Amicus Curiae Brief — Kyle Smith, et al., Petitioners v. Rochelle Scott, Individually, and as Co-Special Administrator of the Estate of Roy Anthony Scott, et al.

No. 24-1099

______________________________________________

Supreme Court of the United States

______________________________________________

KYLE SMITH, ET AL.,

v.

Petitioners,

ROCHELLE SCOTT, INDIVIDUALLY, AND AS

CO-SPECIAL ADMINISTRATOR OF THE

ESTATE OF ROY ANTHONY SCOTT, ET AL.,

Respondents.

______________________________________________

On Petition for Writ of Certiorari to The United

States Court of Appeals for the Ninth Circuit

______________________________________________

BRIEF AMICI CURIAE OF THE NATIONAL

POLICE ASSOCIATION AND THE POLICE

OFFICERS’ DEFENSE COALITION

IN SUPPORT OF PETITIONERS

______________________________________________

James L. Buchal

(Counsel of Record)

Murphy & Buchal LLP

P.O. Box 86620

Portland, OR 97286

(503) 227-1011

jbuchal@mbllp.com

Counsel for Amici Curiae

i

Table of Contents

Table of Authorities............................................... ii

Interests of the Amici ............................................ 1

Summary of Argument.......................................... 2

Argument ............................................................... 3

I.

BODYWEIGHT COMPRESSION IS

GENERALLY HARMLESS AND CANNOT

BE REGARDED, WITHOUT MORE, AS

DEADLY FORCE. ......................................... 3

II.

THIS CASE OFFERS AN IMPORTANT

OPPORTUNITY TO CLARIFY THE ROLE

OF THE PLAINTIFF’S INJURY IN

ASSESSING QUALIFIED IMMUNITY ....... 3

A.

Use of a “Deadly Force” Analysis for

Bodyweight Compression Is Not an

Objective Approach to Assessing

Use of Force ...................................... 13

B.

There Is Nothing Unreasonable

About Using Bodyweight

Compression to Take the Mentally

Ill into Custody ................................. 21

Conclusion ........................................................... 23

ii

Table of Authorities

Cases

Abdullahi v. City of Madison,

423 F.3d 763 (7th Cir. 2005) ....................... 17

Bostock v. Clayton Cnty.,

590 U.S. 644, 140 S. Ct. 1731,

207 L. Ed. 2d 218 (2020) ............................. 18

Brendlin v. California,

551 U.S. 249, 127 S. Ct. 2400,

168 L. Ed. 2d 132 (2007) ......................... 4, 15

Gibson v. County of Washoe,

290 F.3d 1175 (9th Cir. 2002) ..................... 16

Graham v. Connor,

490 U.S. 386, 109 S. Ct. 1865,

104 L. Ed. 2d 443 (1989) ............................. 13

Kingsley v. Hendrickson,

576 U.S. 389, 135 S. Ct. 2466,

192 L. Ed. 2d 416 (2015) ..................13, 14, 22

Lombardo v. City of St. Louis,

594 U.S. 464, 141 S. Ct. 2239,

210 L.Ed. 2d 609 (2021) .............................. 19

Malley v. Briggs,

475 U.S. 335, 106 S. Ct. 1092,

89 L. Ed. 2d 271 (1986) ............................... 20

iii

Scott v. Harris,

550 U.S. 372, 127 S. Ct. 1769,

167 L. Ed. 2d 686 (2007) ............................. 12

Suarez v. City of Hollywood,

Case No. 116-62215-CIV-DIMITITROULEAS,

2018 U.S. Dist. LEXIS 245031

(S.D. Fla. Nov. 9, 2018) ............................... 19

Tofano v. Reidel,

61 F. Supp. 2d 289 (D.N.J. 1999) ................ 21

Vaughn v. Nissan Motor Corp. in U.S.A.,

77 F.3d 736 (4th Cir. 1996) ......................... 15

Weigel v. Broad,

544 F.3d 1143 (10th Cir. 2008) ................... 12

Statutes, Codes and Rules

42 U.S.C. § 1983 .............................................15, 16

Nev. Rev. Stat. § 433A.160(1) ............................. 21

Clark County (Nevada) Code 12.33.010 ............. 22

Fed. R. Evid. 702 ................................................. 20

Other Authority

iv

American College of Emergency Physicians Task

Force Report on Hyperactive Delirium with

Severe Agitation in Emergency Settings

(ACEP June 23, 2021)(available at

https://www.acep.org/siteassets/newpdfs/education/acep-task-force-report-onhyperactive-delirium-final.pdf

(accessed 5/5/25)) ................................................... 5

R. Byard et al., “The pathological features of

circumstances of death of lethal crush/traumatic

asphyxia in adults—a 25-year study,”

