Thus, there are genuine issues of disputed fact as to

whether Scott’s resistance was itself lawful opposition to

an unlawful detention and whether the officers’ use of force

constituted “bad faith or provocative conduct.” This too

prevents a grant of summary judgment as to this claim.

3.

Balance of Interests

Next, the Court finds, for the reasons previously

stated in this order, that a jury could find that the

balance of interest heavily weighs in favor of Scott as

the government had minimal or no interest in the use

of force implemented, because Scott posed no threat to

anyone at the time that severe, and ultimately lethal,

44a

Appendix B

force was used against him. To put it directly, a jury

could find the gravity of the intrusion was significant

given Scott’s death, and that the government’s need for

intrusion was minimal given the lack of a threat Scott

presented. Indeed, a jury could reasonably determine that

there was no need to use any force against Scott. As the

Ninth Circuit in Drummond and Glenn v. Washington

County, explained, there is a limited government interest

in using force against an individual who is experiencing

a mental health crisis but who poses no physical threat,

particularly when the purpose of the interaction is to

take the individual into a mental health hold for his or

her protection and benefit. See 343 F.3d 1058; 673 F.3d

864 (9th Cir. 2011). In terms of the officers’ attempt to

assist Scott, use of force does not become reasonable

simply because the objective is to provide assistance to a

person in mental distress. In Drummond, for instance,

the Court observed that Drummond “was a mentally

disturbed individual not wanted for any crime, who was

being taken into custody to prevent injury to himself,”

such that “causing him grievous injury d[id] not serve that

objective in any respect.” 343 F.3d at 1059. Again, at best,

there is a genuine issue of disputed fact as to whether the

balance of interests here would support the officers’ use

of force given the government’s minimal interest here.

4.

Consideration of Alternatives

Finally, the Court finds that one additional, but

salient consideration, must be considered in its objective

reasonableness analysis: the availability of other strategies

that involved less or no force. In analyzing the objective

45a

Appendix B

reasonableness of a particular use of force, courts may

take into account whether the officer considered the

existence of alternative tactics, if any, to effect an arrest

or detention. Bryan, 630 F.3d at 831. In this instant case,

the Court finds that, based upon the undisputed and

disputed facts, there were alternative less forceful tactics

that the officers could have used. As Scott posed no threat

to anyone or himself, there was no immediate need to take

him into custody. Accordingly, rather than grab Scott and

allow him to be taken to the ground, the officers simply

could have talked to him until they felt he was more calm

or until they reached a mutually agreeable approach to

take him to a mental health facility.

In sum, the Court finds that, based on all these

considerations, there are genuine factual disputes as to

whether the officers used excessive force against Scott

that prohibit it from granting Defendants’ summary

judgment on this claim.

ii.

Qualified Immunity

The Court rejects the Defendants’ assertion of

qualified immunity in this case.

“ 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.” Pearson v. Callahan, 555 U.S.

223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009).

46a

Appendix B

Qualified immunity is an immunity from suit rather

than a defense to liability, and it “ensures that officers are

on notice their conduct is unlawful before being subjected

to suit.” Tarabochia v. Adkins, 766 F.3d 1115, 1121 (9th

Cir. 2014). In deciding whether officers are entitled to

qualified immunity, courts consider, taking the facts

in the light most favorable to the nonmoving party, (1)

whether the facts show that the officer’s conduct violated

a constitutional right, and (2) if so, whether that right was

clearly established at the time. Id.

Under the second prong, courts “consider whether

a reasonable officer would have had fair notice that the

action was unlawful.” Id. at 1125 (brackets in original

omitted). “This requires two separate determinations:

(1) whether the law governing the conduct at issue was

clearly established and (2) whether the facts as alleged

could support a reasonable belief that the conduct in

question conformed to the established law.” Green v.

City and County of San Francisco, 751 F.3d 1039, 1052

(9th Cir. 2014). “A Government official’s conduct violates

clearly established law when, at the time of the challenged

conduct, ‘[t]he contours of [a] right [are] sufficiently clear’

that every ‘reasonable official would have understood

that what he is doing violates that right.’” Ashcroft v.

al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 179 L. Ed. 2d

1149 (2011) ((brackets in original) (quoting Anderson v.

Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d

523 (1987)). While a case directly on point is not required

for a right to be clearly established, “existing precedent

must have placed the statutory or constitutional question

beyond debate.” Id. Further, the right must be defined at

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Appendix B

“the appropriate level of generality . . . [, and the court]

must not allow an overly generalized or excessively

specific construction of the right to guide [its] analysis.”

Cunningham v. Gates, 229 F.3d 1271, 1288 (9th Cir.

2000); see also Ashcroft, 563 U.S. at 741-42. The plaintiff

bears the burden of proving that the right was clearly

established. Tarabochia, 766 F.3d at 1125.

In deciding a claim of qualified immunity where a

genuine issue of material fact exists, the court accepts

the version asserted by the non-moving party. Ellins v.

City of Sierra Madre, 710 F.3d 1049, 1064 (9th Cir. 2013).

Summary judgment must be denied where a genuine issue

of material fact exists that prevents a finding of qualified

immunity. Sandoval v. Las Vegas Metro. Police Dep’t, 756

F.3d 1154, 1160 (9th Cir. 2014).

Defendants argue that they are entitled to qualified

immunity because the officers’ use of force was reasonable.

They contend that the officers did not use deadly force,

and no court has ever held that brief use of body weight to

control a resisting suspect prior to handcuffing is deadly

force. Rather, they argue, that the Ninth Circuit’s caselaw

on positional asphyxia holds that officers can use body

weight to control and restrain a prone resisting suspect,

but that officers should remove all body weight once the

suspect is handcuffed and no longer a threat. The officers,

Defendants assert, did that here. Second, Defendants

argue that they are entitled to qualified immunity because

the law regarding the officers’ use of force was not clearly

established. According to them, no Supreme Court or

Ninth Circuit case put the officers on notice that their

48a

Appendix B

use of bodyweight under the facts and circumstances of

this case could be unconstitutional. The Court disagrees.

The Court first finds that Plaintiffs have presented

facts demonstrating that Defendants’ alleged conduct

violated Scott’s constitutional rights. In deciding whether

Defendants may assert qualified immunity where facts are

disputed, the Court accepts Plaintiffs’ version of events

as the non-moving party. Based on Plaintiffs’ assertions,

Defendants Smith and Huntsman violated Scott’s Fourth

Amendment right by using excessive force, resulting in

death, when they employed force against an individual

going through a mental health crisis who posed no threat,

was compliant and passive with the officers, but who was

nonetheless subject to being grabbed and forced to the

ground unexpectedly and against his will. At the time

force was initiated against him, he had committed no crime

and there was no legal basis to take him into custody under

Nevada law for a Legal 2000 detention. He pleaded with

the officers to leave him alone and release him, as their use

of force, without a legal basis, escalated. What is more, as

Scott became increasingly distressed and panicked, the

officers continued to escalate the force by rolling him on

his stomach and placing their body weight on him. As a

result, one of the officers placed his body weight on Scott’s

back and neck for several minutes causing his ultimate

death from hypoxia.

The use of force alleged by Plaintiffs is unconstitutional.

First, it is unconstitutional to use force when force is not

legally justified. As the Ninth Circuit has held “force is

only justified when there is a need for force.” Blankenhorn,

485 F.3d at 481; see also Andrews v. City of Henderson, 35

49a

Appendix B

F.4th 710, 719 (9th Cir. 2022) (explaining that Blankenhorn

established that it was unconstitutional to take down and

pile on top of a suspect who had been calm and posed no

threat to officer safety). Here, the Court finds that the

officers sought to use force to detain Scott when they had

no legal basis to do so, as he had committed no crime and

did not even satisfy the threshold for a Legal 2000 arrest.

The Court further finds that, even if Scott was subject

to a Legal 2000 arrest, it was unconstitutional for them

to use substantial or nontrivial force on a passive and

compliant individual like Scott. See Bryan, 630 F.3d

at 829-830. Officers may not subject an individual to

nontrivial force when he has not resisted, or has merely

engaged in passive resistance to, an officer’s commands.

