Reply 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 Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

__________________________________________________________

REPLY IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

__________________________________________________________

CRAIG R. ANDERSON

MARQUIS AURBACH CHTD.

10001 Park Run Drive

Las Vegas, NV 89145

(702) 382-0711

canderson@maclaw.com

MEGAN M. WOLD

Counsel of Record

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

mwold@cooperkirk.com

Counsel for Petitioners

i

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ....................................... ii

REPLY BRIEF .............................................................1

I. The Decisions Below Is Wrong As A Matter Of

Law. ........................................................................2

II. The Ninth Circuit’s Decision Represents A

Minority View That Splits With Other

Circuits. ..................................................................8

III. The Case Is An Excellent Vehicle To Decide The

Question Presented. .............................................10

CONCLUSION ..........................................................12

ii

TABLE OF AUTHORITIES

CASES

PAGE(S)

Abdullahi v. City of Madison,

423 F.3d 763 (7th Cir. 2005) ...........................10

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) .........................................11

City & County of San Francisco v. Sheehan,

575 U.S. 600 (2015) .......................................7, 8

City of Escondido v. Emmons,

586 U.S. 38 (2019) .............................................7

City of Tahlequah v. Bond,

595 U.S. 9 (2021) ...............................................7

Cuevas v. City of Tulare,

107 F.4th 894 (9th Cir. 2024) ...........................5

District of Columbia v. Wesby,

583 U.S. 48 (2018) .........................................7, 8

Drummond v. City of Anaheim,

343 F.3d 1052 (9th Cir. 2003) .......................4, 5

Kisela v. Hughes,

584 U.S. 100 (2018) .......................................7, 8

Moser v. Etowah Police Dep’t,

27 F.4th 1148 (6th Cir. 2022) ...........................9

Mullenix v. Luna,

577 U.S. 7 (2015) .......................................5, 7, 8

Rivas v. City of Passaic,

365 F.3d 181 (3d Cir. 2004) ..............................9

Rivas-Villegas v. Cortesluna,

595 U.S. 1 (2021) ................................... 5, 6, 7, 8

iii

Teetz ex rel. Lofton v. Stepien,

142 F.4th 705 (10th Cir. 2025) .........................9

White v. Pauly,

580 U.S. 73 (2017) .........................................7, 8

OTHER AUTHORITIES

Lee Anne Denyer, Sacramento County deputies no

longer responding to mental health

emergencies without crime component, KCRATV (Feb. 4, 2025), https://perma.cc/Q3TVMAC2.................................................................7

James Taylor, Sacramento Metro Fire District says

sheriff office’s new policy change creates

danger for crews, CBS NEWS (Jan. 29, 2025),

https://perma.cc/GGQ7-WZEQ .....................6, 7

Madison Keavy, Sacramento sheriff explains new

policy to turn away certain calls for help,

CBS NEWS (Feb. 4, 2025),

https://perma.cc/9E94-8X5U.............................6

1

REPLY BRIEF

When Officers Huntsman and Smith responded to

Roy Anthony Scott’s 911 call, they faced a challenging

situation. They correctly identified that Scott was

experiencing a mental health crisis and needed help,

but he had been armed and was refusing to comply

with their directions. The officers secured the scene

for their own safety and for the safety of medical

personnel so that Scott could get the help he needed.

Qualified immunity exists to protect officers in

circumstances like these. Officers Huntsman and

Smith acted reasonably based on the facts they knew

at the time, and no case of this Court nor of the Ninth

Circuit had clearly established that using a limited

amount of bodyweight pressure to handcuff Scott for

a patdown was unconstitutional.

Yet, contrary to the precedents of this Court, the

panel engaged in armchair quarterbacking, declaring

that Scott posed no threat to the officers and was

unarmed. Pet.App.16a–17a. Officers Huntsman and

Smith could not have known that based on the facts

available to them at the time. And they certainly could

not have known that their conduct was a clearly

established constitutional violation. To conclude

otherwise, the panel relied on a single inapposite

precedent in which the police action was extreme:

applying bodyweight pressure to a prone, handcuffed,

compliant, unarmed individual for twenty minutes

despite his pleas for air.

