Daniella Slater v. Shannon Deasey ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIELLA SLATER; DAMIEN SLATER, No. 17-56708
individually and as successors in
interest, by and through their D.C. No.
Guardian ad Litem Sandra Salazar; 5:16-cv-01103-
TINA SLATER; DAVID BOUCHARD, JFW-KK
individually,
Plaintiffs-Appellants,
v.
SHANNON DEASEY, Deputy;
previously erroneously named as
Shandon Deasey; PETER GENTRY,
Deputy; GARY BRANDT, Deputy;
MIKE RUDE, Sgt.; COUNTY OF SAN
BERNARDINO; DOES, 1–10, Inclusive,
Defendants-Appellees.
2 SLATER V. DEASEY
DANIELLA SLATER; DAMIEN SLATER, No. 17-56751
individually and as successors in
interest, by and through their D.C. No.
Guardian ad Litem Sandra Salazar; 5:16-cv-01103-
TINA SLATER; DAVID BOUCHARD, JFW-KK
individually,
Plaintiffs-Appellees,
ORDER
v.
SHANNON DEASEY, Deputy;
previously erroneously named as
Shandon Deasey; PETER GENTRY,
Deputy; GARY BRANDT, Deputy;
MIKE RUDE, Sgt.; COUNTY OF SAN
BERNARDINO,
Defendants-Appellants.
Filed December 3, 2019
Before: Jacqueline H. Nguyen and John B. Owens, Circuit
Judges, and John Antoon II, * District Judge.
Order;
Dissent by Judge Collins
*
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
SLATER V. DEASEY 3
SUMMARY **
Civil Rights
The panel denied a petition for panel rehearing and
denied a petition for rehearing en banc on behalf of the court,
and ordered that no further petitions shall be entertained.
Dissenting from the denial of rehearing en banc, Judge
Collins, joined by Judges Bea, Ikuta, and Bress, stated that
in holding that the police officers in this case violated clearly
established law when they restrained Joseph Slater in the
back of a patrol car, allegedly causing his death, the panel
continued this court’s troubling pattern of ignoring the
Supreme Court’s controlling precedent concerning qualified
immunity in Fourth Amendment cases. Judge Collins stated
that Plaintiffs had the burden to find a controlling precedent
that squarely governed the specific facts of this case. They
failed to carry that burden, and the district court’s grant of
summary judgment on qualified immunity grounds should
have been affirmed.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 SLATER V. DEASEY
ORDER
The panel voted to deny Defendants’ petition for panel
rehearing. Judges Nguyen and Owens voted, and Judge
Antoon recommended, to deny Defendants’ petition for
rehearing en banc.
The full court was advised of the petition for rehearing
en banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of
the votes of the nonrecused active judges in favor of en banc
consideration. See Fed. R. App. P. 35.
The petition for panel rehearing and the petition for
rehearing en banc are denied. No future petitions for
rehearing or rehearing en banc will be entertained.
COLLINS, Circuit Judge, with whom BEA, IKUTA, and
BRESS, Circuit Judges, join, dissenting from the denial of
rehearing en banc:
In holding that the police officers in this case violated
clearly established law when they restrained Joseph Slater in
the back of a patrol car, allegedly causing his death, the panel
continues this court’s troubling pattern of ignoring the
Supreme Court’s controlling precedent concerning qualified
immunity in Fourth Amendment cases. Indeed, over just the
last ten years alone, the Court has reversed our denials of
qualified immunity in Fourth Amendment cases at least a
half-dozen times, often summarily. By repeating—if not
outdoing—the same patent errors that have drawn such
repeated rebukes from the high Court, the panel here once
again invites summary reversal. I respectfully dissent from
our failure to rehear this case en banc.
SLATER V. DEASEY 5
Two particular features of the panel’s decision
underscore its neglect of binding Supreme Court authority.