Forensic Science International,

Vol. 159, Nos. 2-3 (June 2006) .......................... 7, 8

C. Cahn et al., “Weight Force During Prone

Restraint and Respiratory Function,”

Am. J. Forensic Medicine and Pathology,

Vol. 25, No. 3 (September 2004) ........................... 8

FBI Report, “Crime in the U.S.” (2019) (available

at https://ucr.fbi.gov/crime-in-the-u.s/2019/crimein-the-u.s.-2019 (accessed 5/6/25)) ..................... 10

J. Garner & C. Maxwell, “Measuring the

Amount of Force Used By and Against the

Police in Six Jurisdictions,”

(reprinted in Use of Force By Police:

Overview of National and Local Data,

(U.S. Dept. Just. Oct. 1999)) ............................... 11

v

M. Kroll et al., “Acute forces required for fatal

compression asphyxia: A biomechanical model

and historical comparisons,”

Medicine, Science and the Law,

Vol. 57, No. 2, (2017) ......................................... 6, 7

M. Kroll, Applied Force During Prone Restraint:

Is Officer Weight a Factor?,”

Am. J. Forensic Medicine and Pathology,

Vol. 40, No. 1 (Dec. 2018) ...................................... 7

B. Michalewicz et al., “Ventilatory and Metabolic

Demands During Aggressive Physical Restraint

in Healthy Adults,”

Journal of Forensic Sciences,

Vol 52, No. 1 (January 2007) ................................ 9

National Safety Council, “Preventable Deaths”

(available at https://injuryfacts.nsc.org/allinjuries/preventable-death-overview/odds-ofdying/ (accessed 4/24/25)) .................................... 12

R. L. O’Halloran & J. Frank, “Asphyxial

death during prone restraint revisited:

a report of 21 cases,” Am. J. Forensic Medicine

and Pathology, Vol. 21, No. 1 (March 2000) ....... 10

Reference Manual on Scientific Evidence

336 (Federal Judicial Center 2d ed. 2000) ....17, 18

vi

C. Remsberg, “What Does It Really Take To Kill

Someone With ‘Compression Asphyxia’?”

Force Science News, Mar. 10, 2017

(available at https://www.forcescience.com/2017/0

3/what-does-it-really-take-to-kill-someone-withcompression-asphyxia/ (accessed 4/24/25)) ........... 7

Use of Force by Police: Overview of National and

Local Data (U.S. Dept. Just. Oct. 1999) ........11, 22

G. Vilke, “Restraint physiology: A review of the

literature,” J. Forensic of Forensic and Legal

Medicine, Vol. 75 (October 2020) .......................... 9

K. Wedell, “George Floyd is not alone,” USA

Today, June 13, 2020.) ........................................ 11

White Paper Report, “Excited Delirium

Syndrome”(American College of Emergency

Physicians Sept. 10, 2009)

(available at https://www.scribd.com/document/49

9350395/White-Paper-Report-on-ExcitedDelirium-Syndrome-ACEP

(accessed 5/5/25)) ........................................5, 22, 23

E. Zentner, “Revealed: at least 22 Californians

have died while being held face down by police

since 2016,” The Guardian, Feb. 28, 2024 .......... 11

1

Interests of the Amici 1

The National Police Association (“NPA”) is a

nonprofit corporation organized under Indiana

law. The NPA pursues a general mission of

advancing law enforcement interests, including

participating in cases as amicus curiae when the

cases raise legal questions important to law

enforcement interests. The NPA is a national

association representing police officers across the

country.

The Police Officers’ Defense Coalition

(“PODC”) is a nonprofit corporation organized

under Virginia law. The PODC advocates for

police officers, public safety officers, sheriffs and

others representing the law enforcement community, with a focus on fairness in civil and

criminal actions against members of the law

enforcement community.

Both the NPA and the PODC are deeply

committed the maintenance of law and order, and

to fostering legal rules that provide the Nation’s

police officers with adequate discretion to

maintain law and order. Both the NPA and the

PODC seek to inform this Court that the

application of bodyweight pressure to control

those resisting law enforcement officers is

1 No counsel for any party authored this brief in whole or in

part, nor did parties or their counsel make any monetary

contribution intended to fund its preparation or submission.

Timely notice was provided to the parties.

2

essential to the maintenance of law and order.

They and their members have a keen interest in

the availability of qualified immunity for the use

of bodyweight pressure in law enforcement.

Summary of Argument

This is a tragic case that threatens to make

bad law. The Nation’s police officers, responding

when delirious individuals threaten the wellbeing

of themselves or others, must use force to take

these individuals into custody. The video footage

in the record below demonstrates success in the

training and performance of these officers.