Certiorari is warranted in this case. The panel’s

decision contravenes this Court’s precedent and

breaks with the decisions of other courts of appeal.

And this is an excellent vehicle, given that the

relevant events were captured by the officers’ body-

2

worn cameras. This case is a good candidate for a

summary disposition reversing the panel’s denial of

qualified immunity.

Respondents’ only counterarguments are based

on illusory factual disputes in this case or artful

glosses on this case’s similarities and dissimilarities

with other precedents. Those efforts do not undermine

Petitioners arguments in support of certiorari: the

decision below is clearly wrong, it deepens a circuit

split, and this case is an excellent vehicle for

addressing the reasonability of using limited

bodyweight pressure for the purpose of applying

handcuffs.

It is important that this Court correct the panel’s

errors. Because of the decision in this case, at least

one major police department—the Sacramento

Sheriff’s Office—has adopted a policy of not

responding to individuals experiencing a mental

health crisis. This policy endangers those individuals,

their families and communities, and the first

responders who must try to help them without police

support.

Petitioners urge this Court to grant the petition

and reverse.

I.

The Decision Below Is Wrong As A Matter Of

Law.

Respondents claim that the Petition is founded on

factual disagreements with the courts below, BIO at

15–19, but that is not true. The courts below did not

engage in fact-finding at all—they rejected qualified

immunity at the summary judgment stage. And that

holding is egregiously wrong as a matter of law, not

because of a discrepancy about facts. No precedent of

this Court nor of the Ninth Circuit clearly established

3

that the officers’ conduct during their encounter with

Scott was unconstitutional.

The officers’ body-worn cameras show that the

officers observed Scott hallucinating about armed

intruders before he then produced two weapons, first

a pipe and then a knife—the latter after he had

already said he was unarmed. In response, the officers

repeatedly asked Scott to submit to a patdown, but

Scott refused. Despite the officers’ attempts to

accommodate Scott’s paranoia, Scott continued to

ignore their orders and unzipped his jacket when

instructed not to do so. When Scott’s resistance to

their instructions intensified, the officers controlled

Scott’s descent to the ground, 1 restrained him by his

limbs initially, and when that proved insufficient,

they applied bodyweight pressure to Scott for no more

than 95 seconds, solely for the purpose of applying

handcuffs. Once Scott was handcuffed, they

immediately rolled Scott to the recovery position,

called for medical assistance, and monitored him.

Scott was speaking before, during, and after

handcuffing. See Pet.6–13.

There is no material, factual dispute about these

events because they are observable in the body-worn

camera footage, and they demonstrate that the

officers acted reasonably in their interaction with

Scott. But faced with these same facts, the panel

below articulated a new legal rule: “that bodyweight

force on the back of a prone, unarmed person who is

The parties dispute whether the officers executed a “take

down” of Scott or whether Scott fell, but because Respondents are

entitled to have factual inferences at summary judgment drawn

in their favor, Petitioners will assume that the officers used some

degree of force to bring Scott to the ground. See Pet. at 10.

1

4

not suspected of a crime is constitutionally excessive.”

Pet.App.16a–17a. And the panel held that this rule

had been clearly established by a single precedent,

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

Cir. 2003). That holding was wrong as a matter of law.

In the panel’s own words, in Drummond, “officers

pressed their weight against an individual’s torso and

neck, crushing him against the ground” and “[t]hey

maintained that pressure for a significant period of

time while the suspect was prone, handcuffed, offered

no resistance, and repeatedly told the officers that he

could not breathe and that they were choking him.”

Pet.App.17a (cleaned up). But these facts are readily

and materially distinguishable from the facts of this

case:

•

At most, the bodyweight pressure here

lasted 95 seconds, not the twenty minutes

at issue in Drummond. 343 F.3d at 1054–

55 (officers applied knees and bodyweight

pressure, then applied a hobble restraint

twenty minutes later).

•

Here, the bodyweight pressure lasted only

as long as necessary to accomplish

handcuffing despite Scott’s physical

resistance, while in Drummond, the target

was prone, handcuffed, and not resisting

while officers applied their weight. Id. at

1059.