First, in addressing whether the relevant law was “clearly
established,” the panel disregarded the Court’s clear
instruction that, in Fourth Amendment excessive force cases,
“police officers are entitled to qualified immunity unless
existing precedent ‘squarely governs’ the specific facts at
issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)
(citation omitted) (emphasis added). There is no such
squarely governing precedent here, and the panel did not
claim there was. Instead, the panel simply ignored Kisela
(and all of our other recent reversals in Fourth Amendment
qualified immunity cases) and denied qualified immunity
based on its identification of a single Ninth Circuit
decision—Drummond ex rel. Drummond v. City of Anaheim,
343 F.3d 1052 (9th Cir. 2003)—that the panel concluded
was “sufficiently analogous” to this case. See Slater v.
Deasey, Mem. Dispo. at 7 (amending 776 F. App’x 942 (9th
Cir. 2019)). In applying this lesser “sufficiently analogous”
standard, the panel committed the very same error for which
we were summarily reversed in Kisela. See 138 S. Ct.
at 1151 (Ninth Circuit had denied qualified immunity
“because of Circuit precedent that the court perceived to be
analogous”).
Second, the panel violated governing Supreme Court
authority when it extracted from Drummond a “clearly
established” rule that is framed at a much higher level of
generality than Drummond itself. As the Supreme Court has
stated, with evident exasperation, “[w]e have repeatedly told
courts—and the Ninth Circuit in particular—not to define
clearly established law at a high level of generality.” City &
Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1775–76
(2015) (citations and internal quotation marks omitted).
Despite professing to “‘hear the Supreme Court loud and
6 SLATER V. DEASEY
clear,’” Slater, Mem. Dispo. at 6 (citation omitted), the panel
is jurisprudentially a bit deaf, because its decision here
significantly raised the level of generality of the rule in
Drummond, and in doing so, it overlooked critical
differences between Drummond and this case.
The Plaintiffs’ claim in this tragic case is that, by using
“hobbles” (a form of restraining belt) to prevent Slater from
moving around in the patrol car, and by applying brief
incidental pressure to Slater while applying the hobbles, the
officers caused him to suffer “positional or restraint
asphyxia,” resulting in his death. According to the panel, the
officers were not entitled to qualified immunity for these
actions because “[i]n 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.’” Slater, Mem. Dispo. at 6 (quoting
Drummond, 343 F.3d at 1059) (ellipses in original). But this
statement literally elides critical differences between this
case and Drummond by improperly using ellipses to
generalize Drummond’s much more specific holding that
“any reasonable person” should have known that “squeezing
the breath from a compliant, prone, and handcuffed
individual despite his pleas for air involves a degree of force
that is greater than reasonable.” 343 F.3d at 1059 (emphasis
added). That critical feature of Drummond is missing here:
in this case, once the officers noticed that Slater appeared to
be in trouble, they promptly summoned paramedics (who
had examined Slater earlier and were still on the scene).
Moreover, Drummond differs in a second crucial respect,
inasmuch as the nature and extent of the force applied by the
officers in the two cases are very different. While the two
officers in Drummond literally “squeez[ed] the breath” from
Drummond by “press[ing] their weight against his torso and
neck, crushing him against the ground” for a “substantial
SLATER V. DEASEY 7
period of time,” 343 F.3d at 1059–60 & n.7, the specific
challenged actions of the officers here did not involve any
such direct, sustained compression with the officers’ body
weight. Instead, Plaintiffs claim that the manner in which
the hobbles were applied put Slater in a position such that,
coupled with the brief incidental pressure placed on his back
during securing of the hobbles, he was at risk of “positional
or restraint asphyxia.” Given these significant distinctions,
Drummond cannot be described as “‘squarely govern[ing]’
the specific facts at issue.” Kisela, 138 S. Ct. at 1153(citation omitted).
Under the qualified immunity standards that have been
clearly established by the Supreme Court, the district court’s
dismissal of this action should have been affirmed. I dissent
from our failure to rehear this case en banc.
I
Because Fourth Amendment excessive force claims
“depend[] very much on the facts of each case,” Mullenix v.