Attempts to establish even higher standards by

judicial fiat are not only patently unreasonable,

but practically unachievable and would impose

enormous costs in the loss of ability to maintain

public order.

This Court should accept the petition for

review of the Ninth Circuit’s decision. The Ninth

Circuit erred in denying summary judgment on

the officers’ claims of qualified immunity,

contrary to the approach taken by the majority of

the other federal courts of appeals, an error

premised on the Court’s failure to appreciate the

general harmlessness of the use of bodyweight

pressure in making an arrest. Unless corrected,

the Ninth Circuit’s decision threatens to

undermine the ability of the Nation’s police

officers to arrest subjects called to the attention of

law enforcement in all contexts.

3

The applicable law, requiring objectively

unreasonable use of force, is clear. Characterization of a particular use of force as deadly

merely because death followed in close temporal

proximity undermines the entire objective approach to assessing police conduct. As more and

more police techniques that have no appreciable

risk of killing people fall under the “deadly force”

rubric, the Nation’s police officers are left with

fewer and fewer options for control.

While each death in custody is a tragedy,

decisions that further deter attempts to maintain

public order have their own countervailing risks

of death to police officers and members of the

public. Where, as here, a police officer’s use of his

body weight to control a subject produces no

characteristic injuries associated with asphyxia,

this Court should permit legislatures to provide

any further limitations on use of force, rather

than divining limitations on the use of such force

in the text of the Fourth Amendment.

Argument

I.

BODYWEIGHT

COMPRESSION

IS

GENERALLY HARMLESS AND CANNOT

BE REGARDED, WITHOUT MORE, AS

DEADLY FORCE.

The Petitioners’ statement of facts, based on

two body-camera recordings, makes it clear that

Mr. Scott was experiencing a mental health crisis

that required state intervention. He produced

4

two dangerous weapons and refused to be patted

down to ensure he did not have more. The

officers forcibly handcuffed him, a process that

took “one to two minutes” (Pet. App. 5a), with no

indication of any compression or asphyxia-related

injuries from the force used—no “I can’t

breathe”. 2

A “few minutes” after being

restrained by the officers, Mr. Scott “stopped

yelling and thrashing around”.

(Id. at 6a.)

Paramedics took him but he died after removal

from the scene; the Coroner found death due to

“methamphetamine intox-ication” and “review of

body camera videos did not reveal restraint

2 It was misleading for the Ninth Circuit to mischaracterize

what happened here as one to two minutes of bodyweight

pressure on Scott’s “back and neck” (Pet. App. 5a). The

video makes it clear that Officer Huntsman is not

attempting to control Mr. Scott by direct pressure to Mr.

Scott’s neck. Rather, he places one knee in the middle of

Scott’s back, and as Scott struggles, the knee slips, winding

up close to the neck for a short time. While Mr. Scott may

have become more incoherent over time, the video makes it

clear that at no point was he “breathless” (cf. Pet. App. 6a).

The law is clear that a Fourth Amendment seizure

represents government termination of freedom of movement

involving “means intentionally applied,” and no Fourth

Amendment right is violated by accidents during a seizure

process. Brendlin v. California, 551 U.S. 249, 254, 127 S.

Ct. 2400, 168 L. Ed. 2d 132 (2007) (citations omitted). From

this perspective, the fact that Officer Huntsman’s knee

slipped during the arrest as Mr. Scott struggled is not

constitutionally relevant—no reasonable juror could find

that he intended to put his bodyweight directly on Mr.

Scott’s neck to control him.

5

procedure related to death”. (Coroner’s Report of

Investigation at 4 (District Ct. Dkt. No. 19-10).

The District Court file contains the training

records showing the detail and care with which

these officers were trained, and the two bodycam

videos demonstrate the success of that training.

There is a total absence of any punches, strikes or

any intent to injure Mr. Scott. The officers were

using the minimal amount of force required to

take Mr. Scott into custody in a timely fashion,

because the health risks of his excited delirium

were minimized by quick action. See White Paper

Report on Excited Delirium Syndrome (American

College of Emergency Physicians [“ACEP”] Sept.

10, 2009) (emphasizing need to “take the subject

into custody quickly, safely and efficiently . . . the

physical control methods employed should

optimally reduce the time spent struggling . . .”). 3

Nevertheless, the Ninth Circuit denied

summary judgment on the officers’ qualified

immunity defense, starting with the erroneous

premise (and the Court’s first explicit holding)

that the officers used “deadly force,” which the

Court even characterizes as “severe, deadly force”.

