Opposition 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

IN THE

Supreme Court of the United States

________________

KYLE SMITH, et al.,

Petitioners,

v.

ROCHELLE SCOTT, individually, and as co-special

administrator of THE ESTATE OF ROY ANTHONY

SCOTT, ET AL.,

Respondents.

________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

________________

BRIEF IN OPPOSITION

________________

Peter Goldstein

Counsel of Record

Jeremy Friedman

PETER GOLDSTEIN LAW

CORPORATION

10161 Park Run Drive

Suite 150

Las Vegas, NV 89145

(702) 474-6400

peter@petergoldsteinlaw.com

Counsel for Respondents

i

QUESTION PRESENTED

Regarding an excessive force claim that arose

when two officers applied their bodyweight on a mentally-distressed prone individual, who then died, did

the court of appeals—upon the determination that,

construing the facts in favor of the summary judgment nonmovants, the officers used severe and deadly

force on the individual, who posed no threat and was

not suspected of a crime—correctly determine that

Petitioners were not entitled to a grant of summary

judgment based on qualified immunity?

ii

TABLE OF CONTENTS

Page

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

TABLE OF AUTHORITIES .................................... iv

INTRODUCTION ..................................................... 1

STATEMENT OF THE CASE .................................. 2

Experiencing A Mental Health Crisis, Mr.

Scott Calls 911 For Assistance ..................... 3

Mr. Scott Immediately Complies With The

Officers And Explains That He Is

Mentally Distressed ...................................... 5

Despite His Compliance, The Officers

Perform A Takedown And Then

Restrain Mr. Scott Using Bodyweight

Force That Kills Him .................................... 6

The Administrators Of Mr. Scott’s Estate

Sue The Officers, And Summary

Judgment Is Denied ...................................... 8

The Court Of Appeals Unanimously

Affirms ......................................................... 11

REASONS TO DENY CERTIORARI ..................... 14

I.

The Decision Below Is Correct. ........................ 14

A. The Petition relies on factual

challenges that exceed the limited

scope of interlocutory appellate review. ..... 14

iii

B. Summary judgment was properly

denied because a reasonable jury could

find the officers violated Mr. Scott’s

Fourth Amendment rights. ......................... 19

C. Mr. Scott’s Fourth Amendment rights

were clearly established at the time of

his death. ..................................................... 24

II. There Is No Circuit Split. ................................. 28

III. This Case Is Not A Vehicle For Resolving

The Questions Presented. ................................ 35

CONCLUSION ........................................................ 36

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Abdullahi v. City of Madison,

423 F.3d 763 (7th Cir. 2005).................... 20, 28, 34

Abraham v. Raso,

183 F.3d 279 (3d Cir. 1999) .................................16

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986)........................................19, 20

Ashcroft v. al-Kidd,

563 U.S. 731 (2011)..............................................27

Barnes v. Felix,

145 S. Ct. 1353 (2025).............................. 29, 30, 35

Bornstad v. Honey Brook Twp.,

211 F. App’x 118 (3d Cir. 2007) .....................30, 31

Champion v. Outlook Nashville, Inc.,

380 F.3d 893 (6th Cir. 2004)..........................32, 33

Chew v. Gates,

27 F.3d 1432 (9th Cir. 1994)................................17

Drummond ex rel. Drummond v. City of

Anaheim,

343 F.3d 1052 (9th Cir. 2003).................. 13, 25, 26

Graham v. Connor,

490 U.S. 386 (1989)...................... 21, 24, 28, 29, 30

Hayes v. Cnty. of San Diego,

736 F.3d 1223 (9th Cir. 2013)..............................16

Kingsley v. Hendrickson,

576 U.S. 389 (2015)..............................................30

v

Teetz ex rel. Lofton v. Stepien,

142 F.4th 705 (10th Cir. 2025) ............................34

Meadours v. Ermel,

483 F.3d 417 (5th Cir. 2007)................................17

Mitchell v. Forsyth,

472 U.S. 511 (1985)........................................15, 18

Moser v. Etowah Police Dep’t,

27 F.4th 1148 (6th Cir. 2022) ..............................33

Omdahl v. Lindholm,

170 F.3d 730 (7th Cir. 1999)................................17

Perez v. City of Fresno,

98 F.4th 919 (9th Cir. 2024) ..........................14, 27

Rice v. Morehouse,

989 F.3d 1112 (9th Cir. 2021)..............................16

Rivas v. City of Passaic,

365 F.3d 181 (3d Cir. 2004) .................................31

Rivas-Villegas v. Cortesluna,

595 U.S. 1 (2021)...................................... 26, 27, 28

Roberts v. City of Omaha,

723 F.3d 966 (8th Cir. 2013)................................16

Robinson v. Pezzat,

818 F.3d 1 (D.C. Cir. 2016) ..................................16

Santos v. Gates,

287 F.3d 846 (9th Cir. 2002)................................17

Scott v. Harris,

550 U.S. 372 (2007).................................. 15, 16, 18

Scott v. Smith,

109 F.4th 1215 (9th Cir. 2024) ............................34

vi

Tennessee v. Garner,

471 U.S. 1 (1985)..................................................29

Tolan v. Cotton,

572 U.S. 650 (2014).................................. 19, 20, 25

Constitutional Provisions

U.S. Const. amend. IV .. 2, 9, 12-13, 19, 24-25, 28-29,

31, 35

Statutes & Rules

42 U.S.C. § 1983 ..........................................................9

S. Ct. R. 10 .................................................................15

INTRODUCTION

Petitioners request this Court’s intervention to

reassess the lower courts’ unanimous, fact-bound determination that Petitioners are not entitled to qualified immunity at summary judgment, since there are

genuine issues of disputed material fact. That highly

case-specific determination does not warrant this

Court’s review.

Petitioners do not dispute the statements of law

in the court of appeals’ and district court’s rulings

denying summary judgment on the excessive force

claim. Nor do Petitioners dispute the fact that mentally-distressed civilian Roy Scott—who was not suspected of criminal activity—died after two officers

applied their bodyweight to him, while he was lying

face-down on the ground. Instead, Petitioners argue

only that the lower courts should have reached a different conclusion in applying the law to the facts of

this case.

Petitioners’ argument is premised on rejecting the

lower courts’ unanimous assessments on issues of

fact, thereby running afoul of basic legal principles,

including: the limited scope of interlocutory appellate

review; the summary judgment standard requiring

that facts be construed in favor of the nonmovants;

and this Court’s role as a decider of legal issues, not

assertions of factual errors. Also, the Petition contradicts Petitioners’ own prior admissions that Mr. Scott

posed no serious threat.

Petitioners fare no better in their critique of the

court of appeals’ interpretation of its own clearly-

2

established case law. The court of appeals was correct

to hold unanimously that, taking the facts in the light

most favorable to the plaintiffs, a jury could conclude

that the officers violated Mr. Scott’s Fourth Amendment rights. Nor did the court of appeals err in relying

on on-point circuit precedent to conclude that the law

was clearly established at the time of this case.