See id.; see also Gravelet-Blondin v. Shelton, 728 F.3d

1086, 1093 (9th Cir. 2013) (“The right to be free from

the application of non-trivial force for engaging in

mere passive resistance was clearly established prior

to 2008”); Nelson v. City of Davis, 685 F.3d 867, 881-82

(9th Cir. 2012) (acknowledging that the Ninth Circuit has

“recognized that a failure to fully or immediately comply

with an officer’s orders neither rises to the level of active

resistance nor justifies the application of a non-trivial

amount of force”). Assuming the facts in Plaintiffs’ favor,

there was no need or legal basis to initiate force against

Scott, and there certainly was no need or basis to escalate

that force with the takedown maneuver or the use of body

weight on his back and neck. Separately, there is also a

genuine issue of fact as to whether any resistance by Scott

could be construed as a lawful opposition to an unlawful

detention. See Blankenhorn, 485 F.3d at 479.

50a

Appendix B

In addition, it is unconstitutional for an officer to use

substantial force against an individual suspected of a

minor crime and who posed no threat to officer safety. See

Young v. County of Los Angeles, 655 F.3d 1156, 1168 (9th

Cir. 2011) (“The principle that it is unreasonable to use

significant force against a suspect who was suspected of

a minor crime, posed no apparent threat to officer safety,

and could not be found to have resisted arrest, was thus

well-established in 2001. . . .”). In this case, Scott was not

suspected of even committing a minor crime. Rather, he

was allegedly being taken in custody for his own benefit

— without a legal basis. Under such circumstances, the

use of force, especially the substantial force employed in

this case, is unconstitutional.

As for the second prong of the qualified immunity

inquiry, the Court finds that Plaintiffs have also met

their burden in showing that Defendants violated

clearly established rights. The cases cited above in

the Court’s discussion regarding the first prong of the

qualified immunity analysis demonstrate that the law

regarding Defendants’ unconstitutional conduct was

clearly established at the time of the officer’s March 2019

encounter with Scott. See, e.g., Blankenhorn, 485 F.3d at

481; see also Andrews, 35 F.4th at 719; Young, 655 F.3d

at 1168.

The Court disagrees with Defendants that the law

was not clearly established as to their conduct in this case.

Defendants’ qualified immunity analysis focuses almost

exclusively on the application of force to Scott’s neck.

The Court, however, must consider the entire interaction

between Scott and the defendants when determining the

51a

Appendix B

objective reasonableness of force and the applicability

of qualified immunity. The Court also disagrees with

Defendants’ narrow construction of the principle clearly

established in Drummond. It would be anathema to the

qualified immunity jurisprudence for the Court to import

a specific factual timeframe for an nontrivial use of force

in this case, i.e., a knee pressed with substantial pressure

to the neck of an individual, as being clearly (or not)

established, because the qualified immunity inquiry does

not require that level of detail, see Gates, 229 F.3d at 1288,

and in this case, there are genuine issues of disputed fact

as to the extent of the force and its duration, see Sandoval,

756 F.3d at 1160.

Separately, the Court finds that qualified immunity

must also be denied because there are genuine issues of

disputed fact regarding: a.) whether there was probable

cause to even detain Scott under Nevada law, b.) whether

Scott exhibited any conduct or behavior that warranted

even placing hands on him, c.) whether the officers used a

takedown maneuver on Scott to force him to the ground,

d.) how actively Scott was resisting the officers at various

stages of the encounter, e.) how long Huntsman’s knee

was on Scott’s neck, f.) when Scott was subdued and

handcuffed, and g.) whether there were less intrusive

or nonintrusive tactics available to the officers. These

disputes require the Court to deny qualified immunity

to the Defendants. Id.

Accordingly, the Court denies Defendants’ qualified

immunity defense and motion for summary judgment on

this claim.

