NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 20 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIELLA SLATER; et al., No. 17-56708
Plaintiffs-Appellants, D.C. No.
5:16-cv-01103-JFW-KK
v.
SHANNON DEASEY, Deputy; et al., MEMORANDUM*
Defendants-Appellees.
DANIELLA SLATER; et al., No. 17-56751
Plaintiffs-Appellees, D.C. No.
5:16-cv-01103-JFW-KK
v.
SHANNON DEASEY, Deputy; et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted May 13, 2019
Pasadena, California
Before: NGUYEN and OWENS, Circuit Judges, and ANTOON,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Joseph Slater passed away on April 15, 2015, during an arrest by Sheriff’s
deputies of the County of San Bernardino. Plaintiffs, the children and parents of
Slater, contend that Slater died from positional asphyxiation due to pressure
applied to his body while he was restrained and on his stomach. They filed suit
against the deputies pursuant to 42 U.S.C. § 1983, asserting that the deputies
violated the Fourth Amendment by using excessive force during the arrest. The
district court granted summary judgment to the deputies and County of San
Bernardino, concluding that although the force used during part of the encounter
was excessive when viewing the facts in the light most favorable to the Plaintiffs,
the deputies were nevertheless entitled to qualified immunity. The Plaintiffs
appeal the district court’s grant of qualified immunity to the deputies.1 We have
jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand
for trial.
Slater, who was known to the deputies from prior contacts as mentally ill
with a history of drug addiction, was allegedly pulling wires out of a gas station
building.2 Deputy Deasey responded to the scene and recognized that Slater was
**
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
1
Defendants cross-appeal the district court’s conclusion that their
application of the second and third hobbles violated the Fourth Amendment.
2
Nearby security cameras captured most of the incident.
2
on drugs. He placed Slater under arrest, handcuffed him without resistance, and
attempted to place him in the back of a patrol car with the intention of taking him
to the hospital for psychiatric care. Slater was initially compliant, but before he
was completely in the patrol car, he became agitated and fearful, telling Deputy
Deasey several times, “You’re not a cop, sir,” and, “You’re going to kill me.”
After Slater failed to comply with Deputy Deasey’s repeated orders to slide into
the car, the deputy deployed three pepper sprays at Slater after warning that he
would do so. Slater reacted by moving around and yelling things like, “You’re
blinding me.” Although the parties dispute how it happened, Slater ended up on
the ground with Deputy Deasey using his body weight to restrain Slater. Other
deputies who had responded to the scene, Gentry and Rude, assisted Deasey in
applying a hobble restraint to Slater’s ankles, connecting it to his handcuffs from
the back. Due to the slack in the hobble, Slater was able to sit on his own, and he
did so without further resistance. Under these circumstances, the district court
found that the application of this first hobble did not constitute excessive force.
We agree and affirm the district court’s conclusion.
After attempting to wash pepper spray off Slater, the deputies carried him to
the patrol car and slid him onto the back seat on his stomach, but Slater was able to
partially slide out of the open car door on the other side. The deputies pushed him
back onto the seat and applied second and third hobbles to hogtie Slater—the
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second hobble to bind his feet and hands more tightly together, and the third
hobble to secure him to the car. While the second and third hobbles were applied,
Slater remained on his chest and stomach. The officers admitted placing some
pressure on Slater’s ribs and shoulder during the application of the second and
third hobbles. The autopsy showed extensive bruising that Plaintiffs argue is
consistent with pressure to Slater’s shoulders and back. At some point, the
deputies realized that Slater was no longer moving. Fire Department paramedics
were already on the scene because Deasey had called for them before applying the
first hobble. The deputies removed Slater from the car and the paramedics
immediately began to treat him. They transported him to the hospital, but despite
medical personnel’s attempts to revive him, Slater passed away.
The district court found that the application of the second and third hobbles
constituted excessive force under the Fourth Amendment, but that the deputies
were entitled to qualified immunity because their actions did not violate clearly
established law. We agree that the force was excessive, but viewing the facts in
the light most favorable to Plaintiffs, see Bravo v. City of Santa Maria, 665 F.3d
1076, 1083 (9th Cir. 2011), we conclude that Defendants are not entitled to
qualified immunity.
When reviewing qualified immunity determinations made at the summary
judgment stage, we must consider (1) whether “[t]aken in the light most favorable
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to the party asserting the injury the facts alleged show the officer’s conduct
violated a constitutional right,” Saucier v. Katz, 533 U.S. 194, 201 (2001) (ellipsis
omitted), and (2) “‘whether the right was clearly established in light of the specific
context of the case’ such that ‘it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.’” Drummond ex rel.
Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003) (ellipsis
omitted) (quoting Headwaters Forest Def. v. County of Humboldt, 276 F.3d 1125,
1129 (9th Cir. 2002)); see also Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Defendants bear the burden of proving they are entitled to qualified immunity. See
Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005).
Fourth Amendment excessive force claims require courts to balance “the
nature and quality of the intrusion” with the “countervailing governmental interests
at stake” to evaluate the objective reasonableness of the force in context. Graham
v. Connor, 490 U.S. 386, 396 (1989). Further, “a detainee’s mental illness” is a
factor bearing on the government’s interest. Drummond, 343 F.3d at 1058
(discussing Deorle v. Rutherford, 272 F.3d 1272, 1282–83 (9th Cir. 2001)). We
therefore agree with the district court that the force used in applying the second
and third hobbles was excessive.
But we do not agree with the district court’s conclusion on the second prong
of the qualified immunity analysis—whether “it would be clear to a reasonable
5
officer that his conduct was unlawful in the situation he confronted.” Drummond,
343 F.3d at 1056 (quoting Headwaters, 276 F.3d at 1129). Drummond provides
“fair warning” to Defendants that their alleged actions were unconstitutional. 343
F.3d at 1060–61. In Drummond, we clearly established that “squeezing the breath
from a compliant, prone, and handcuffed individual . . . involves a degree of force
that is greater than reasonable.” Id. at 1059; see also id. at 1059–62. There,
officers placed body weight on the arrestee’s back and neck while he was
handcuffed and lying on his stomach. Id. at 1059. Here, viewing the evidence in
the light most favorable to Plaintiffs, Slater was hogtied and placed on his stomach
in the back of the police car, and the deputies applied pressure to his body during
the second and third hobbling, after pressure was already applied to his shoulders
in the prone position during the first hobbling. Deputy Gentry testified that he
placed pressure on Slater’s left rib area with his knee while applying the second
hobble. Deputy Brandt, who arrived after the application of the first hobble, and
who was positioned on the driver’s side of the car, testified that he put his foot
against Slater’s shoulder to prevent Slater from sliding out of the car. We conclude
that the circumstances here are sufficiently analogous to Drummond such that
Defendants were on notice that their use of force violated the Fourth Amendment.
We therefore reverse the district court’s grant of qualified immunity as to the
use of the second and third hobbles. We also vacate the district court’s dismissal
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of the Plaintiffs’ Fourteenth Amendment familial association claim because the
Defendants do not argue and have therefore waived any argument that the facts
here would not show deliberate indifference or shock the conscience.3 See
Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010).
We affirm the grant of summary judgment as to the Fourth Amendment and
Fourteenth Amendment claims for denial of medical care, given Deasey’s call for
medical personnel to stand by and Slater’s immediate treatment.
AFFIRMED in part, REVERSED in part, and REMANDED.
3
We also vacate the dismissal of the Plaintiffs’ state law assault,
battery, and wrongful death by negligence in force and restraint claims in light of
this decision.
7