Petitioners also fail in their attempt to manufacture a circuit split. The so-called split is illusory. Rather than show that the Ninth Circuit has departed

from a majority rule, the cases Petitioners cite uniformly show that the excessive force analysis is inherently fact-dependent and context-sensitive. Indeed,

whereas Petitioners claim that various other circuits

are split from Ninth Circuit and Seventh Circuit authority, the out-of-circuit cases relied upon in the Petition—and other cases from those same circuits—

frequently cite with approval Ninth Circuit and Seventh Circuit authority, including a citation to the

Ninth Circuit’s ruling in this case.

Nor does the Petition present a proper vehicle for

review of the questions presented, which are not genuinely implicated by the facts of this case.

STATEMENT OF THE CASE

Construing the disputed facts in the light most favorable to the summary judgment nonmovant, the

lower courts set forth the following facts—which, in

key instances, the Petition contradicts and ignores.

3

Experiencing A Mental Health Crisis, Mr. Scott

Calls 911 For Assistance

In the early morning hours on March 3, 2019, 65year-old 1 Roy Scott was in the throes of a mental

health crisis, inside his own apartment. Pet.App.3a.

He “called the police for help,” “[b]ut he did not get

it”—instead they applied force that proved fatal.

Pet.App.2a.

Mr. Scott called 911, reporting that he feared being the potential victim of a crime: he told the 911 dispatcher that there were “multiple assailants outside

his apartment with a saw.” Pet.App.3a, 28a. Las Vegas Metropolitan Police Department Officers Smith

and Huntsman assigned themselves to Mr. Scott’s call

and arrived at his apartment shortly after he placed

the call. Pet.App.3a, 28a. Mr. Scott “was distressed

and hallucinating when Officers Smith and Huntsman arrived at his apartment.” Pet.App.3a.

When the officers knocked on his door and identified themselves, Mr. Scott yelled for them to break

down the door, hallucinating that there were people

in his apartment. Pet.App.3a, 28a. The officers, not

hearing anyone besides Mr. Scott inside the apartment, continued to knock and ordered Mr. Scott to

come to the door. Pet.App.3a, 28a. Within about two

minutes of knocking on Mr. Scott’s door, Officer Smith

told Officer Huntsman, “[T]his is a 421A for sure,” referring to a department code indicating that Mr. Scott

was mentally ill. Pet.App.3a-4a. A minute or so later,

1 Court of Appeals Excerpts of Record, vol. 5, at 881—hereafter, cited in the format, “5-ER-881.”

4

Officer Huntsman asked Mr. Scott if he had “been diagnosed with any mental health diseases.”

Pet.App.4a, 28a. The officers were not able to make

out Mr. Scott’s response. Pet.App.28a.

The officers then took time to regroup. With Mr.

Scott still in his apartment, the officers walked downstairs and discussed what they should do next.

Pet.App.4a, 28a. Officer Smith called dispatch to see

if they could call Mr. Scott back to convince him to

open his door; he noted to the dispatchers that Mr.

Scott “appeared to be mentally ill.” Pet.App.4a. The

officers agreed they did not want to enter Mr. Scott’s

apartment because he seemed “wacky.” Pet.App.4a,

29a.

Still contemplating their next steps, the officers

called their assigned Sergeant, again noting that Mr.

Scott “sound[ed] mentally ill.” Pet.App.4a, 29a. While

Officer Smith spoke to the Sergeant, Officer Huntsman shined his flashlight into a second story window

in Mr. Scott’s apartment, where Mr. Scott was visible.

Pet.App.29a. Peering into the window and shining the

flashlight at Mr. Scott, Officer Huntsman asked Officer Smith if he could see “that crazed look in [Mr.

Scott’s] eye.” Pet.App.4a, 29a.

After Officer Smith ended the call, he reported the

response from their Sergeant: “[A]t the end of the day

we can’t do anything if we don’t hear any reason to

have an exigent circumstance.” Pet.App.4a. Yet Officer Smith “then abruptly yell[ed] toward the window

at Scott: ‘Sir, go to the door.’” Pet.App.29a. The officer

approached Mr. Scott’s apartment door and resumed

knocking, and yelled, “Police Department come to the

5

door.” Pet.App.4a, 29a. Mr. Scott opened his door.

Pet.App.4a, 29a.

Mr. Scott Immediately Complies With The

Officers And Explains That He Is Mentally

Distressed

After opening his door, Mr. Scott was “compliant

and walk[ed] out of his apartment.” Pet.App.29a.

When Mr. Scott walked out, Officer Smith went down

the stairs in front of Mr. Scott’s apartment.

Pet.App.4a. Mr. Scott followed the officer down the

stairs holding a metal pipe at his side. Pet.App.4a,

29a. Officer Smith flashed a light at Mr. Scott and ordered him to drop the pipe; Mr. Scott “immediately”

complied. Pet.App.4a, 29a.

“Disoriented,” Mr. Scott asked the officers once,

then twice: “What am I supposed to do?” Pet.App.4a,

Pet.App.29a. When the officers directed Mr. Scott to

stand near a wall at the base of the stairs, he “immediately complied.” Pet.App.4a. Officer Huntsman

asked Mr. Scott if he had any other weapons.

Pet.App.4a-5a. Mr. Scott, again complying immediately, took a knife out of his front pocket and apologized to the officers, saying, “I am so sorry.”

Pet.App.5a. He then safely “handed the knife to

Huntsman handle-side out and did not make any

threatening gestures.” Pet.App.5a.

The officers shined a flashlight at Mr. Scott again

and ordered him to face the wall. Pet.App.5a. Mr.

Scott told them that the light bothered him and stated

that he had paranoid schizophrenia. Pet.App.5a, 30a.

Looking for help, he asked the officers twice, “Can you

6

just put me in the car please?” Pet.App.5a, 30a. When

asked about the pipe and knife, Mr. Scott explained

that he thought “people [we]re after [him],” and told

the officers he was “scared.” Pet.App.5a, 30a.

Officer Smith again directed Mr. Scott to face the

wall, to which Mr. Scott explained, “I’m paranoid, I

can’t turn around.” Pet.App.5a, 30a. When the officer

told Mr. Scott, “You’re fine,” Mr. Scott repeatedly replied, “I’m not fine.” Pet.App.5a, 30a. The Petition asserts Mr. Scott then reached inside his jacket pocket,

Pet.9, but that is heavily disputed. Pet.App.7a.

Without ever discussing it, the officers at some

point in this interaction claim to have “concluded [Mr.

Scott] met the qualifications for a medical hold for his

mental health and safety.” Pet.App.5a. The district

court found there was a genuine dispute of material

fact whether there was probable cause to detain Mr.

Scott for a mental health hold. Pet.App.51a.

Despite His Compliance, The Officers Perform A

Takedown And Then Restrain Mr. Scott Using

Bodyweight Force That Kills Him

The officers next went up to Mr. Scott and

grabbed his arms. Pet.App.5a. Mr. Scott, “in a plaintive voice,” “repeatedly” said “please, please, please.”

Pet.App.30a. Each officer held one of Mr. Scott’s arms

as they placed his hands behind his back.

Pet.App.30a. Over and over, he asked the officers

“‘what are you doing’ in a distressed voice.”