•

Here, Scott never complained that he could

not breathe, and he appeared to be

breathing before, during, and after the

officers applied bodyweight pressure, while

in Drummond, the target “repeatedly told

the officers that he could not breathe and

5

that they were choking him.” Id. at 1054.

(quotation marks omitted).

Indeed, the officer conduct at issue in Drummond was

so extreme that the Ninth Circuit held that it

“need[ed] no federal case directly on point to establish

that” it was unconstitutional. Id. at 1062. It is hard to

see how Drummond could have clearly established a

rule that pre-handcuffing bodyweight pressure is

unconstitutional when Drummond itself concerned

abuse so extreme that it was deemed clearly

unconstitutional even without any federal case

directly on point. 2

Thus, the panel erred as a matter of law when it

relied on Drummond to clearly establish that Officers

Huntsman and Smith acted unconstitutionally by

using bodyweight pressure as a last resort to handcuff

Scott. This Court has instructed that “[a] clearly

established right is one that is sufficiently clear that

every reasonable official would have understood that

what he is doing violates that right.” Mullenix v.

Luna, 577 U.S. 7, 11 (2015) (per curiam) (internal

quotation marks omitted). “[E]xisting precedent must

have placed the statutory or constitutional question

2 If it were decided today, Drummond almost certainly could

not rely on the obviousness principle, as the Ninth Circuit has

recently indicated that “the obviousness principle will rarely—if

ever—be available” in the Fourth Amendment (as opposed to the

Eighth Amendment) context. Cuevas v. City of Tulare, 107 F.4th

894, 902 (9th Cir. 2024). That is because “[a] categorical

statement that conduct obviously violates the Fourth

Amendment is particularly hard to make when officers

encounter suspects every day in never-before-seen ways,

including countless confrontations … that yield endless

permutations of outcomes and responses.” Id. (internal quotation

marks omitted).

6

beyond debate.” Rivas-Villegas v. Cortesluna, 595 U.S.

1, 5 (2021) (per curiam) (quotation marks omitted).

That “inquiry must be undertaken in light of the

specific context of the case, not as a broad general

proposition.” Id. (internal quotation marks omitted).

That standard is not met here. Drummond did not

place “beyond debate” that pre-handcuffing

bodyweight pressure is unconstitutional. The panel

applied Drummond here for a “broad general

proposition,” and not according to the specific context

of that case and this one—all in direct contravention

of this Court’s precedents. Id. (quotation marks

omitted).

If there were any doubt that the panel’s holding

strayed far outside the law established in Drummond,

it is dispelled by the dramatic consequences of this

case for police departments in the Ninth Circuit.

Explicitly based on the decision below, the Sheriff of

Sacramento County, California announced that his

department would no longer respond to non-criminal

mental health calls. Madisen Keavy, Sacramento

sheriff explains new policy to turn away certain calls

for

help,

CBS

NEWS

(Feb.

4,

2025),

https://perma.cc/9E94-8X5U. An assistant sheriff in

Sacramento communicated the policy change, saying

that through the Scott v. Smith decision below, “[t]he

courts have made it very clear that really any use of

force is questionable” during a call that originates as

a mental health call, and “[t]his is really impacting

our ability to deliver service.” James Taylor,

Sacramento Metro Fire District says sheriff office’s

new policy change creates danger for crews, CBS NEWS

(Jan. 29, 2025), https://perma.cc/GGQ7-WZEQ

(quoting Assistant Sheriff Matt Petersen). In

response, Sacramento firefighters have explained that

7

the sheriff’s policy change “put[s] our folks in harm’s

way,” because firefighters “rely on sheriff’s deputies to

make sure a scene is safe before making contact with

a patient.” Id. (quoting Metro Fire spokesperson

Parker Wilbourn). Yet under the sheriff’s new policy,

officers will not respond to individuals who are

experiencing a psychotic episode or are suicidal, even

when they are armed. According to the sheriff, the

change is necessary because the Ninth Circuit’s ruling

in this case has “tied our hands.” Lee Anne Denyer,

Sacramento County deputies no longer responding to

mental health emergencies without crime component,

KCRA-TV (Feb. 4, 2025), https://perma.cc/Q3TVMAC2 (quoting Sacramento County Sheriff Jim

Cooper).