(Pet. App. 10a.) This was apparently based on

the Court’s uninformed view that the force used

3 This report later came under political attack, causing the

ACEP to withdraw its approval of the paper, sidestep the

issue of police custody and control, and shift the focus to

pharmacological control means. ACEP Task Force Report

on Hyperactive Delirium with Severe Agitation in

Emergency Settings (ACEP June 23, 2021).

6

had “a substantial risk of causing death or serious

bodily injury”. (Id.; citation omitted.)

While bodyweight compression can cause

death directly, the forces involved must far exceed

those applied by police officers in general or those

involved in this particular incident. The primary

mechanism by which bodyweight compression

kills people is by actually breaking the ribs,

resulting in a condition known as “flail chest,” but

extensive research has confirmed that this does

not occur even with pressures of up to 225 pounds

on a subject’s back. M. Kroll et al., “Acute forces

required for fatal compression asphyxia: A biomechanical model and historical comparisons,”

Medicine, Science and the Law, Vol. 57, No. 2, at

61 (2017) (hereafter, “Kroll (2017)”). 4

This study determined static and dynamic

forces necessary to cause such damage, and also

reviewed historical records of judicial “pressing,”

vending machine fatalities (machines falling on a

victim), and automobile safety cadaver testing.

The historical records show that subjects survived

pressings far longer than police encounters

(sometimes hours) and that much larger “chest

masses of 182, 171 and 181 kg [401, 377 and 399

pounds] are survivable” while masses “of 284 and

320 kg [626 and 705 pounds] were fatal”. Id. at

65. The authors conclude that “it is very difficult

This weight was the maximum used on volunteer test

subjects. Kroll (2017), at 65.

4

7

to generate flail chest from the weight of other

humans”. Id. at 66. 5 The present case involves

no rib injuries at all, consistent with this

research.

A subsequent study actually measured the

weight police officers put on subject by using one

or two knees to control them, finding roughly 50

pounds of pressure plus a quarter of the officer’s

body weight was the resulting pressure—far

below the weights necessary to cause compression

asphyxia. M. Kroll, Applied Force During Prone

Restraint: Is Officer Weight a Factor?,” Am. J.

Forensic Medicine and Pathology, Vol. 40, No. 1

(Dec. 2018). For this reason, the term “bodyweight compression,” which implies that the full

weight of the officer is applied to the subject, is

somewhat misleading, though generally used in

federal judicial decisions.

Death

caused

directly

by

extreme

compressive force also has characteristic features

absent in this case. An Australian study, R.

Byard et al., “The pathological features of

circumstances of death of lethal crush/traumatic

asphyxia in adults—a 25-year study,” Forensic

Science International, Vol. 159, Nos. 2-3 (June

Interviewed by Force Science News, the lead researcher

stated the research showed “it would take two 285-pound

cops standing and balancing on the back or chest of a

subject to produce compression asphyxia. And that’s simply

not going to happen in the real world.” C. Remsberg, “What

Does It Really Take To Kill Someone With ‘Compression

Asphyxia’?,” Force Science News, Mar. 10, 2017.

5

8

2006) (hereafter “Byard (2006)”), examined

seventy-nine cases, in which 51% of the victims

had “only very minor bruises and abrasions,” but

all of those victims “had signs of crush asphyxia

in the form of intense purple congestion and

swelling of face and neck, and/or petechial

hemorrhages of the skin of the face and/or

conjunctivae”. 6 Id. at 201. No such injuries were

present in this case.

The subject of bodyweight compression has

also been reviewed in connection with scientific

analyses of the restraint techniques performed by

law enforcement. Several studies have analyzed

the “prone maximal restraint position” (also

known as hogtie or hobble), including the effects

of weight placed on the subject’s back. It is

possible to measure reductions in pulmonary

function, but no evidence of hypoxia (insufficient

oxygen to the body) or hypoventilation

(respiratory depression/inadequate breathing) has

been found. C. Cahn et al., “Weight Force During

Prone Restraint and Respiratory Function,” Am.

J. Forensic Medicine and Pathology, Vol. 25, No. 3

(September 2004) (prone test subjects with 50

pounds of pressure on their backs for five

minutes). It is true that if the subject also

struggles while prone and bearing weight,

ventilatory function will decrease, but research

6 Additional cases had the “flail chest” symptoms as well.

Only four of the seventy-nine cases lacked the asphyxia

symptoms, but had other injuries such as “single rib

fractures, bruises and abrasions. Byard (2006), at 201.

9

confirms that even while maximally struggling in

the prone maximal restraint position, ventilatory

function remains adequate to supply oxygen

needs. B. Michalewicz et al., “Ventilatory and

Metabolic Demands During Aggressive Physical

Restraint in Healthy Adults,” Journal of Forensic

Sciences, Vol 52, No. 1 (January 2007) (hereafter

“Michalewicz (2007)”).