Luna, 136 S. Ct. 305, 309 (2015) (citation and internal
quotation marks omitted), it is important to review in some
detail the specific alleged actions of the officers that are
challenged in this § 1983 suit.
A
On April 15, 2015, sometime around 1:00 AM, Deputy
Sheriff Shannon Deasey of the County of San Bernardino
Sheriff’s Department responded to a radio call that a man
was pulling out wires from a Valero gas station building in
8 SLATER V. DEASEY
Highland, California. 1 After Deasey arrived at the Valero
station, he saw a man who fit the radioed description
crouched down near the front of the gas station. Deasey
immediately recognized the man as Slater. Deasey
personally knew, from multiple prior encounters, that Slater
had a history of mental illness and drug use.
Deasey identified himself to Slater and asked him what
he was doing, but Slater would not respond and instead
appeared “mesmerized” by a nearby electronic display
screen. Deasey handcuffed Slater without resistance and,
after walking Slater over to the police car, Deasey opened
the door and asked him to sit down. Slater sat down
sideways, with his feet outside the vehicle, but he resisted
placing his feet in the car. Slater became paranoid,
repeatedly denying that Deasey was a cop and saying that he
believed Deasey was going to kill him. When Slater refused
Deasey’s repeated commands to slide into the car, Deasey
threatened to use pepper spray on Slater, and then twice did
so. Ultimately, Deasey could not restrain Slater, and he
pulled him out of the car. Deasey instead attempted to
restrain Slater on the ground, and he again used his pepper
spray. Deasey then used a “knee strike” to get Slater to stop
resisting; the parties dispute whether the knee strike was on
Slater’s lower back or his buttocks/thigh area. Deasey
radioed for backup, and he also asked for a medical unit.
Deputy Pete Gentry arrived next on the scene, and he
saw Slater on the ground moving his feet back and forth
1
Because much of the incident was captured on the Valero station’s
cameras, and parts were also audio recorded on Deasey’s belt recorder,
many of the core facts of the incident are undisputed. Where the parties’
inferences from the video and audio evidence or deposition testimony
differ, I have relied on Plaintiffs’ version. See Tolan v. Cotton, 572 U.S.
650, 651 (2014).
SLATER V. DEASEY 9
while Deasey attempted to restrain him. Gentry suggested
that Deasey get a “hobble,” a form of belt used in restraining
detainees, and Gentry grabbed hold of Slater while Deasey
went to retrieve a hobble from his vehicle. When Deasey
returned, Gentry ultimately shifted positions and ended up
with his knee across Slater’s shoulderblades for about
40 seconds, while Slater was on his stomach on the ground.
After Gentry removed his knee from Slater’s back, Slater lay
on the ground on his right side.
Sergeant Mike Rude arrived next, and he assisted Deasey
in placing the hobble on Slater’s legs. Once the hobble was
applied, the three officers stepped back, and Slater was able
to sit upright on the ground. Slater continued in that position
until paramedics arrived from the California Fire
Department (“Cal Fire”). Throughout this time, Slater
continued to talk irrationally, saying names or numbers
seemingly at random. Deputy Gary Brandt then arrived, and
he waited with the other officers and Slater.
The Cal Fire paramedics examined Slater and concluded
that there was no medical emergency. Gentry and Rude then
carried Slater over to the gas station’s air and water area,
with Brandt following along, and they attempted to wash the
pepper spray off Slater. After attempting to wash Slater,
Brandt and Gentry carried Slater back to Deasey’s vehicle,
whose driver side rear door was still open. They then
attempted to place Slater headfirst and chest down into the
vehicle, and as they did so, Slater was flailing about.
Meanwhile, Rude went around to the other side of the
vehicle, opened the rear passenger door, and attempted to
pull Slater by his shirt while Brandt and Gentry pushed him
in from the driver side. Slater lay on his stomach for a few
seconds and then moved himself into an upright seated
position, where he continued moving about and speaking
10 SLATER V. DEASEY
irrationally. During this time, an ambulance had also
arrived, but after the ambulance personnel briefly
communicated with the Cal Fire paramedics, the Cal Fire
personnel told them that they could leave.