Consequences like that are not consistent with a

“garden-variety challenge … to a specific factual

context,” as Respondents claim the petition to be, BIO

at 24, nor are they consistent with Respondents’ view

that “the Ninth Circuit did not extend Drummond

here,” BIO at 27. In fact, the panel here announced a

new legal rule that swept so far beyond Drummond, it

has caused police departments to abandon critical

public services for fear of liability. This is not a

petition seeking fact-bound error correction: it is a

case that presents exactly the kind of qualified

immunity error that this Court has granted certiorari

to correct many times before. In just the last ten years,

this Court has reversed denials of qualified immunity

at least eight times, and six of those were summary

dispositions. Rivas-Villegas, 595 U.S. 1 (2021) (per

curiam) (summarily reversing); City of Tahlequah v.

Bond, 595 U.S. 9 (2021) (per curiam) (summarily

reversing); City of Escondido v. Emmons, 586 U.S. 38

(2019) (per curiam) (summarily reversing); Kisela v.

8

Hughes, 584 U.S. 100 (2018) (per curiam) (summarily

reversing); District of Columbia v. Wesby, 583 U.S. 48

(2018); White v. Pauly, 580 U.S. 73 (2017) (per curiam)

(summarily reversing); Mullenix, 577 U.S. 7 (2015)

(per curiam) (summarily reversing); City & County of

San Francisco v. Sheehan, 575 U.S. 600 (2015).

This case warrants the same treatment as those

cases and is appropriate for a summary disposition.

The officers’ actions are clear from their body-worn

camera footage, and even while drawing all inferences

about disputed material facts in Respondents’ favor,

it is impossible to say that the officers’ actions were

clearly established constitutional violations after

Drummond. In concluding otherwise, the panel

ignored this Court’s longstanding admonition to

determine what is “clearly established” “in light of the

specific context of the case,” and “not as a broad

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

(quotation marks omitted).

Petitioners urge the Court to call for the record to

review the body-worn camera footage and to grant

certiorari and reverse, with or without full briefing

and argument.

II. The Ninth Circuit’s Decision Represents A

Minority View That Splits With Other

Circuits.

After arguing that this case is not cert-worthy

because it is merely the application of law to specific,

disputed facts, Respondents amplify factual

distinctions between cases decided among the circuits

to claim that “[t]here [i]s [n]o [c]ircuit [s]plit.” BIO at

28. While qualified immunity cases of course arise in

specific factual circumstances, Petitioners have

nonetheless demonstrated that the Ninth Circuit’s

9

holding here conflicts with the analysis that the

majority of circuits have undertaken in similar

circumstances. Indeed, Respondents’ arguments only

confirm that decision below is an outlier that divides

the Ninth Circuit from the majority of its sister

circuits.

First, Respondents claim that some circuits other

than the Ninth and Seventh have denied qualified

immunity based on pre-handcuffing bodyweight

pressure, but a review of the cited cases refutes the

argument. In Rivas v. City of Passaic, 365 F.3d 181

(3d Cir. 2004), the Third Circuit did not find “that

there was a valid excessive force claim where … an

officer allegedly sat on the victim’s back … to place

handcuffs on him,” as Respondents claim, BIO at 31

(cleaned up). The Third Circuit actually denied

qualified immunity because of a disputed factual

issue—whether the arrestee was not resisting arrest

but having a seizure —and also because an officer was

alleged to have “jammed a flashlight into [the

arrestee’s] mouth … and later struck him in the head

with the same flashlight.” Rivas, 365 F.3d at 199. In

Moser v. Etowah Police Dep’t, the Sixth Circuit denied

qualified immunity where a police officer was alleged

to have forcibly taken down and broken the hip of a

female bystander who was merely protesting that the

officer had the wrong suspect—again, nothing like the

holding at issue here. 27 F.4th 1148, 1151, 1153 (6th

Cir. 2022); see BIO at 33. And in Teetz ex rel. Lofton v.