52a

Appendix B

iii. Denial of Medical Care (Second Cause of

Action)

Defendants contend first that it is undisputed that the

officers met their constitutional obligations for provision

of medical care to Scott. They assert that one minute and

thirty seconds after Scott was handcuffed, the officers

requested medical for precautionary reasons. At the time

of the medical request, Scott had not complained of injury

nor was he having difficulty breathing. When Scott showed

signs of medical distress, Defendant Huntsman requested

that medical expedite. Throughout the encounter the

officers monitored Scott’s breathing and pulse and

provided updates. Therefore, Defendants argue, the

officers met their constitutional obligations to promptly

summon medical assistance. Second, Defendants assert

that, at a minimum, there is no clearly established law

prohibiting the way the officers handled Scott’s medical

treatment.

The Fourth Amendment requires that law enforcement

officers provide objectively reasonable post-arrest care.

Tatum v. City and County of San Francisco, 441 F.3d

1090, 1098-99 (9th Cir. 2006). Plaintiffs concede this claim

cannot survive summary judgment and abandon it. The

Court therefore grants Defendants summary judgment

as to this claim.

iv.

Denial of Familial Relationship (Third

Cause of Action)

Defendants assert that the officers did not engage

in sufficiently “conscience shocking” behavior to

establish a Fourteenth Amendment denial of familial

53a

Appendix B

relationship claim. The officers were only attempting

to lawfully handcuff Scott and, once their task was

completed, immediately placed him into the recovery

position and summoned medical. There is no evidence the

officers intended to harm Scott or acted with deliberate

indifference towards his health. Plaintiffs, on the other

hand, contend that the officers acted with deliberate

indifference to Scott’s needs. There was no urgency for

them to act because Scott never threatened or attacked

them. He merely sought to avoid being touched and

handcuffed. Thus, by using excessive force against him

while he was experiencing a mental health crisis, they

acted with deliberate indifference. All this, Plaintiffs

assert, is sufficient to establish a claim for Fourteenth

Amendment deprivation of familial relationship.

The Court concludes that a jury could find that the

officers acted with deliberate indifference to Scott’s needs

in violation of Plaintiffs’ substantive due process right to

a familial relationship.

A substantive due process claim may be asserted

by both the parents and children of a person killed by

law enforcement officers. Curnow v. Ridgecrest Police,

952 F.2d 321, 325 (9th Cir. 1991). “[O]fficial conduct

that shocks the conscience in depriving parents [or

children] of that interest is cognizable as a violation of

due process.” Jones v. Las Vegas Metro. Police Dep’t, 873

F.3d 1123, 1132-33 (9th Cir. 2017) (internal quotations

marks omitted). In determining whether excessive

force shocks the conscience in this context, the court

must first ask “whether the circumstances are such that

‘actual deliberation [by the officer] is practical.’” Porter

v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2007) (quoting

54a

Appendix B

Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365,

372 (9th Cir. 1998)). Where actual deliberation is practical,

then an officer’s “deliberate indifference” may suffice to

shock the conscience. Osborn, 546 F.3d at 1137. The term

“deliberation” is not to be interpreted in a narrow, literal,

or technical sense. See Wilkinson v. Torres, 610 F.3d

546, 554 (9th Cir. 2010). On the other hand, if an officer

is forced to act quickly because of an escalating situation

or the evasive actions of a suspect, then it will be deemed

that an insufficient period of time for deliberation existed

and the heightened purpose to harm standard will apply.

See Tan Lam v. City of Los Banos, 976 F.3d 986, 1003-04

(9th Cir. 2020); Wilkinson, 610 F.3d at 554. Thus, where

a law enforcement officer “must make a snap judgment”

because of an escalating situation, his conduct may only be

found to shock the conscience if he acts with a purpose “to

cause harm unrelated to the legitimate object of arrest.”

Osborn, 546 F.3d at 1137, 1140.

Here, Plaintiffs’ theory is that the officers acted

with deliberate indifference to Scott’s needs, and that

such deliberate indifference establishes the “shocks the

conscience” requirement for the purposes of establishing

a Fourteenth A mendment deprivation of familial

relationship claim. In contrast, Defendants’ theory is that

this case involves the purpose to harm standard because

Smith and Huntsman were required to make split-second

decisions while lawfully arresting Scott. The Court finds

that, based upon the undisputed facts, the officers had

sufficient time and lack of exigency such that they had

time to deliberate.