Indeed, a review of twenty experimental

studies found respiratory function “remained

within clinically normal range in all studies”. G.

Vilke, “Restraint physiology: A review of the

literature,” J. Forensic of Forensic and Legal

Medicine, Vol. 75 (October 2020) (hereafter, Vilke

(2020)). The author also addresses limitations of

the studies in that they involve healthy subjects,

usually at rest, pointing out that Michalewicz

(2007) simulated struggles, yet oxygen demands

reached only 42% of “peak values generated

during a baseline maximum exertion treadmill

test”—the study “concluded that factors other

than ventilatory failure likely lead to fatality in

restraint incidents”. Id. at 173.

In short, the popular conception that police

officers asphyxiate suspects in the course of

arresting them merely by holding them down

with the weight of their bodies is almost always

false.

To be sure, the theory of “restraint

asphyxia” has been repeatedly put forward in

published literature, but the cases reviewed

typically contain the characteristic petechial

hemorrhages or other asphyxia injuries absent

10

here. E.g., R. L. O’Halloran & J. Frank, “Asphyxial death during prone restraint revisited: a

report of 21 cases,” Am. J. Forensic Medicine and

Pathology, Vol. 21, No. 1 (March 2000). And in the

case below, there was asserted expert testimony

that Mr. Scott died of “restraint asphyxia” (Pet.

App. 6a), but the studies above confirm that

absent specific asphyxia-related injuries not

present here, such “expert opinion” is no more

than labelling of the fact that death resulted

shortly after the restraint.

Because the forces required to actually

create “a substantial risk of causing death or

serious bodily injury” (cf. Pet. App. 10a) are so

much higher than officers simply kneeling on a

subject’s back (one knee, as here, or even with

two), the risks of death from police officers using

body weight to control a subject are miniscule.

They may be roughly estimated by identifying the

total number of arrests per year, the percentage

of arrests involving use of bodyweight pressure,

and comparing the total uses of bodyweight

pressure to uses that result in death.

The FBI’s most recent report concerning

“Crime in the U.S.” (2019) reports roughly ten

million arrests per year.

There is little data available on what

percentage of arrests involve the use of

bodyweight pressure. The best available data

appears to be from a six-jurisdiction study

analyzing 7,512 arrests, with officers reporting

11

percentages ranging from 1.1% to 3.1% for

categories described as “pressure hold,” “control

hold” and “wrestling”.

J. Garner & Chris

Maxwell, “Measuring the Amount of Force Used

By and Against the Police in Six Jurisdiction,” at

33 (reprinted in Use of Force by Police: Overview

of National and Local Data, at 33 (U.S. Dept.

Just. Oct. 1999). Adopting a conservative figure

of 2% for use of force akin to that here, gives rise

to 200,000 arrests a year where officers use

bodyweight pressure.

Out of those 200,000 arrests per year, there are

roughly thirty asphyxia/restraint-related deaths, 7

or 0.015% of all arrests in which bodyweight

compression is used to control a subject—and

The highest available recent figure of which amici are

aware comes from a California report that “[b]etween 2016

and 2022, at least 22 people have died in the state after

being restrained stomach-down by law enforcement officers,

according to a new analysis of currently available state useof-force data by the California Reporting Project, the

California Newsroom and the Guardian.” (E. Zentner,

“Revealed: at least 22 Californians have died while being

held face down by police since 2016,” The Guardian,

Feb. 28, 2024.) That is 3.1 deaths a year, and scaling up for

the U.S. population (12%) would mean 26 deaths a year. A

study by USA Today found 134 people dying from

“asphyxia/restraint” over ten years—13.4 deaths per year—

many of which involved other causative factors such as

tasers or neck holds. (K. Wedell, “George Floyd is not

alone,” USA Today, June 13, 2020.) Earlier figures showing

higher death rates appear to be associated with arrests

involving choke holds and other restraint techniques which

police have now been trained not to use.

7

12

appreciable fraction of these arrests involve

factors, such as deliberate punching or striking,

far beyond what happened here. Put another

way, the chance of dying from the conduct

challenged below is roughly 1 in 6,666, which

might be compared with the risk of dying from a

motor vehicle crash (1 in 95), walking down the

street (1 in 471), choking on food (1 in 2,461), or

drowning in a bathtub (1 in 5,975). 8 From this

perspective, the Court below and other federal

decisions are simply wrong in suggesting that any

use of bodyweight compression represents circumstances a “reasonable officer should have known

presented a significant risk of asphyxiation and

death”. Weigel v. Broad, 544 F.3d 1143, 1153

(10th Cir. 2008).