Pet.App.5a, 30a. He “plead[ed] with the officers to

‘stop.’” Pet.App.30a. Mr. Scott “visibly appear[ed] increasingly concerned and scared by the officers’

7

actions” and asked the officers “[w]hy are you all doing this to me?” as they continued to grab and hold

him. Pet.App.30a.

Then, the officers performed a takedown maneuver, forcing Mr. Scott to the ground, though the precise sequence of events is disputed. Pet.18 n.5;

Pet.App.22a, 31a, 38a-39a, 51a, 57a. Mr. Scott again

asked the officers why they were doing this to him.

Pet.App.31a. 2

After the takedown, “[w]hile on the ground,

Scott’s pleas escalate[d] in intensity—eventually

turning to screams.” Pet.App.31a. The officers held

Mr. Scott’s arms to his sides while he laid on his back.

Pet.App.5a. “In this position, Scott screamed, struggled, and pled with the officers to leave him alone for

over two minutes.” Pet.App.5a. Mr. Scott pleaded

“over and over ‘please leave me alone.’” Pet.App.31a.

The officers then rolled Mr. Scott on to his stomach and repeatedly ordered Mr. Scott to “stop.”

Pet.App.5a. “With Scott on his stomach and with his

hands restrained behind his back, Huntsman put his

2 Unconnected to any assertion of legal error, Petitioners

aver that “both body-worn cameras show that the degree of force

is indisputably minimal,” Pet.10; however, Petitioners are mistaken in calling the characterization “indisputabl[e].” Petitioners elsewhere concede that “the body-worn camera is

inconclusive” as to how Mr. Scott ended up on the ground, Pet.18

n.5, thereby negating their assertion that the video footage

shows that “the degree of force is indisputably minimal,” Pet.10.

Moreover, this issue has already been disputed. See CA9 AB 45

(“Under Defendants’ own policy, a takedown can be intermediate

force – or ‘Deadly Force’, i.e., ‘likely to produce death or serious

bodily injury.’”) (quoting 4-ER-801, 803).

8

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.”

Pet.App.5a. As Officer Huntsman applied his bodyweight to Mr. Scott, Mr. Scott’s “pleas turned increasingly incoherent and breathless.” Pet.App.6a.

After the officers handcuffed Mr. Scott, they tried

to roll him to his side; all the while, Mr. Scott “continued to incoherently cry out that he wanted to be left

alone.” Pet.App.6a.

Officer Huntsman then called paramedics to the

scene because Mr. Scott’s lip had been cut when he

was pushed to the ground. Pet.App.6a, 31a. After a

few minutes, Mr. Scott stopped yelling and moving.

Pet.App.6a, 31a. He did not respond to the officers’ attempts to wake him. Pet.App.6a, 31a.

Mr. Scott was still unresponsive when paramedics arrived. Pet.App.6a, 32a. He was pronounced dead

after he was removed from the scene. Pet.App.6a.

“[T]he 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.” Pet.App.32a. Plaintiffs’ position

was supported by an expert’s medical opinions.

Pet.App.6a, 39a.

The Administrators Of Mr. Scott’s Estate Sue

The Officers, And Summary Judgment Is Denied

Mr. Scott’s daughter, Rochelle Scott, and another

administrator of Mr. Scott’s estate sued the officers

and the Las Vegas Metropolitan Police Department.

9

Pet.App.6a. Plaintiffs brought a claim under 42

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

Amendment right to be free from excessive force,

along with other claims not at issue here. Pet.App.6a.

As to the excessive force claim, Plaintiffs “contend[ed]

that the force the officers subjected Scott to during

their interaction with him was not objectively reasonable.” Pet.App.37a.

The officers moved for summary judgment based

on their assertion of qualified immunity. The summary judgment record included both officers’ express

admissions that Scott had no intent to harm them (2ER-198:20; 2-ER-199:7-11; 2-ER-227:14; 2-ER268:12-17) and opinions from Plaintiffs’ medical and

police-practices experts (Pet.13-14; Pet.App.6a, 14a,

39a, 62a; 3-ER-381-431).

The district court denied summary judgment,

based on genuine issues of disputed fact. Pet.App.49a,

51a, 57a.

Under summary judgment standards, the district

court set forth assessments of the factual record, including as follows:

•

“Scott posed no threat to the officers or anyone

else during this incident.” Pet.App.40a (emphasis in original); Pet.App.45a (“Scott posed no

threat to anyone or himself.”).

•

“[S]evere, and ultimately lethal, force was used

against [Mr. Scott],” Pet.App.43a-44a, which

10

“proximate[ly]

Pet.App.32a.

cause[d]”

his

death,

•

Mr. Scott “was never suspected of a crime,” not

even “a minor crime.” Pet.App.28a, 50a.

•

Mr. Scott had “obvious and known mental

health difficulties.” Pet.App.68a.

The district court denied the officers’ qualified immunity defense for three independent reasons. First,

“[t]he use of force alleged by Plaintiffs is unconstitutional” because (i) there was no legal justification for

the use of force; (ii) even if Mr. Scott’s arrest was legally supportable, “it was unconstitutional for [the officers] to use substantial or nontrivial force on a

passive and compliant individual like Scott”; and

(iii) “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.”

Pet.App.48a-50a.

Second, “the law regarding [the officers’] unconstitutional conduct was clearly established at the time

of the officer’s [sic] March 2019 encounter with Scott.”

Pet.App.50a.

Third, the district court denied qualified immunity because there were several “genuine issues of disputed fact” including:

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,

11

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.

Pet.App.51a.

The Court Of Appeals Unanimously Affirms

The officers appealed. Pet.App.6a. The officers’

appellate briefing was notable in various respects. In

particular, the officers conceded that Mr. Scott did not

pose a serious or significant threat:

•

“The Officers acknowledge that Scott did not

present a serious immediate threat ….” CA9

OB 32.

•

“[I]t is admitted [Mr. Scott] was not resisting in

a manner that significantly threatened the Officers’ safety ….” Id.

•

“[T]he Officers have conceded that Scott did not

present a serious threat of death or bodily injury.” Id. at 38.

These concessions are notable, because the Petition ignores them—and takes the opposite position,

alleging that Mr. Scott posed an “immediate threat”

and “significant danger to the officers.” Pet.19, 21.

12

Otherwise, as they do here, the officers “devote[d]

much of their [appellate] briefing to their version of

events that [Plaintiffs] dispute[].” Pet.App.7a. For example, the officers sought to characterize the amount

of force that they used as “only … minimal force,” CA9

OB 7, even though this was contrary to the district

court’s assessment that “severe, and ultimately lethal, force was used against [Mr. Scott],” Pet.App.43a44a.

The court of appeals unanimously affirmed the

district court’s denial of summary judgment. The

court of appeals noted that “the district court denied

the officers’ request for qualified immunity because

the record presents multiple genuine issues of fact.”

Pet.App.7a. The panel went on to hold that it “lack[ed]

jurisdiction to redecide factual disputes” and “assuming each dispute is resolved in favor of” the Plaintiffs,

the officers were not entitled to qualified immunity on

the Plaintiffs’ Fourth Amendment claim. Pet.App.8a.