Gentry and Brandt attempted to put the vehicle’s seat
belt on Slater, with Gentry leaning in through the rear
passenger door, and Brandt leaning in through the opposite
door and handing Gentry the seat belt. Slater leaned away
from Gentry, but Gentry pulled him back up, and Brandt
closed the rear driver side door. Slater, who was still not
seatbelted, slid halfway out of the open passenger side door,
so that his body from the waist up was outside the passenger
side and his head was almost touching the ground. Gentry
and Brandt then placed Slater back into the car, face down,
with his head now pointing towards the driver side. Slater
continued moving in the back of the car, although the parties
dispute how much he was moving about.
Gentry suggested applying another hobble, and Brandt
retrieved one and gave it to Gentry. Gentry opened the
driver side rear door, put his left foot on the rear floor of the
car, leaned over Slater (who was chest down with his head
toward the driver side), and then applied the hobble to
Slater’s ankles. Gentry then passed part of the second
hobble through the cage area that separated the back seat
from the front seat, and Deasey, who was leaning through
the now open driver side front door, took hold of it. Gentry
then stepped out of the vehicle. During the time that Gentry
applied this second hobble, his right knee applied pressure
to Slater’s left rib area for up to 45 seconds. After grabbing
the second hobble in the front driver area, Deasey realized
that it was too short to attach to the front driver seat hook.
So Deasey attached a third hobble to the second one and
looped the third hobble to the back of the car and through the
SLATER V. DEASEY 11
open driver side rear door, which he then shut closed on the
hobble. During most of the time that Gentry and Deasey
were securing the second and third hobbles, Brandt, who was
standing outside near the open driver side rear door, had his
right foot against Slater’s left shoulder. Brandt claimed that
he did this in order to prevent Slater from sliding himself out
of the patrol car. Brandt’s right foot was against Slater’s left
shoulder for about 70 seconds. The entire process for
securing the second and third hobbles took about 86 seconds.
After the second and third hobbles were secured, Slater
lay mostly on his stomach on the backseat of the patrol car,
with his legs drawn up behind him towards his buttocks.
Slater had little, if any, ability to move his legs.
Brandt heard Slater make a spitting noise just before the
driver side rear door was closed. After about 40 seconds, the
officers noticed that Slater was no longer moving, had
stopped speaking, and might have stopped breathing. The
officers also noticed that Slater had vomited a small amount.
Gentry opened the driver side rear door and unsuccessfully
attempted to get Slater to respond. Slater was removed from
the car, and the Cal Fire paramedics attempted to resuscitate
him. Slater was transported to the hospital where he was
pronounced dead.
The pathologist who performed the autopsy of Slater
concluded that he had died of “acute methamphetamine
intoxication.”
B
Plaintiffs, who are Slater’s surviving relatives, brought
this suit against Defendants Deasey, Gentry, Brandt, and
Rude (“Defendants”), asserting a variety of claims under
12 SLATER V. DEASEY
42 U.S.C. § 1983 and under state law. 2 After discovery was
completed, Defendants moved for summary judgment. With
respect to Plaintiffs’ § 1983 claim of excessive force,
Defendants argued that (1) each application of force against
Slater was reasonable; (2) alternatively, Defendants were
entitled to qualified immunity as to any force that may have
been excessive; and (3) there was insufficient admissible
evidence to establish that Defendants’ application of force
caused Slater’s death. In connection with the latter
argument, Defendants submitted the report and deposition
testimony of the pathologist who performed the autopsy of
Slater, and they also filed a Daubert motion to exclude the
testimony of Plaintiffs’ causation expert.