Stepien, the Tenth Circuit denied qualified immunity

where officers used a prone restraint for long periods

of time, including one twelve-minute stretch, on an

individual who was not resisting and did not require

such restraint. 142 F.4th 705, 727 (10th Cir. 2025); see

10

BIO at 34. Again, this holding is not similar to the

Ninth Circuit’s holding here.

Second, Respondents’ arguments highlight that

even when compared to the Seventh Circuit’s decision

in Abdullahi, where that court denied qualified

immunity based on the application of prearrest

bodyweight pressure, the Ninth Circuit’s decision

here remains an outlier. In Abdullahi v. City of

Madison, the victim suffered a crushing injury

indicating that the officer had not merely applied

bodyweight pressure but had crushed the suspect

“with enough force to crush his chest cavity, collapse

his left lung, and inflict severe trauma on [his] neck.”

423 F.3d 763, 771 (7th Cir. 2005); see BIO at 34. Here,

no medical evidence suggests severe trauma of this

kind.

Petitioners have identified a split in authority in

which the Ninth Circuit takes a minority position as

against the First, Third, Fourth, Sixth, and Tenth

Circuits, which have held that bodyweight pressure

becomes unreasonable only when applied after arrest,

to an incapacitated individual. Pet. at 27–30.

Certiorari is warranted to resolve this split.

III. This Case Is An Excellent Vehicle To Decide

The Question Presented.

This case presents an excellent vehicle for

deciding the question presented.

This case features body-worn camera footage of

the police encounter, almost entirely from not one but

two angles. This offers exceptional clarity about the

officers’ actions in this case.

Respondents claim that this case is a poor vehicle

because Petitioners “take[] issue with the facts as

11

recited by the lower courts,” BIO at 35; see BIO at 16,

but it is Respondents who refuse to engage with the

evidence in this case: the body-worn camera footage.

Respondents never substantively address that footage

because it is inconsistent with the characterizations of

the record on which Respondents rely. The footage

shows that Scott did not “immediately” comply with

police directions. BIO at 5. And while Respondents

claim that “Mr. Scott posed no threat,” BIO at 36,

“Fourth

Amendment

reasonableness

is

predominantly an objective inquiry,” in which a court

asks “whether the circumstances, viewed objectively,

justify the challenged action.” Ashcroft v. al-Kidd, 563

U.S. 731, 736 (2011) (cleaned up). The officers

objectively could not have known that “Mr. Scott

posed no threat,” given that he was actively

hallucinating attackers, had been armed with two

weapons, and had falsely indicated he was unarmed

before producing a knife from his belt in contravention

of police instructions. These circumstances are

apparent from the body-worn camera footage.

Respondents’ characterization of the evidence, even if

borrowed from a judicial opinion, is not “fact-finding”

that is due deference from this Court. The body-worn

camera footage makes this case an excellent vehicle

for review.

Respondents also suggest that Petitioners have

taken inconsistent positions in this litigation, but that

is false. BIO at 11–12, 16. The cited passages of

Petitioners’ appellate briefing are entirely consistent

with the arguments in the Petition: that “Scott was

clearly resisting the Officers’ attempts to pat him

down and handcuff him,” and that although the

resistance was not a serious threat that would justify

deadly force, it nonetheless “justified the restraining

12

of Scott’s limbs with empty-hand techniques.”

Opening Brief at 32 (9th Cir. Aug. 7, 2023), Doc. 9; see

also id. at 38 (“[T]he Officers have conceded that Scott

did not present a serious threat of death or bodily

injury. Therefore, the Officers only used the minimal

force necessary to place Scott in handcuffs.” (emphasis

added)). Respondents cite these passages out of

context to suggest that the Petitioners previously

argued that no force could have been justified when in

fact, Petitioners argued that force was justified, even

if deadly force was not—and that is why the officers

used only the minimum force necessary to secure

Scott by handcuffing him for a patdown.

CONCLUSION

The petition should be granted and the decision

below reversed, with or without full briefing and

argument.

CRAIG R. ANDERSON

MARQUIS AURBACH CHTD.

10001 Park Run Drive

Las Vegas, NV 89145

(702) 382-0711

canderson@maclaw.com

MEGAN M. WOLD

Counsel of Record

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

mwold@cooperkirk.com

Counsel for Petitioners

August 29, 2025