55a

Appendix B

Nine minutes pass between the time the officers arrive

on the scene and the time they decide to place their hands

on Scott. More specifically, almost six minutes pass from

the time the officers arrive on the scene before Huntsman

asks Smith regarding their Sergeant’s assessment of their

initial encounter with Scott. Calmly, Smith relays that

the Sergeant told him that they could not do anything if

they did not have a cause or basis to enter. Both officers,

while shining their flashlights at Scott’s window at

different times, acknowledge seeing him inside, Smith

even determining that Scott “looks normal.” After the

call with the Sergeant, Smith and Huntsman spend more

than a minute trying to get Scott to open the door until

Scott finally does. More than two minutes pass between

the time Scott opens the door and Huntsman grabs

Scott’s left arm. During these more than two minutes,

Scott complies with Smith’s order to drop the pipe in his

hand, asks two times what he is supposed to do, hands

Huntsman the pocketknife he had in his pocket, tells the

officers he has “paranoid schizophrenia,” asks to be put

in the car, complains about the light being shined in his

face, explains he is paranoid and therefore does not feel

comfortable turning towards the wall to be pat down, and

then, in a calm demeanor, states that he is not fine, and

finally, asks if he can take off his shirt.

Before Huntsman grabs Scott’s left arm, Scott was

not acting in a manner that would require either officer

“to ‘act decisively,’ “without the luxury of a second chance’

to address a life-threatening situation.” Moreland, 159

F.3d at 372. In fact, after the officers arrived on the scene,

56a

Appendix B

they had sufficient time to speak with Scott, assess the

scene, and call their Sergeant. Further, they did not need

to order Scott out of his apartment, nor did they have the

legal authority to detain him at that point. Nevertheless,

after Scott came out of his apartment, he did not threaten

anyone, including himself. He was passive and compliant.

He admitted to suffering from schizophrenia and being

paranoid. He attempted to calmly interact with the

officers. At the time the officers their initiated contact

with Scott, and as they continued to escalate their force,

there was no threat to anyone or a legal need to initiate or

escalate such force. Even as Scott pleaded with the officers

to leave him alone and release him, the officers continued

to escalate their use of force despite its clear detrimental

effect on his mental state. Accordingly, the facts show that

the officers had sufficient time to deliberate before they

decided to use and escalate force against Scott. Cf. Greer

v. City of Hayward, 229 F. Supp. 3d 1091, 1108 (N.D. Cal.

2017) (“Here, the officers had time to deliberate while they

lay on Greer’s back as he struggled to breathe.”); Wroth

v. City of Rohnert Park, No. 17-CV-05339-JST, 2019 U.S.

Dist. LEXIS 68068, 2019 WL 1766163, at *9 (N.D. Cal.

Apr. 22, 2019) (“[O]nce officers have subdued a suspect

to the point that there is no longer a threat, it becomes

practical to deliberate about the type and degree of force

to use in continuing to restrain the suspect.”).

Next, applying the deliberate indifference standard

and viewing the evidence in a light most favorable to

Plaintiffs, the Court finds that there are genuine issues of

fact for a jury to resolve, for the purposes of establishing

whether the officers acted with deliberate indifference.

57a

Appendix B

For instance, there is dueling evidence in the record

that a jury must weigh as to: (a) whether use of force

(both the takedown and the restraint) on Scott was at all

necessary; (b) whether there were opportunities to use

lesser intrusions to subdue Scott; and (c) whether the

continued use of force on Scott’s neck exhibited deliberate

indifference when Scott began to cry out with increasing

intensity while pinned to the ground. Therefore, there

are material factual disputes in the record as to whether

the officers acted with deliberate indifference. Further,

assuming the facts in Plaintiffs’ favor, a jury could find that

the officers acted with deliberate indifference in a nonemergency situation, or that they acted with a purpose

to harm Scott.

In sum, genuine issues of fact remain as to Plaintiffs’

denial of familial relationship claim.