The court of appeals echoed the district court’s

key factual assessments, including as follows.

•

“Scott did not pose a danger to the officers or

others.” Pet.App.13a; see also id. (“[A] jury

could find he posed no threat to the officers.”).

•

The officers used “severe, deadly force” in “the

specific

circumstances

of

the

case.”

Pet.App.10a.

•

Mr. Scott “was not suspected of a crime.”

Pet.App.2a; see also Pet.App.12a (“Smith and

Huntsman did not suspect Scott of a crime.”).

13

•

“Scott was mentally ill,” as was apparent to the

officers. Pet.App.3a, 12a; see also Pet.App.4a,

5a, 13a-18a, 22a.

The court of appeals also stated that, far from being a criminal suspect, Mr. Scott had in fact “called

911 because he feared he was a victim of a crime.”

Pet.App.12a (emphasis in original); see also

Pet.App.2a (“Scott called the police for help.”).

The court of appeals held that “viewing the facts

in the light most favorable to Plaintiffs,” the officers

violated Mr. Scott’s Fourth Amendment rights.

Pet.App.9a. Specifically, the panel held “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.” Pet.App.15a.

The court of appeals next turned to the question

of whether the law was clearly established.

Pet.App.16a-18a. The panel determined 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. Citing the Ninth Circuit’s

decision in Drummond ex rel. Drummond v. City of

Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003), the

panel reasoned that it was clearly established “that it

is unconstitutional to use bodyweight force on the

back and neck of a prone and unarmed individual”

“[l]ong before Scott’s death.” Pet.App.17a. In fact, the

panel wrote, “[t]he 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

14

crime.” Pet.App.17a. Indeed, the panel found that

“[t]he similarities between this case and Drummond

are striking.” Pet.App.17a; contrast Pet.App.19a n.3

(citing Perez v. City of Fresno, 98 F.4th 919 (9th Cir.

2024), as an example where the facts of a case were

not like Drummond because there was an “intervening decisionmaker”).

The panel reversed the denial of summary judgment on selected other causes of action. Pet.App.23a24a.

The officers filed a petition for panel rehearing

and rehearing en banc. Pet.App.74a. The panel voted

to deny the petition, and no judge requested a vote on

whether to rehear the matter en banc. Pet.App.74a.

REASONS TO DENY CERTIORARI

I.

The Decision Below Is Correct.

The Petition should be denied. The Petition relies

on a litany of improper and meritless criticisms of the

panel’s opinion on issues of fact, without challenging

the panel’s statements of the law; and the decision below correctly applied the summary judgment standard and this Court’s precedents regarding qualified

immunity.

A. The

Petition

relies

on

factual

challenges that exceed the limited

scope of interlocutory appellate

review.

The Petition challenges the lower courts’ denial of

summary judgment in a manner that is improper in

15

an interlocutory appeal and contradicts Petitioners’

prior positions in this case.

“[A] district court’s denial of a claim of qualified

immunity,” at the summary judgment stage, is the basis for an interlocutory appeal only “to the extent that

it turns on an issue of law.” Mitchell v. Forsyth, 472

U.S. 511, 530 (1985). Under this limited scope of interlocutory appellate review of summary judgment

rulings, the plaintiff’s factual allegations must be accepted unless they are “blatantly contradicted by the

record.” Scott v. Harris, 550 U.S. 372, 380 (2007); see

Pet.App.8a (quoting same). A blatant contradiction

occurs where the simple facts are indisputable: e.g.,

where the lower court states that a vehicle’s driver

posed “little, if any, actual threat to pedestrians or

other motorists”—yet video footage conclusively

shows numerous extremely dangerous, illegal driving

maneuvers that “endanger human life.” Scott v. Harris, 550 U.S. at 378-80. The limits on interlocutory review apply strictly in this Court, whose function is to

decide significant legal questions—and not to engage

in review when “the asserted error consists of erroneous factual findings.” S. Ct. R. 10.

Here, the Petition contests the lower courts’ factual assessments on several critical issues in this case

without any evidence that remotely approaches blatant contradiction. Indeed, the Petition does not actually directly allege a blatant contradiction—although

its position is clearly premised on challenges on factual issues.

First, Petitioners assert that “[t]here is no dispute

that … [Mr. Scott] posed an immediate threat to [the

16

officers’] safety,” Pet.19, and that Mr. “Scott did pose

a significant danger to the officers,” Pet.21; see also

Pet.20. 3 The determination of whether a subject posed

danger is a “factual issue.” Scott v. Harris, 550 U.S. at

380. 4 The Petition’s assertions directly contradict the

court of appeals’ factual assessment that Mr. “Scott

did not pose a danger to the officers or others,”

Pet.App.13a, and the district court’s identical assessment, Pet.App.40a, 45a. Petitioners assert that

Scott’s “nonverbal” conduct posed danger, Pet.20; yet

there is no “nonverbal” conduct that blatantly contradicts the lower courts’ assessments.

Remarkably, the Petition’s assertion that Mr.

Scott posed a threat is directly contrary to Petitioners’

own prior express factual admissions. As stated above

(supra 11), Petitioners’ own appellate brief admitted

that “Scott did not present a serious immediate

threat” (CA9 OB 32), that Mr. Scott “was not resisting

in a manner that significantly threatened the Officers’ safety” (id.), and that Mr. “Scott did not present a

serious threat of death or bodily injury” (id. at 38).

Likewise, both officers expressly admitted that Scott

had no intent to harm them. 2-ER-198:20; 2-ER199:7-11; 2-ER-227:14; 2-ER-268:12-17.

3 See also Amicus Br. 2 (describing the issue of how officers

“respond[] when delirious individuals threaten the wellbeing of

themselves or others”).

4 See also Rice v. Morehouse, 989 F.3d 1112, 1123 (9th Cir.

2021); Hayes v. Cnty. of San Diego, 736 F.3d 1223, 1234 n.6 (9th

Cir. 2013); see also Robinson v. Pezzat, 818 F.3d 1, 9 (D.C. Cir.

2016); Roberts v. City of Omaha, 723 F.3d 966, 974 (8th Cir.

2013); Abraham v. Raso, 183 F.3d 279, 290 (3d Cir. 1999).

17

Petitioners’ newfound assertions that Mr. Scott

posed an “immediate threat” and “significant danger

to the officers” (Pet.19, 21) are based purely on their

say-so and come nowhere near setting forth evidence

that blatantly contradicts the lower courts’ factual

findings.

Second, the Petition goes astray regarding the

level of force used—another issue of fact. Chew v.

Gates, 27 F.3d 1432, 1442 (9th Cir. 1994) (what constitutes “deadly force” is a factual question). 5 Petitioners characterize the “bodyweight pressure employed

here” as “low-level force to effect an arrest.” Pet.32;

Pet.5 (contrasting “bodyweight pressure” with “an escalation to deadly force”). This characterization is incoherent at the outset because there was no crime and

thus no attempted “arrest.” More importantly, however, Petitioners’ assertions that the officers did not

use deadly force are directly contrary to the court of

appeals’ and the district court’s assessments of the

record.