Plaintiffs opposed both the summary judgment motion
and the Daubert motion. On the causation issue, Plaintiffs
contended that there was sufficient evidence to permit a
reasonable jury to conclude that “positional or restraint
asphyxia” was the cause of Slater’s death. In support of this
contention, Plaintiffs supplied the declaration of their
causation expert, who explained his opinion as to the cause
of death as follows:
In Mr. Slater’s case, respiratory compromise,
vomiting with aspiration of vomit into
Mr. Slater’s airway, and loss of
consciousness happened within seconds of
the final hobbles being attached and pulled
tight. The prone and hobbled position Mr.
Slater was in compromised his ability to
breathe, compressed his abdomen and chest,
and led to his vomiting and aspirating the
2
The County was named as an additional defendant only in the state
law claims.
SLATER V. DEASEY 13
vomit into his lungs. This prevented
sufficient breathing, leading to loss of
consciousness and resulting in death.
...
It is well accepted that inhibition of
respiration and/or inhibition of blood flow
caused by too much weight on the back for
too long can cause asphyxia. The probable
trigger for Mr. Slater’s vomiting and
ultimately for his asphyxial death was likely
the effects of the way he was restrained
prone, hogtied, and compressed even more
by the pressure on his back by two deputies.
Even more pressure was applied to Slater’s
abdomen and chest by his legs being drawn
upward and back towards his buttocks with
the addition of more hobbles and the
improvised technique used to increase the
tension on the 2nd and 3rd hobbles. This
transferred more of the weight of his legs to
his abdomen and chest, the fulcrum for his
body weight in his prone position in the car.
Plaintiffs’ expert also explained why he ruled out
methamphetamine overdose as the cause of death.
After a hearing on the motions and supplemental
briefing, the district court granted summary judgment to
Defendants. The court first held that, viewing the evidence
in the light most favorable to the Plaintiffs, “Deasey’s use of
pepper spray, Deasey’s knee strike to Slater, and the
application of the first hobble (including any force that may
have been used by the deputies in applying that hobble) were
14 SLATER V. DEASEY
reasonable and did not violate Slater’s Fourth Amendment
rights.” As to the second and third hobbles, the court held
that a reasonable jury could find that the force used was
excessive. The court nonetheless granted summary
judgment based on qualified immunity, holding that
“Plaintiffs have failed to carry their burden of demonstrating
that the constitutional right at issue was clearly established
such that a reasonable law enforcement officer would have
known that his challenged conduct was unlawful.” The court
dismissed the pendent state law claims without prejudice,
and it denied as moot the Daubert motion concerning
Plaintiffs’ causation expert.
C
A panel of this court affirmed in part and reversed in part.
The panel affirmed the district court’s conclusion that, as a
matter of law, the application of the first hobble did not
constitute excessive force. Slater, Mem. Dispo. at 3. As to
the second and third hobbles, the panel agreed that a
reasonable jury could find the force to be excessive, but the
panel reversed the grant of summary judgment based on
qualified immunity. Id. at 4–7. According to the panel, this
court’s decision in Drummond ex rel. Drummond v. City of
Anaheim, 343 F.3d 1052 (9th Cir. 2003), was “sufficiently
analogous” to put Defendants “on notice that their use of
force violated the Fourth Amendment.” Slater, Mem. Dispo.
at 7. In light of this ruling, the panel vacated the dismissal
of the state law claims and one additional claim, id. at 7
& n.4, and remanded the case “for trial,” id. at 2.
II
By failing to apply—and in some respects even to
mention—the controlling standards that govern the qualified
immunity inquiry under the Supreme Court’s and this court’s
SLATER V. DEASEY 15
recent precedent, the panel’s decision warrants en banc
review. See Fed. R. App. P. 35(b)(1)(A) (en banc review is
warranted when “the panel decision conflicts with a decision
of the United States Supreme Court or of th[is] court”). Had
those standards been applied, the panel would have had no
choice but to affirm the district court’s holding that the
officers were entitled to qualified immunity.
