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
17a
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
18a
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
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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
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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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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).
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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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