The court of appeals explained that, based on the

“specific circumstances of the case,” what the officers

applied “was severe, deadly force.” Pet.App.10a. The

district court stated that “severe, and ultimately

5 See also Santos v. Gates, 287 F.3d 846, 855 (9th Cir. 2002)

(“the inference that the force used was substantial” is made by

“a jury”), overruled on other grounds by Pearson v. Callahan, 555

U.S. 223 (2009); Meadours v. Ermel, 483 F.3d 417, 423 n.6 (5th

Cir. 2007) (“the district court found that … use of the beanbag

gun constituted deadly force,” which was “a finding of fact we

cannot review at this stage”); Omdahl v. Lindholm, 170 F.3d

730, 734 (7th Cir. 1999) (“whether bean bag rounds constitute

deadly force” is a “material issue of fact”).

18

lethal, force was used against [Mr. Scott],”

Pet.App.43a-44a, which “proximate[ly] cause[d]” Mr.

Scott’s death, Pet.App.32a. In support of these factual

assessments, both courts cited Plaintiffs’ medical expert’s opinions (Pet.App.6a, 14a, 39a) and the facts of

the incident, including the prolonged “bodyweight

compression on Scott’s back and neck,” “while Scott’s

pleas turned increasingly incoherent and breathless.”

Pet.App.10a; see also Pet.App.31a. Petitioners have

no basis for rejecting the lower courts’ factual determinations on this point—much less evidence that blatantly contradicts those determinations. 6

Because the Petition is premised on the foregoing

factual mischaracterizations, it should be denied. Interlocutory review of the denial of qualified immunity

at summary judgment is available for legal issues

only and requires viewing the record in the light most

favorable to Mr. Scott. Mitchell, 472 U.S. at 530. Petitioners do not argue that they would be entitled to relief under the facts as articulated by the lower courts

for summary judgment purposes—whereby the officers applied severe and deadly force to Mr. Scott, despite his posing no threat and not being suspected of

a crime. And Petitioners present no evidence that

“blatantly contradict[s]” those characterizations in a

manner that would place their version of the facts beyond genuine dispute. Scott v. Harris, 550 U.S. at 380.

The Petition is therefore premised on assertions of

factual error that exceed the scope of interlocutory

6 Likewise, on a matter that is outside the scope of the Petition’s questions presented, the Petition makes erroneous assertions regarding the level of force used in the takedown

maneuver. See supra, note 2.

19

appellate review, and it should be denied for that reason alone. Furthermore, as explained infra, the Petition fails to show any error on the merits of denying

summary judgment based on the record as properly

characterized.

B. Summary judgment was properly

denied because a reasonable jury could

find the officers violated Mr. Scott’s

Fourth Amendment rights.

The Petition fails to show any legal error. Viewing

the record as required in the summary judgment posture, qualified immunity was properly denied. The decision below correctly applied this Court’s qualified

immunity case law to the facts before it. And the court

of appeals was correct in its determination that sufficient disputes of material fact precluded summary

judgment.

As noted, in this appeal of the denial of summary

judgment, “[t]he evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn

in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986). While Petitioners gesture toward

that standard, Pet.17, they ask this Court to ignore it.

They declare, as if undisputed, multiple factual assertions that flatly contradict what both the district

court and the court of appeals recited as either established against Petitioners or, at best, disputed. See supra § I.A; see also Statement of the Case, supra. And

Petitioners ignore the rule that “a ‘judge’s function’ at

summary judgment is not ‘to weigh the evidence and

determine the truth of the matter but to determine

whether there is a genuine issue for trial.’” Tolan v.

20

Cotton, 572 U.S. 650, 656 (2014) (quoting Anderson,

477 U.S. at 249) (noting “[t]his is not a rule specific to

qualified immunity”). The Court should decline Petitioners’ invitation to “improperly ‘weigh[] the evidence’ and resolve[] disputed issues in favor of the

moving party.” Id. at 657 (quoting Anderson, 477 U.S.

at 249).

1. The courts below were correct in concluding

that a reasonable jury could find that bodyweight

force was severe and deadly. See supra § I.A;

Pet.App.10a-11a, 38a-39a. Petitioners have articulated no basis for rejecting those assessments. 7

Nor is Petitioners’ position supported by their bizarre assertion that Mr. “Scott never complained

about his breathing.” Pet.21. If Petitioners are questioning the cause of death, that, too, is obviously a fact

7 The Amicus seeks to turn this case into a broad referendum on the level of medical risk of death from the application of

bodyweight force to a prone subject. Amicus Br. 6-12. Yet the

Amicus fails to address plaintiffs’ expert’s opinions regarding the

dangers of applying bodyweight force to a prone person’s neck,

“even if only done for several seconds” (Pet.App.39a, see also 3ER-381-93); the dangers include not only the risk of death by

hypoxia—but also, even absent death, the force poses other

threats of significant harm, including brain damage and kidney

damage. 3-ER-391-92. Risking such severe harm would not have

been warranted on the non-dangerous, non-criminal Mr. Scott.

Nor does the amicus address relevant case law, such as Abdullahi v. City of Madison, 423 F.3d 763, 765 (7th Cir. 2005), where

the individual in a prone position died from the application of

bodyweight pressure lasting “30–45 seconds.”

21

question, on which Plaintiffs’ expert has opined. If Petitioners are trying to cast doubt on whether Mr. Scott

indicated distress, Petitioners are simply contradicting the court of appeals’ conclusion that “Scott … cried

out with increasing distress and incoherence as the

officers’

force

escalated.”

Pet.App.17a-18a;

Pet.App.10a (Mr. “Scott’s pleas turned increasingly

incoherent and breathless”). At best, Petitioners are

raising a fact question as to whether Mr. Scott failed

to say that he could not breathe—and, if so, whether

it was because he had become incapable of clear

thought and speech.

2. Turning to the government’s interest in using

force, this Court has emphasized three factors: (i) “the

severity of the crime at issue,” (ii) “whether the suspect poses an immediate threat to the safety of the

officers or others,” and (iii) “whether he is actively resisting arrest or attempting to evade arrest.” Graham

v. Connor, 490 U.S. 386, 396 (1989).

Petitioners do not challenge the lower courts’ assessment that the officers did not suspect Scott of any

crime (Pet.App.2a, 12a, 28a, 50a, Statement of the

Case, supra), or that it was apparent that he was in

mental distress (Pet.App.3a-5a, 12a-18a, 22a; Statement of the Case, supra). Rather, he called the police,

because he feared being a victim of crime.

Pet.App.12a; see also Pet.App.2a.

Under summary judgment standards, Petitioners

come nowhere near overcoming the lower courts’ determinations that Scott did not pose a threat. See supra § I.A. Petitioners observe that Mr. Scott

previously had two weapons and argue that the courts

22

below “ignore[d] the nonverbal ways in which Scott’s

behavior posed a threat to the officers’ safety.” Pet.20.

As to the former, the courts below correctly noted that

Mr. Scott “immediately relinquished both objects

when directed to do so, handing the knife to the officers with the handle out.” Pet.App.13a. As to the latter,

Mr. Scott did not engage in any nonverbal threatening or aggressive behavior. The importance of any of

those facts is for a jury—certainly not this Court—to

weigh.