As set forth below, this Court should clarify

that the legal standards for use of “deadly force”

should not apply to bodyweight compression and

other generally less-than-lethal uses where the

actual risk of death is miniscule. Cf. Scott v.

Harris, 550 U.S. 372, 383, 127 S. Ct. 1769, 1777,

167 L. Ed. 2d 686, 695 (2007) (“A police car's

bumping a fleeing car is, in fact, not much like a

policeman's shooting a gun so as to hit a person;”

citation omitted). This Court’s legal standards for

use of deadly force were devised for use of real

deadly force, like discharging a firearm, and

These figures come from the National Safety Council’s

“Preventable Deaths” website (address in the Table of

Authorities).

8

13

cannot reasonably be extended to common lessthan-lethal arrest techniques.

II.

THIS CASE OFFERS AN IMPORTANT

OPPORTUNITY TO CLARIFY THE ROLE

OF THE PLAINTIFF’S INJURY IN

ASSESSING QUALIFIED IMMUNITY.

Mr. Scott’s claim, like all claims of excessive

force “in the course of an arrest, investigatory

stop, or other ‘seizure’ of a free citizen is to be

analyzed under the Fourth Amendment and its

‘reasonableness’ standard”. Graham v. Connor,

490 U.S. 386, 395, 109 S. Ct. 1865, 1871, 104 L.

Ed. 2d 443, 454 (1989). This is an objective

standard: “the question is whether the officers’

actions are ‘objectively reasonable’ in light of the

facts and circumstances confronting them . . .”.

Id. at 397.

Those facts and circumstances include, but

are not limited to,

“the relationship between the need for

the use of force and the amount of force

used; the extent of the plaintiff’s injury;

any effort made by the officer to temper

or to limit the amount of force; the

severity of the security problem at issue;

the threat reasonably perceived by the

officer; and whether the plaintiff was

actively resisting.”

14

Kingsley v. Hendrickson, 576 U.S. 389, 397, 135

S. Ct. 2466, 2473, 192 L. Ed. 2d 416, 426 (2015).

This case highlights a problem with federal

jurisprudence concerning the “extent of the

plaintiff’s injury” factor. Granting the Petition

will permit this Court to clarify the role of “the

extent of plaintiff’s injury” in evaluating the

objective reasonableness of force. Most importantly, this Court should clarify that the “extent

of the plaintiff’s injury” does not mean that rules

concerning application of “deadly force” should be

employed when less-than-deadly force has an

unexpectedly lethal result.

A.

Use of a “Deadly Force” Analysis for

Bodyweight Compression Is Not an

Objective Approach to Assessing Use

of Force.

Judicial rules fashioning constitutional

duties based on rare and unintended results of

less-than-lethal procedures can have profound

impacts on the ability of the police to maintain

order, and the rise of such rules involves an

approach to duty and causation not employed in

tort contexts generally. Indeed, as set forth

below, the reasoning invoked by the Ninth Circuit

is such a departure from classic tort principles as

to raise the inference of an invidious hostility

against policing from some members of the

federal judiciary.

15

Because a Fourth Amendment seizure

represents government termination of freedom of

movement

involving

“means

intentionally

applied,” Brendlin, 551 U.S. at 254, the scope of

constitutional duties must focus on the intended

and general effect of police control procedures—

even if they do occasionally result in tragic

accidents. Seizures of a person that are

objectively reasonable within the meaning of the

Fourth Amendment may well result in injuries for

which 42 U.S.C. § 1983 can and should provide no

remedy.

Drawing on classic tort law analogies,

particularly the “thin skull” doctrine, makes it

clear that the constitutional duties of police

officers should not depend upon the injuries

suffered where, as here, the injuries were very

unlikely to result. A rule that assesses the

constitutional duty owed by police officers by

reference to the injury suffered by the victim

without regard to its objective likelihood—its

objectively reasonable foreseeability—is not only

contrary to legal principles generally, but also

unjust.

As a matter of basic tort law, the problem of

the “thin skulled” plaintiff like Mr. Scott creates

special rules of damages but does not create

heightened legal duties. E.g., Vaughn v. Nissan

Motor Corp. in U.S.A., 77 F.3d 736, 738 (4th Cir.

1996) (“The tortfeasor’s duty of care is measured

by the ordinary person, but the plaintiff’s injuries

may not be”). By the same principle, an unusual

16

extent of harm, even death, should not create

heightened constitutional duties for police

officers. 9

The contrary approach taken by the Ninth

Circuit is strikingly clear in its statement that

“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”. (Pet. App. 16a.) In substance, the Ninth

Circuit and other courts are giving the “extent of

plaintiffs’ injury factor” dispositive weight in

assessing whether the force used was unreasonable. It is a grossly inappropriate approach

to Constitutional interpretation to analyze the

facts here as if “grievous injury” were the means

intentionally used by the officers, rather than a

tragic and unexpected result.