A
Although the Supreme Court has issued numerous
opinions over the last ten years that have refined and limited
what it means to say that a right was “clearly established”
for qualified immunity purposes, the panel largely ignored
that case law. Instead, quoting from a 2003 decision of this
court, the panel relied primarily on a more general
proposition that qualified immunity turns on:
“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.”
Slater, Mem. Dispo. at 5 (quoting Drummond, 343 F.3d
at 1056 (further citation and internal quotation marks
omitted)). Applying that more general standard, the panel
held that qualified immunity was inapplicable because “the
circumstances here are sufficiently analogous to Drummond
such that Defendants were on notice that their use of force
violated the Fourth Amendment.” Slater, Mem. Dispo. at 7.
The panel’s analysis disregards the relevant qualified
immunity standards as more specifically articulated in the
Supreme Court’s recent case law.
16 SLATER V. DEASEY
Since our 2003 opinion in Drummond, the Supreme
Court has issued no less than eight opinions reversing this
court’s denial of qualified immunity in Fourth Amendment
cases—four of which were summary reversals. City of
Escondido v. Emmons, 139 S. Ct. 500 (2019) (summarily
reversing); Kisela v. Hughes, 138 S. Ct. 1148 (2018)
(summarily reversing); City & Cty. of San Francisco v.
Sheehan, 135 S. Ct. 1765 (2015); Stanton v. Sims, 571 U.S. 3(2013) (summarily reversing); Messerschmidt v. Millender,
565 U.S. 535 (2012); Ashcroft v. al-Kidd, 563 U.S. 731(2011); Safford Unified School Dist. No. 1 v. Redding,
557 U.S. 364 (2009); Brosseau v. Haugen, 543 U.S. 194(2004) (summarily reversing). During that same time
period, the Court has issued six more opinions reversing the
other circuit courts’ denial of qualified immunity in Fourth
Amendment cases, and three of those were summary
reversals. District of Columbia v. Wesby, 138 S. Ct. 577(2018); White v. Pauly, 137 S. Ct. 548 (2017) (summarily
reversing); Mullenix v. Luna, 136 S. Ct. 305 (2015)
(summarily reversing); Carroll v. Carman, 574 U.S. 13(2014) (summarily reversing); Plumhoff v. Rickard, 572 U.S.
765 (2014); Pearson v. Callahan, 555 U.S. 223 (2009).
Given that the Supreme Court has thus issued a total of
14 opinions since 2003 reversing the circuit courts’ denials
of qualified immunity in Fourth Amendment cases,
including seven summary reversals, the panel clearly erred
when it disregarded much of what the Court said in those
cases. This recent Supreme Court precedent has reiterated
two important and closely related rules, and the panel
violated both of them in its decision.
The first of these rules is the more general principle—
applicable to all qualified immunity cases—“that clearly
established law should not be defined at a high level of
generality.” White, 137 S. Ct. at 552 (citation and internal
SLATER V. DEASEY 17
quotation marks omitted). Because an officer is entitled to
qualified immunity unless then-existing precedent “clearly
prohibit[s] the officer’s conduct in the particular
circumstances before him,” Wesby, 138 S. Ct. at 590(emphasis added), “general proposition[s]” are “of little help
in determining whether the violative nature of particular
conduct is clearly established,” al-Kidd, 563 U.S. at 742; see
also Plumhoff, 572 U.S. at 779 (more generally phrased
propositions do not defeat qualified immunity because they
“avoid[] the crucial question whether the official acted
reasonably in the particular circumstances that he or she
faced”). If it were permissible to generalize beyond the
specific points established in the existing precedent,
“‘[p]laintiffs would be able to convert the rule of qualified
immunity . . . into a rule of virtually unqualified liability
simply by alleging violation of extremely abstract rights.’”
White, 137 S. Ct. at 552 (citation omitted). This court has
nonetheless routinely strayed from this rule, prompting the
Supreme Court to admonish that it has “‘repeatedly told
courts—and the Ninth Circuit in particular—not to define
clearly established law at a high level of generality.’”