Similarly, the courts below held that the “genuine

issues of fact” “include whether Scott tried to reach for

his jacket pocket before falling to the ground.”

Pet.App.7a; see id. at 32a. So, Petitioners achieve

nothing by asserting, as if undisputed, that Mr. Scott

reached inside his jacket “contrary to the officers’ orders not to reach there.” Pet.17; see also id. at 8, 9.

Indeed, Petitioners have previously expressly admitted that Mr. Scott posed no serious or immediate

threat (see supra § I.A) and that Mr. Scott did not intend to harm the officers. See supra 11.

Nor is it accurate or pertinent for Petitioners to

assert that “[t]here is no dispute that the officers had

cause to support a mental health hold of Scott.”

Pet.19. The district court found “there are genuine issues of disputed fact as to whether the officers even

had legal authority to detain Scott, let alone arrest

him.” Pet.App.43a. And, regardless, a mental health

hold would not weigh in favor of using the severe and

deadly force that was employed here.

23

Moving to the final factor, the court of appeals

properly observed that there are disputes of material

fact as to whether Mr. Scott was actively resisting arrest: “[H]e stood where officers directed him to stand

and made no threatening movements.” Pet.App.14a.

While Mr. Scott asked the officers not to touch him

and attempted to pull away from the officers when he

was on the ground—after repeatedly explaining to the

officers that he had a mental illness and suffered from

paranoia—he “did not attack the officers or anyone

else, nor did he threaten to do so.” Pet.App.14a. Viewing the summary judgment record in the light most

favorable to Plaintiffs, the gestures Mr. Scott allegedly made (characterized by Petitioners as “thrashing,” Pet.13) may be interpreted as indicative of his

paranoid schizophrenia and mental distress

(Pet.App.5a, 30a), rather than a conscious decision to

actively resist. Furthermore, those gestures occurred

after the takedown was performed.

The panel also noted that Officers “Smith and

Huntsman ignored less intrusive alternatives to the

force they employed.” Pet.App.14a. And the officers

clearly had time to consider alternatives but instead,

“[a]t each stage of the encounter, it was the officers

who escalated the level of force, not Scott.”

Pet.App.41a. The officers had time to call their sergeant and consider next steps, and Mr. Scott repeatedly asked for instructions and attempted to

deescalate the situation. This is not a situation where

a judge is applying hindsight to the officers’ viewpoint. Rather, the officers, with plenty of time to assess, needlessly escalated the situation.

24

Indeed, Petitioners repeatedly cite case law regarding officers “mak[ing] split-second judgments—in

circumstances that are tense, uncertain, and rapidly

evolving.” Pet.4, 17, 31 (quoting Graham, 490 U.S. at

396-97). Yet those assertions do not fit the facts of this

case, where “[t]here was no urgency for [the officers]

to act because Scott never threatened or attacked

them.” Pet.App.53a.

“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.” Pet.App.14a. Petitioners’ attempt

to reinterpret the facts is insufficient to undermine

the court of appeals’ application of this standard to

the record before it.

C. Mr. Scott’s Fourth Amendment rights

were clearly established at the time of

his death.

Petitioners attack the court of appeals’ conclusion

that the law was clearly established at the time of his

death. But they do not—indeed, cannot—dispute that

the panel applied the correct legal standard: The law

is “clearly established” when a “reasonable officer

would know the officers’ conduct was unconstitutional.” Pet.App.16a; Pet.22. All that Petitioners present is a garden-variety challenge to the panel’s

application of that standard to a specific factual context. Even that attempt fails.

Petitioners’ bizarre assertion that the Ninth Circuit misconstrued its own case law, Pet.26, is

25

implausible, given that not a single Ninth Circuit

judge requested a vote on rehearing, Pet.App.74a.

Closer analysis only confirms the validity of the

lower courts’ decisions. The summary judgment context matters again in evaluating whether a right was

clearly established. Of course, “courts should define

the ‘clearly established’ right at issue on the basis of

the ‘specific context of the case.’” Tolan, 572 U.S. at

657 (citation omitted). But this Court has instructed

that “courts must take care not to define a case’s ‘context’ in a manner that imports genuinely disputed factual propositions.” Id. Yet this is what Petitioners

seek to do.

The court of appeals held that Mr. Scott’s Fourth

Amendment rights were clearly established as of

March 2019. The decision below pointed to Drummond, a case with “striking” similarities to this one.

Pet.App.17a. “Police officers were called to take a

mentally ill individual into custody for his own safety”

but instead applied bodyweight force that led to grievous injury, as Mr. Drummond’s injuries “caused him

to fall into a coma that … left him in a vegetative

state.” Drummond, 343 F.3d at 1062-63.

Like Mr. Scott, Mr. Drummond “had a history of

mental illness,” including schizophrenia, and “was

hallucinating and paranoid.” Id. at 1054. As here, the

officers knew Mr. Drummond was mentally ill and not

suspected of any crime but still “lean[ed] on his neck

and upper torso” when Mr. Drummond was lying

prone on the ground. See id. The officers “maintained

that pressure for a significant period of time, ignoring

his pleas for air.” Id. at 1063. The court there held

26

that “any reasonable officer would have understood

such force to be constitutionally excessive.” Id.

As they did below, Petitioners argue that Drummond did not clearly establish the law because officers forced their weight on Mr. Drummond after they

had handcuffed him. That is an illusory distinction.

As the court of appeals explained, construing the facts

in Mr. 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.” Pet.App.18a. Furthermore, in contrast

to the courts’ assessments that Mr. Scott posed no

threat, Mr. Drummond “represented a threat (to himself or possibly others) before he was handcuffed,”

thereby providing some government interest in handcuffing him, 343 F.3d at 1057—which was absent in

the present case. Yet the Ninth Circuit still found the

officers’ conduct to be unreasonable, establishing the

conduct here as unreasonable a fortiori. And Drummond speaks to “the dangers of pressure on a prone,

bound, and agitated detainee”—which aptly describes

Mr. Scott. Id. at 1061.

Petitioners split hairs pointing out immaterial

differences between this case and Drummond in an

attempt to argue that the decision below ignored this

Court’s precedents. 8 Not so. This Court does “not

8 Further, there is no conflict between the decision below

and this Court’s holding in Rivas-Villegas. Pet.26. There was no

dispute in Rivas-Villegas that the officer, responding to a violent

domestic dispute, “placed his knee on [the plaintiff] for no more

than eight seconds and only on the side of his back near the knife

that officers were in the process of retrieving.” Rivas-Villegas v.

27

require a case directly on point”; rather, “existing

precedent must have placed the … constitutional

question beyond debate.” Ashcroft v. al-Kidd, 563 U.S.

731, 741, (2011). Drummond was directly on point—

and certainly sufficient to place the constitutional

question beyond debate.

Contrary to Petitioners’ assertion, the Ninth Circuit did not extend Drummond here, and this case is

not part of a pattern of a supposedly expansive reading of Drummond by the Circuit. In accordance with

this Court’s pronouncements regarding qualified immunity, the Ninth Circuit has not relied on Drummond to say a right is clearly established when the

facts at hand are materially different than those presented. See, e.g., Perez, 98 F.4th 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.”).