Lastly, the Court finds that Defendants have failed to

show that they are entitled to qualified immunity on this

claim. Once again, the Court accepts Plaintiffs’ version

of events as the non-moving party in deciding whether

Defendants are entitled to qualified immunity where facts

are disputed. As to the first prong, the Court incorporates

by reference its analysis above finding that actual

deliberation was practical, that the officers had sufficient

time to deliberate using force against Scott, that such use

of force led to Scott’s death, even though there was no

imminent need to use force against Scott, and that such

conduct amounted to deliberate indifference to Scott’s

needs in violation of Plaintiffs’ due process right to familial

association. Second, and despite Defendants’ argument

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Appendix B

to the contrary, the Ninth Circuit “has recognized that

a child has a constitutionally protected liberty interest

under the Fourteenth Amendment in the ‘companionship

and society’” to a parent. Hayes v. County of San Diego,

736 F.3d 1223, 1229-30 (9th Cir. 2013); see also Rosenbaum

v. Washoe County, 663 F.3d 1071, 1079 (9th Cir. 2011)

(“[T]he substantive due process right to family integrity

or to familial association is well established[.]”). 3

Accordingly, the Court denies Defendants qualified

immunity and summary judgment on Plaintiffs’ denial of

familial relationship claim.

v.

Monell Liability (Fourth, Sixth, and

Seventh Causes of Action)

Defendants first argue that the Court should find that

the officers did not violate Scott’s constitutional rights,

and accordingly find that all Plaintiffs’ Monell claims4 fail

as a matter of law. In the alternative, Defendants argue

that, even if the Court finds a constitutional violation,

Plaintiffs’ Monell claims still warrant dismissal because

there is no evidence of a Monell violation. First, Plaintiffs

never identified a single policy or practice that they allege

to be unconstitutional. LVMPD has an exhaustive and

comprehensive use of force policy and policies dealing with

3. A grant of qualified immunity would also be inappropriate

here because there are material facts in dispute regarding this claim.

See Sandoval, 756 F.3d at 1160.

4. See Monell v. Dep’t of Soc. Servs. of City of New York, 436

U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

59a

Appendix B

the handling of people with mental illnesses, and Plaintiffs

have produced no evidence challenging the sufficiency

of these policies. Thus, there is nothing to support a

Monell claim under the “unconstitutional policy or

custom” theory. Second, the evidence shows that LVMPD

exhaustively trains its officers in both use of force and its

treatment of individuals who suffer from mental illness.

Plaintiffs had possession of all training documents and did

not find any evidence that the policy was sub-standard or

deficient. Thus, there is nothing to support a Monell claim

under the “failure to train” theory. Plaintiffs also failed

to generate any evidence supporting a ratification claim.

Finally, even if Plaintiffs had evidence to support a Monell

claim under any of the above theories, these claims cannot

survive because Plaintiffs have generated no evidence of

any other similar incidents. In fact, Defendants contend,

Plaintiffs’ Monell claims are based entirely on a single

isolated incident.

In response, Plaintiffs contend that Defendants’

summary judgment motion errs by arguing that all Monell

claims require evidence of other similar incidents. First,

there is a viable Monell policy or practice claim because

there was a lack of affirmative policies or procedures

guiding LVMPD officers on applying force in manners

that would avoid the dangers of placing weight on prone

subjects constituting deliberate indifference, considering

Defendant LVMPD’s history with the maneuver’s dangers.

Second, Defendants Smith and Huntsman were not

trained in the dangers of application of weight on a prone

subject, and there was no training or policy to avoid or

limit the placing of weight on a prone subject. The severe

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Appendix B

harm to civilians was the highly predictable consequence

of this deficient absence of training. This is confirmed

by the subsequent death, under similar circumstances

as Scott’s, of an individual named Bryon Williams that

prompted policy changes. Lastly, the absence of discipline

can constitute ratification for the purposes of prevailing

on a Monell claim. Here, the officers were not disciplined

for their use of force against Scott. Plaintiffs asserts that

the internal review was a sham as it did not evaluate the

propriety or lawfulness of the takedown or explain how

Scott ended up on the ground. The review also did not

assess or evaluate the propriety or lawfulness of placing

bodyweight when Scott was prone.