Sheehan, 135 S. Ct. at 1775–76 (citation omitted). In its
amended memorandum disposition, the panel now at least
pays lip service to this rule by quoting White’s recitation of
it, see Slater, Mem. Dispo. at 6, but the panel then still
proceeds to flout that rule by relying on higher-level
generalizations when defining the relevant clearly
established law. See infra at 19–25.
The second rule that emerges from the Supreme Court’s
recent case law is a close corollary of the first, and it
underscores the especially heightened need for specificity in
the context of a Fourth Amendment excessive force case.
Mullenix, 136 S. Ct. at 308. Because “[u]se of excessive
force is an area of the law ‘in which the result depends very
18 SLATER V. DEASEY
much on the facts of each case,’ . . . police officers are
entitled to qualified immunity unless existing precedent
‘squarely governs’ the specific facts at issue.” Kisela,
138 S. Ct. at 1153 (quoting Mullenix, 136 S. Ct. at 309)
(emphasis added). As this court recently emphasized in a
published decision concerning qualified immunity in the
Fourth Amendment context, “we must locate a controlling
case that ‘squarely governs the specific facts at issue,’ except
in the ‘rare obvious case’ in which a general legal principle
makes the unlawfulness of the officer’s conduct clear despite
a lack of precedent addressing similar circumstances.” West
v. City of Caldwell, 931 F.3d 978, 983 (9th Cir. 2019)
(citation omitted).
The panel does not contend (and, as the discussion below
makes clear, could not contend) that this is the “rare obvious
case” in which the general legal principles governing
excessive force would have been sufficient to alert “every
reasonable officer” that applying a further hobble to Slater
would violate the Constitution. Wesby, 138 S. Ct. at 590–
92. Accordingly, the panel was required to identify “existing
precedent” that “‘squarely governs’ the specific facts at
issue.” Kisela, 138 S. Ct. at 1153 (quoting Mullenix,
136 S. Ct. at 309); see also West, 931 F.3d at 983. The panel,
however, did not even recite that demanding standard, much
less apply it. Instead, the panel held that the officers here
were not entitled to qualified immunity because (in the
panel’s view) this court’s decision in Drummond was
“sufficiently analogous” to this case to put Defendants “on
notice that their use of force violated the Fourth
Amendment.” Slater, Mem. Dispo. at 7. This watered-down
“sufficiently analogous” test more closely resembles the
standard that we applied in Kisela and that earned us a
summary reversal by the Supreme Court. See 138 S. Ct.
at 1151. Moreover, as set forth below, the panel’s effort to
SLATER V. DEASEY 19
stretch Drummond to cover the facts of this case violates
both the Court’s repeated admonition not to resort to higher
levels of generality and the Court’s insistence on identifying
a controlling precedent that squarely governs the specific
facts at issue.
B
In contending that Drummond was alone sufficient to
defeat qualified immunity, the panel ignored two significant
differences between Drummond and this case.
1
First, the panel misstated the specific holding of
Drummond and, in doing so, it improperly raised the level of
generality of the rule established in that case. According to
the panel, Drummond “clearly established that ‘squeezing
the breath from a compliant, prone, and handcuffed
individual . . . involves a degree of force that is greater than
reasonable.’” Slater, Mem. Dispo. at 6 (quoting Drummond,
343 F.3d at 1059) (ellipses added by panel). The problem
with this contention is that the panel’s quotation improperly
used ellipses to edit out a crucial fact that makes clear that
Drummond is not analogous to this case. The actual quoted
language from Drummond is as follows, and it includes the
additional italicized phrase:
The officers—indeed, any reasonable
person—should have known that squeezing
the breath from a compliant, prone, and
handcuffed individual despite his pleas for
air involves a degree of force that is greater
than reasonable.