The Ninth Circuit’s approach to constitutional interpretation is also at odds with all

normal judicial rules concerning causation,

converting § 1983 into a sort of strict liability rule

whenever death results. It is perfectly appropriate to assess “the extent of plaintiff’s injury” in

assessing causation, but not the scope of duty.

Such an analysis may reveal that a generally lessThe “thin skull” rule can continue to provide full

compensation for injuries when an objectively unreasonable

use of force is found causing death, even if such force would

usually only injure the victim. Gibson v. County of Washoe,

290 F.3d 1175, 1192-93 (9th Cir. 2002) (noting this Court’s

precedent interpreting § 1983 “in light of the background of

tort liability”).

9

17

than-lethal police restraint procedure was in fact

employed in a way such that it really was “severe,

deadly force”.

As in the case of the old English executions,

bodyweight compression can in extraordinarily

rare cases constitute “severe, deadly force,” and

the federal judiciary can and does see such cases.

See, e.g., Abdullahi v. City of Madison, 423 F.3d

763, 766 (7th Cir. 2005) (victim “died of chest and

neck trauma, including a collapsed left lung and

injuries

consistent

with

strangulation,”

notwithstanding claims that an officer had merely

his knee and shin on the back of a victim’s

shoulder for 30-45 seconds).

However, the research reviewed above

makes it clear that police officers using their body

weight are extraordinarily unlikely to cause death

at all, making liability for use of this control

technique profoundly inappropriate. Death when

police physically control subjects with less-thanlethal means involves a complex, multi-factor

causation, which may be analogized to the

common problem of identifying what agent has

caused disease, in which epidemiologists “engage

in a rigorous analysis of multiple factors to

determine whether an association is causal”.

Reference Manual on Scientific Evidence 336

(Federal Judicial Center 2d ed. 2000) (“it should

18

be emphasized that an

equivalent to causation”). 10

association

is

not

We will never know whether the effects of

Mr. Scott’s methamphetamine usage, heart disease, excited delirium, and exertion of struggling

would have alone caused his death, so that the

use of body weight by the officers here cannot be

deemed a “but for” cause of the Mr. Scott’s death.

Cf. Bostock v. Clayton Cnty., 590 U.S. 644, 656,

140 S. Ct. 1731, 1739, 207 L. Ed. 2d 218, 232

(2020) (“. . . a but-for test directs us to change one

thing at a time and see if the outcome changes. If

it does, we have found a but-for cause.”) The

challenged conduct of the officers might have

been a contributing factor to the death, and it

might not have been. What is important for

qualified immunity is that research demonstrates

that absent specific, asphyxia-related injuries

As the Manual notes, “[t]he factors that guide

epidemiologists in making judgments about causation are

10

1. temporal relationship;

2. strength of the association;

3. dose–response relationship;

4. replication of the findings;

5. biological plausibility (coherence with existing

knowledge);

6. consideration of alternative explanations;

7. cessation of exposure;

8. specificity of the association; and

9. consistency with other knowledge.”

(Manual at 375.) Only the first factor is present here; all

others militate against a finding of causation.

19

showing extreme forces, the use of bodyweight

compression is not objectively unreasonable.

It is unfair to the Nation’s police officers, and

contrary to the law’s general approach to

assessing the scope of legal duties, to use a

“deadly force” approach to assess police use of

less-than-lethal force tactics. Even this Court has

casually stated that “officers pressing on the back

of a prone subject can cause suffocation”

(Lombardo v. City of St. Louis, 594 U.S. 464, 467,

141 S. Ct. 2239, 2241, 210 L.Ed. 2d 609, 612

(2021)), without regard to the fact that the

amount of force required far exceeds typical police

use.

Many courts, including the court below, have

simply declared, in substance, that because the

subject died, “deadly force” was used, which all

but assumes for purposes of the immunity

analysis that the officer’s conduct directly caused

the death. Absent clarification of the way in

which the federal judiciary should evaluate the

“extent of the plaintiff’s injury,” qualified

immunity rulings will continue to force police

officers to go to trial and face the testimony of

testimony of asserted experts in contexts where

use of less-than-lethal force unexpectedly

produced lethal results. Cf., e.g., Suarez v. City of

Hollywood,

Case

No.

116-62215-CIVDIMITITROULEAS, 2018 U.S. Dist. LEXIS

245031 (S.D. Fla. Nov. 9, 2018) (allowing expert

testimony). This result undermines objective

implementation of Fourth Amendment rights,

20

and the research discussed above suggests that

officers may be exposed to expert testimony that

is not even “the product of reliable principles and

methods” within the meaning of Fed. R. Evid.