The Court concludes that a jury could find that

Defendant LVMPD violated Plaintiffs’ constitutional

rights as established under Monell.

The Ninth Circuit has explained that a litigant

may recover from a municipality under § 1983 on three

different theories: commission, omission, or ratification.

Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1249-50

(9th Cir. 2010). “Commission” refers to a local government

implementing its official policies or established customs

that are deliberately indifferent to a constitutional right,

which includes, for example, the inadequate training

of government officials. Id. “Omission” refers to the

government’s omission to an official policy - such as

a failure to train. Id. Finally, “ratification” refers to

an authorized policymaker’s purposeful approval of a

subordinate’s unconstitutional conduct. Id.

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Appendix B

1.

Commission Theory

The Court concludes that Plaintiffs’ commission

theory based Monell liability claim should survive

summary judgment because there are genuine issues

of fact as to whether Defendant LVMPD had a policy or

practice of subduing individuals by unlawfully placing

weight on a prone subject, or whether it lacked a policy

to avoid such uses of force. For instance, Plaintiffs have

adduced evidence that six months after Scott’s death,

LVMPD officers used the same prone restraint in

subduing Byron Williams. After Williams’s death, county

coroners concluded that the prone restraint contributed

to Williams’s death. Like Scott, Williams was restrained

with a knee on his neck in the prone position for over

one minute, a technique that Defendant LVMPD calls

the “segmenting” technique. Separately, there is also

deposition testimony from Defendant Huntsman that to

his knowledge, “segmenting is still taught,” despite the

in-custody deaths of Scott and Williams.

2.

Omission (“Failure to Train”) Theory

Additionally, the Court finds that Plaintiffs’ omission

theory based Monell liability claim should survive

summary judgment because there are genuine issues

of fact as to whether the municipality failed to train its

officers. First, the parties dispute the extent and scope

of the relevant training in this case. Second, Defendants

argue that the officers were Crisis Intervention Trained

(“CIT”) and implemented that training in their attempts to

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Appendix B

subdue Scott. Plaintiffs’ medical expert report, however,

states that the officers here were not trained in the

dangers in applying weight to someone in a prone position,

despite the significant dangers in doing so, which were

well-known prior to the time of the incident involving Mr.

Scott. Plaintiffs also retained a use-of-force consultant

who opined that LVMPD failed to properly train Smith

and Huntsman on the dangers and risks associated

with the use of maximally prone restraint techniques

on subjects who may be exhibiting signs of Agitated

Delirium or Excited Delirium prior to Scott’s death. There

is also deposition testimony from Defendant Huntsman

that he was never trained that continued pressure to an

individual’s back or neck could cause hypoxia.

3.

Ratification Theory

Lastly, the Court finds that Plaintiffs’ ratification

theory based Monell liability claim should survive

summary judgment because there are genuine issues of

material fact as to whether Defendant LVMPD ratified

an unconstitutional practice by failing to discipline the

subject officers, and by failing to change its approach to

prone restraint following Scott’s death. As stated above,

there is evidence in the record that LVMPD officers used

the same type of force against Byron Williams, resulting

in Williams’s death, and there is also testimony from

Defendant Huntsman that Defendant LVMPD continues

to use the “segmenting” technique. See Henry v. County of

Shasta, 132 F.3d 512, 520 (9th Cir. 1997) (“The subsequent

acceptance of dangerous recklessness by the policymaker

tends to prove a preexisting disposition and policy.”).

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Appendix B

Therefore, the Court denies Defendants summary

judgment on all Plaintiffs’ Monell claims as well.

vi. Americans with Disabilities Act (Fifth

Cause of Action)

1.

Proper Defendants

Title II of the ADA provides that “no qualified

individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied

the benefits of the services, programs, or activities of a

public entity, or be subjected to discrimination by any such

entity.” 42 U.S.C. § 12132. Plaintiffs pursue th

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Petition for Writ of Certiorari — Kyle Smith, et al., Petitioners v. Rochelle Scott, Individually, and as Co-Special Administrator of the Estate of Roy Anthony Scott, et al. | Frix