Furthermore, although Drummond was clearly

on-point, the same result could have been reached

otherwise. Under the factual assessments of the lower

courts, the officers used severe and deadly force

(Pet.App.10a, 37a-39a) on a mentally-distressed individual who posed no danger to anyone (Pet.App.13a,

40a, 45a; see also Pet.App.3a, 12a, 68a) and was not

Cortesluna, 595 U.S. 1, 7 (2021). Here, officers were responding

to someone who believed himself to be a crime victim, and the

officers’ bodyweight pressure—applied to both Mr. Scott’s back

and neck—lasted more than a minute-and-a-half. Pet.12, 21.

28

suspected of any crime (Pet.App.2a, 12a, 28a, 50a)—

which clearly is not a “reasonable” use of force. Graham, 490 U.S. at 396. No additional prior case law is

required for such an “obvious” proposition as this one.

Rivas-Villegas, 595 U.S. at 6.

II. There Is No Circuit Split.

Petitioners claim that the decision below

“deepen[s]” a circuit split over whether the use of “prehandcuffing bodyweight pressure” to arrest someone

is reasonable under the Fourth Amendment. Pet.2730. The split Petitioners have invented is illusory. Petitioners attempt to turn cases in which courts find

there was excessive force—based on specific facts—

into a purported rule that excessive force can be

proven only where officers applied post-handcuffing

bodyweight pressure. Pet.27-30 (citing circuit cases

that found post-handcuffing bodyweight force to be

excessive).

Petitioners claim that the Ninth Circuit’s decision

here, along with the Seventh Circuit’s Abdullahi v.

City of Madison, 423 F.3d 763 (7th Cir. 2005), “break[]

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

Sixth and Tenth Circuits.” Pet.27. There is no such

“majority rule.” Indeed, in many of the cases relied

upon in the Petition, the other circuits cite with approval Ninth Circuit authority and/or the Seventh

Circuit’s Abdullahi.

Also, a closer analysis of the other circuits’ cases

otherwise show that they are fully consistent with the

decision below. That is hardly surprising given this

Court’s repeated observation that this type of Fourth

29

Amendment inquiry demands “careful attention to

the facts and circumstances” of the specific incident at

issue. Graham, 490 U.S. at 396. The Petition’s cited

cases merely highlight the “fact-dependent and context-sensitive” nature of the question presented.

Barnes v. Felix, 145 S. Ct. 1353, 1359 (2025). Assessing each case Petitioners highlight on its own specific facts undermines any notion of a split among the

courts of appeals.

The cited First Circuit case (Pet.28), for instance,

did not even address the question presented here. In

McCue v. City of Bangor, the First Circuit held it

lacked jurisdiction over the officers’ interlocutory appeal because there were genuine issues of material

fact as to when the individual stopped resisting and

how much force officers continued to use. 838 F.3d 55,

57, 62-63 (1st Cir. 2016). McCue does not conflict with

the Ninth Circuit’s decision here, as it never reached

the questions presented. Pet.i. Furthermore, while

the Petition (at 27) places the Seventh Circuit and

Ninth Circuit together on the other side of a supposed

split, McCue cited with approval both the Seventh

Circuit’s Abdullahi and the Ninth Circuit’s Drummond. McCue, 838 F.3d at 64-65.

Other cases Petitioners cite involve critical factual distinctions that explain the different results

each court reached. These factual differences include

factors highly relevant to the Fourth Amendment inquiry, including the “severity of the crime” prompting

police involvement, Graham, 490 U.S. at 396, the officers’ actions during the encounter, Tennessee v. Garner, 471 U.S. 1, 11 (1985), and the “stopped person’s

conduct,” which “indicates the nature and level of the

30

threat he poses, either to the officer or to others,”

Barnes, 145 S. Ct. at 1358 (citing Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015), and Graham, 490

U.S. at 396).

For example, Petitioners cite an unpublished

Third Circuit case as consistent with the supposed

“majority rule” the court below flouts. Pet.27, 29-30

(citing Bornstad v. Honey Brook Twp., 211 F. App’x

118 (3d Cir. 2007)). It is true that the Third Circuit

held that the officers’ use of bodyweight pressure on

an arrestee was objectively reasonable under the totality of the circumstances. Bornstad, 211 F. App’x at

123. But even a cursory review of the facts in Bornstad reveals that it is not like this case and that the

rule the Third Circuit applied is wholly consistent

with the Ninth Circuit’s decision below.

Most critically, Bornstad did not involve an individual experiencing a mental-health episode, like Mr.

Scott. Instead, the individual was “suspected of domestic violence that involved biting a child.” Id. That

offense, the Third Circuit said, was a “serious” one

that prompted police involvement. Id. And unlike Mr.

Scott, the individual in Bornstad escalated the encounter once officers arrived on scene. He “sw[ung] at

the officers and wrestl[ed] them to the ground,” thus

posing “an immediate threat to the safety of the officers and himself.” Id. In short, the “undisputed circumstances” were that the individual was an

“uncooperative, intoxicated, and physically imposing

individual suspected of domestic violence.” Id. at 124.

The Third Circuit confirmed that there was “no dispute that [the individual] himself quickly turned the

encounter into a physical altercation.” Id. at 123. And

31

because his conduct “was the cause of the escalation,”

the officers’ use of bodyweight pressure was deemed

reasonable. Id. at 125.

Indeed, in Bornstad, the Third Circuit specifically

distinguished Drummond, the Ninth Circuit case on

which the court below relied, on its particular facts.

The Third Circuit said it was “impossible to compare”

the circumstances of the plaintiff’s arrest in Bornstad

“with those in Drummond or [an analogous Sixth Circuit case], in which the plaintiffs became compliant

after they had been handcuffed and shackled.” 211 F.

App’x at 125. Rather than show a circuit split, Bornstad is an example of a court applying well-established law to a specific set of facts before it. That those

facts were distinguishable from this case here and

thus the outcome was different does not mean that

the circuits are divided on the question presented at

all.

Furthermore, a published Third Circuit case

found that there was a valid excessive force claim

where, inter alia, an officer “allegedly sat on [the victim’s] back while the other two officers restrained his

legs and attempted to place handcuffs on [him].” Rivas v. City of Passaic, 365 F.3d 181, 199 (3d Cir. 2004).

Hence, the Petition is mistaken in averring that the

Third Circuit has a rule that permits officers to use

bodyweight force while applying handcuffs.

In the Petition’s cited Fourth Circuit case

(Pet.28), Armstrong v. Village of Pinehurst, the court

found the officers’ application of bodyweight pressure

constitutionally permissible because the subject gave

officers “reason to believe [he] was dangerous” and

32

“threatened the safety of others.” 810 F.3d 892, 90001 (4th Cir. 2016). He escaped from the hospital and

began “wandering into traffic with little regard for

avoiding the passing cars,” and officers ultimately

seized him “only a few feet from an active roadway.”