702.

For purposes of qualified immunity, more

than mere disagreement over the unreasonability

of use of an officer’s force should be required to

destroy that immunity. Cf. Malley v. Briggs, 475

U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d

271, 278 (1986) (“if officers of reasonable

competence could disagree on [securing an arrest

warrant], immunity should be recognized”).

There will never be a shortage of asserted experts

suggesting that less force could or should have

been used in any particular case, but this Court’s

objective approach to assessing the reasonability

of force used by police should uphold qualified

immunity in nearly all bodyweight compression

cases.

A clear rule that bodyweight compression is

never an objectively unreasonable use of force to

control a subject resisting arrests, unless

excessive force is manifested by breaking ribs and

causing “flail chest” or actually producing

symptoms of asphyxia (e.g., the purple congestion

and swelling of face and neck, and/or petechial

hemorrhages of the skin of the face and/or

conjunctivae

discussed

above),

adequately

protects the constitutional rights of Americans

and American police officers. Even then, the

particular circumstances of the police interaction

21

may make such use of force reasonable. Cf., e.g.,

Tofano v. Reidel, 61 F. Supp. 2d 289, 305 (D.N.J.

1999) (qualified immunity notwithstanding

petechial hemorrhages when “violent resistance

to arrest resulting in police officers being

injured”).

B.

There Is Nothing Unreasonable About

Using Bodyweight Compression to

Take the Mentally Ill into Custody.

Finally, the opinion below may be read as

promoting the radical proposition that no use of

force whatsoever is appropriate to take the

mentally ill into custody. (Pet. App. 15a (“there

are genuine issues of fact regarding whether any

force was necessary;” emphasis in original).) This

position is premised on still further factual

assumptions that are plainly wrong.

First, the Ninth Circuit ignores entirely the

context that officers who have “probable cause to

believe that the person was in a mental health

crisis,” are under a duty to “tak[e] the person into

custody” for treatment—whether person wants to

go or not. Nev. Rev. Stat. § 433A.160(1). The

notion that a paranoid schizophrenic who does not

want to go into custody does “not present a risk to

officers or others” (e.g., Pet. App. 14a) is so

unrealistic as to suggest some sort of anti-police

bias in the panel below. Officers are at significant

risk of injury whenever they come into physical

contact with members of the public who must be

taken into custody. Mere use of hands and arms

22

to control a resisting suspect gives rise to a 43%

risk of officer injury. (Use of Force By Police,

supra, Exec. Summ., at xii.)

Under this Court’s precedent, “the severity of

the security problem at issue” (Kingsley, 576 U.S.

at 397) is a relevant consideration, but the Ninth

Circuit’s suggestion that Mr. Scott and others

similarly situated are not “suspected of any

crime” (Pet. App. 2a), substitutes assessment of

criminality for assessment of the security and

safety of the public. While mental illness itself

cannot be punished, police are seldom called until

conduct is called to their attention that

constitutes crimes against the public order, such

as “disorderly conduct” or “breach of the peace”.

E.g., Clark County (Nevada) Code 12.33.010.

These are not severe crimes but applying bodyweight pressure to one who commits them and

then physically struggles to resist arrest almost

always does not produce severe consequences.

Citizens whose conduct prompts others to call the

police invoke the state’s fundamental interest in

preserving orderly conduct and can reasonably

expect to encounter use of force if they resist

officers.

Those entirely unfamiliar with the realities

of modern police work can imagine that even

larger teams of officers and lengthy de-escalation

procedures could somehow avoid any use of force

to bring an individual into custody. The NPA and

PODC regard the Ninth Circuit’s view as naïve.

See also White Paper (2009) (“It is not feasible for

23

[law enforcement officers] to wait for the [excited

delirium] subject to calm down, as this may take

hours in a potentially medically unstable

situation fraught with scene safety concerns”).

While the federal judiciary may have the raw

power to declare that the Fourth Amendment

right to be free of unreasonable seizures requires

such an approach, sending all uses of force

against the mentally ill resisting arrest to federal

juries is certainly not a policy choice required by

the Fourth Amendment. The real effect of continuing erosion of the doctrine of qualified

immunity in this context will be less treatment of

the mentally ill and more disorder.

Conclusion

For the foregoing reasons, and the reasons

stated in the Petition, the Petition for a Writ of

Certiorari should be granted.

24

Respectfully submitted,

James L. Buchal

Counsel of Record

Murphy & Buchal LLP

P.O. Box 86620

Portland, OR 97286

(503) 227-1011

jbuchal@mbllp.com

Counsel for Amici Curiae

The National Police Association

& The Police Officers’ Defense

Fund

May 2025