UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 3 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DANIELLA SLATER; et al., No. 17-56708
Plaintiffs-Appellants, D.C. No.
5:16-cv-01103-JFW-KK
v. Central District of California,
Riverside
SHANNON DEASEY, Deputy; et al.,
ORDER
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.
Before: NGUYEN and OWENS, Circuit Judges, and ANTOON,* District Judge.
The Memorandum Disposition, filed on June 20, 2019, and reported at 776
F. App’x 942 (9th Cir. 2019), is amended as follows:
At 776 F. App’x at 944, the sentence beginning with is amended as follows:
We take seriously the Supreme Court’s warning that “‘clearly established
*
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
law’ should not be defined ‘at a high level of generality.’” White v. Pauly,
137 S. Ct. 548, 552 (2017) (citation omitted); see also S.B. v. County of San
Diego, 864 F.3d 1010, 1015 (9th Cir. 2017) (“We hear the Supreme Court
loud and clear.”). This case presents no such risk, as Drummond provides
“fair warning” to Defendants that their alleged actions were unconstitutional.
At 776 F. App’x at 945, the following sentences are added after :
Prior to closing the patrol car door, Deputy Brandt heard Slater make a
spitting noise. Before long, Slater had vomited and largely stopped
breathing.
At 776 F. App’x at 945, the following footnote is added after the paragraph
ending :
Drummond specifically involved officers squeezing the breath from an
individual “despite his pleas for air.” 343 F.3d at 1059. However, no court
has interpreted Drummond to require a restrained suspect to “plead for air”
before receiving Fourth Amendment protection. McCue v. City of Bangor,
838 F.3d 55, 64 (1st Cir. 2016) (“[E]xerting significant, continued force on a
person’s back ‘while that [person] is in a face-down prone position after
being subdued and/or incapacitated constitutes excessive force.’”) (citation
omitted); Weigel v. Broad, 544 F.3d 1143, 1155 (10th Cir. 2008)
(“[A]pplying pressure to [a suspect’s] upper back, once he was handcuffed
and his legs restrained, was constitutionally unreasonable due to the
significant risk of positional asphyxiation associated with such actions.”);
Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004)
(“Creating asphyxiating conditions by putting substantial or significant
pressure, such as body weight, on the back of an incapacitated and bound
suspect constitutes objectively unreasonable excessive force.”).
2
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 3 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.
AMENDED
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
3
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
4
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). We take seriously the
Supreme Court’s warning that “‘clearly established law’ should not be defined ‘at
a high level of generality.’” White v. Pauly, 137 S. Ct. 548, 552 (2017) (citation
omitted); see also S.B. v. County of San Diego, 864 F.3d 1010, 1015 (9th Cir.
2017) (“We hear the Supreme Court loud and clear.”). This case presents no such
risk, as 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
6
the car. Prior to closing the patrol car door, Deputy Brandt heard Slater make a
spitting noise. Before long, Slater had vomited and largely stopped breathing. 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.3
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
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.4 See
3
Drummond specifically involved officers squeezing the breath from
an individual “despite his pleas for air.” 343 F.3d at 1059. However, no court has
interpreted Drummond to require a restrained suspect to “plead for air” before
receiving Fourth Amendment protection. McCue v. City of Bangor, 838 F.3d 55,
64 (1st Cir. 2016) (“[E]xerting significant, continued force on a person’s back
‘while that [person] is in a face-down prone position after being subdued and/or
incapacitated constitutes excessive force.’”) (citation omitted); Weigel v. Broad,
544 F.3d 1143, 1155 (10th Cir. 2008) (“[A]pplying pressure to [a suspect’s] upper
back, once he was handcuffed and his legs restrained, was constitutionally
unreasonable due to the significant risk of positional asphyxiation associated with
such actions.”); Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir.
2004) (“Creating asphyxiating conditions by putting substantial or significant
pressure, such as body weight, on the back of an incapacitated and bound suspect
constitutes objectively unreasonable excessive force.”).
4
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
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.
8