Id. at 901. Because the officers were reasonably concerned about the subject fleeing into the street—

thereby actively endangering “individuals in passing

cars”—some degree of force like the use of bodyweight

pressure was “justified.” Id. Moreover, again, contrary to any supposed circuit split, Armstrong cited

with approval the Ninth Circuit’s decision in Drummond, recognizing that when an individual poses a

danger only to himself, “using force likely to harm the

[individual] is manifestly contrary to the government’s interest in initiating that seizure.” 810 F.3d at

901.

The Sixth Circuit, for its part, denied qualified

immunity to officers who used force on a nonverbal,

nonresponsive subject with severe autism. See Champion v. Outlook Nashville, Inc., 380 F.3d 893, 896 (6th

Cir. 2004). Petitioners claim that the Sixth Circuit’s

decision is in conflict with the decision below because

the bodyweight pressure the officers applied occurred

“after the arrestee was handcuffed and incapacitated.” Pet.29. But the Sixth Circuit’s holding 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,” Champion, 380 F.3d at 903, is wholly consistent with the Ninth Circuit’s holding in this case.

That is especially true given the lower courts’ finding

that “officers used their bodyweight on Scott while he

33

was restrained with his hands behind his back, which

is the functional equivalent of being handcuffed.”

Pet.App.18a. And yet again, Champion cited with approval the Ninth Circuit’s Drummond. See Champion,

380 F.3d at 904.

In a subsequent case involving an individual who

had committed a crime (interfering with the arrest of

another), the Sixth Circuit held that an officer had violated clearly-established law via the forceful

takedown and application of bodyweight on the back

of the prone individual, who was not handcuffed.

Moser v. Etowah Police Dep’t, 27 F.4th 1148, 1151,

1153 (6th Cir. 2022). This further debunks the Petition’s characterization of Sixth Circuit law as contrary to the ruling in the present case.

Nor do Petitioners gain traction from Tenth Circuit law. In one of the Petition’s cited cases (at 27),

Weigel v. Broad, the Tenth Circuit denied qualified

immunity where officers put bodyweight pressure on

an arrestee for some time “after it was clear that the

pressure was unnecessary to restrain him.” 544 F.3d

1143, 1152 (10th Cir. 2008). In the Petition’s other

cited Tenth Circuit case (at 27-28), Estate of Booker v.

Gomez, the court denied qualified immunity, reaffirming Weigel’s pronouncement that putting significant bodyweight pressure on a “suspect … [who] is in

a face-down prone position after being subdued and/or

incapacitated constitutes excessive force.” 745 F.3d

405, 424 (10th Cir. 2014) (quoting Weigel, 544 F.3d at

1155). Both cases cited with approval the Ninth Circuit’s Drummond. See Booker, 745 F.3d at 424; Weigel, 544 F.3d at 1155.

34

In a more recent ruling denying qualified immunity, the Tenth Circuit cited with approval the Ninth

Circuit’s ruling in this case and the Seventh Circuit’s

Abdullahi ruling—i.e., the two cases that the Petition

claims fall on the other side of the purported split.

Teetz ex rel. Lofton v. Stepien, 142 F.4th 705, 726 n.5

(10th Cir. 2025) (citing, inter alia, Scott v. Smith, 109

F.4th 1215, 1223 (9th Cir. 2024); Abdullahi, 423 F.3d

at 770-71). There is no circuit split.

As noted above, the Seventh Circuit—through its

Abdullahi decision—is the only court that Petitioners

allege aligns with the Ninth Circuit. Pet.5, 30. Yet Abdullahi is consistent not only with the decision below,

but also with all the decisions just discussed. Abdullahi involved a severe use of bodyweight force, on a

prone civilian, which led several different doctors to

conclude that the victim died of “chest and neck

trauma, including a collapsed left lung” and that “a

tremendous amount of air had been forced into the

tissue surrounding [his] lungs, as if his chest had been

crushed or squashed.” 423 F.3d at 766. Indeed, the

plaintiff contended that the officer knelt on the victim’s “back or neck with enough force to crush his

chest cavity, collapse his left lung and inflict severe

trauma on [his] neck.” Id. at 771. Thus, the court concluded, the “cumulative weight of the medical evidence … supports an inference of unreasonable

conduct.” Id. at 773. In those specific circumstances

and given the sheer amount of force used on the victim, the case is not inconsistent with the law of other

circuits—instead, as noted above, Abdullahi has been

cited with approval by the First Circuit and the Tenth

Circuit. Teetz, 142 F.4th at 726 n.5, McCue, 838 F.3d

at 64.

35

The Court’s recent affirmation of the “totality of

the circumstances” test in Fourth Amendment cases

underscores the highly fact-bound nature of the reasonableness inquiry. Barnes, 145 S. Ct. at 1357-58.

Under a totality-of-the-circumstances test, courts

must look at not just the moment of force but events

prior to the moment of force, as those events can inform whether a reasonable officer would have perceived an individual’s conduct as “threatening” or

“innocuous.” Id. at 1358. The reasonableness inquiry

therefore cannot be divorced from the particular circumstances of each case. Yet, Petitioners rely on a

handful of cases that vary in key respects, including

in the events leading up to the use of force and the

conduct of the individual and officers—while frequently citing with approval Ninth Circuit authority

and/or the Seventh Circuit’s Abdullahi. Petitioners’

attempt to reduce these cases to a bright-line rule

goes against the inherently context-sensitive nature

of the Fourth Amendment analysis.

III. This Case Is Not A Vehicle For Resolving

The Questions Presented.

The Petition should be denied for the additional

reason that this case is a wholly inappropriate vehicle

to resolve the questions it claims to present. As explained above, at 14-19, the Petition takes issue with

the facts as recited by the lower courts and disregards

the summary judgment standard, asking this Court

to go far beyond what is appropriate or permissible in

an interlocutory appeal of a denial of qualified immunity. For that reason alone, the Petition does not

provide an appropriate vehicle for addressing the

36

questions presented. Moreover, those questions are

not genuinely implicated by the facts here.

The “questions presented” focus on the supposed

distinction between force applied “until handcuffing”

is accomplished (i.e., “pre-handcuffing”) and force applied after handcuffing. Pet.i; see also Pet.5. However,

the distinction is illusory under the facts of this particular case. As the court of appeals explained, construing the facts in Plaintiffs’ 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.” Pet.App.18a.

Accordingly, this case is not a suitable vehicle for reviewing issues specific to “pre-handcuffing” force.

Additionally, the Petition’s distinction between

pre-handcuffing and post-handcuffing force is irrelevant based on the case’s facts. Under the lower courts’

assessment of the record, Mr. Scott posed no threat

(Pet.App.13a, 40a, 45a) and was not suspected of a

crime (Pet.App.2a, 12a, 28a, 50a)—which removes

any justification for the officers’ application of the

type of force that was necessary to apply handcuffs

(Pet.App.10a, 43a-44a). Hence, again, this case does

not provide a suitable vehicle for reviewing the question presented.

CONCLUSION

The Petition for a writ of certiorari should be denied.

37

Respectfully submitted,

Peter Goldstein

Counsel of Record

Jeremy Friedman

PETER GOLDSTEIN LAW

CORPORATION

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Suite 150

Las Vegas, NV 89145

(702) 474-6400

peter@petergoldsteinlaw.com

August 12, 2025