20 SLATER V. DEASEY
343 F.3d at 1059 (emphasis added). The language omitted
by the panel was not an irrelevant or insignificant detail; on
the contrary, the Drummond court repeatedly emphasized
this important factor in finding that the officers in that case
were not entitled to qualified immunity. See id. at 1061(“The officers allegedly crushed Drummond against the
ground by pressing their weight on his neck and torso, and
continuing to do so despite his repeated cries for air, and
despite the fact that his hands were cuffed behind his back
and he was offering no resistance. Any reasonable officer
should have known that such conduct constituted the use of
excessive force”) (emphasis added); id. at 1062 (“We need
no federal case directly on point to establish that kneeling on
the back and neck of a compliant detainee, and pressing the
weight of two officers’ bodies on him even after he
complained that he was choking and in need of air violates
clearly established law, and that reasonable officers would
have been aware that such was the case.”) (emphasis added).
On top of this express language from Drummond itself,
common sense confirms that there is an obvious difference
between continuing to apply substantial force while
disregarding explicit cries for air and applying force to a
detainee without any such protest (and therefore without any
such equivalent disregard of actual “notice of the detainee’s
respiratory distress”). Id. at 1060 n.7.
In view of this critical factor, Drummond cannot be
characterized as a “controlling case that squarely governs the
specific facts at issue.” West, 931 F.3d at 983 (citations and
internal quotation marks omitted); see also Kisela, 138 S. Ct.
at 1153. Here, the first indications that Slater might be
struggling to breathe were his spitting noises and vomiting,
see Slater, Mem. Dispo. at 7, but these acts were first
observed after Slater was restrained, and the officers did not
ignore them. The spitting noise occurred just before the
SLATER V. DEASEY 21
driver side rear door was closed after the application of the
third hobble—meaning that it occurred after the officers had
completed their actions in applying force to Slater.
Likewise, the vomiting was noticed through the window
after the rear door had been closed and before the officers
promptly reopened it to check on Slater. When the officers
confirmed that he was in distress, Slater was immediately
attended to by the Cal Fire paramedics who were still on the
scene. By promptly responding to the first indication that
Slater was in distress, and calling over medical assistance,
the officers here did the opposite of the officers in
Drummond, who instead ignored the detainee’s pleas for air
and continued pressing on his body with the full weight of
two officers. 343 F.3d at 1059, 1061–62.
This crucial difference—that, unlike in this case, the
officers in Drummond continued to apply force despite the
detainee’s pleas for air—“‘leap[s] from the page.’” Kisela,
138 S. Ct. at 1154 (quoting Sheehan, 135 S. Ct. at 1776). Or,
to be more precise, it would have leapt from the page had the
panel not effaced the text. Moreover, by excising a factor
that was crucial to Drummond’s holding, the panel here
necessarily raised the level of generality of the rule
established in Drummond, thereby contravening the
Supreme Court’s repeated admonition “not to define clearly
established law at a high level of generality.” Emmons,
139 S. Ct. at 503. 3
3
The panel points to three out-of-circuit decisions to justify its
disregard of Drummond’s emphasis on the officers’ awareness of the
detainee’s respiratory distress. To the extent that these decisions
assertedly found a violation of clearly established law despite the lack of
any apparent respiratory distress, but see, e.g., McCue v. City of Bangor,
838 F.3d 55, 59 (1st Cir. 2016) (noting that the defendant officer
continued to press his knee on McCue’s neck “even after McCue twice
22 SLATER V. DEASEY
2
Beyond that, there is a second respect in which
Drummond differs critically from this case. As Drummond
itself emphasized, the force applied there involved “two
officers leaning their weight on Drummond’s neck and torso
for a substantial period of time,” creating an obvious risk of
“compression asphyxia.” 343 F.3d at 1059–60 & n.7.
Indeed, in holding that the officers should have been aware
of the risks of placing their full body weight on a detainee,
the Drummond court emphasized the well-known and well-
publicized risks of “compression asphyxia” no less than four
times in its opinion. Id. at 1056, 1059, 1061, 1062. By
contrast, in this case, there is no evidence that the officers
ever put their full body weight on Slater during application
of the second and third hobbles, much less that they did so
for a substantial period of time. As noted earlier, at most,
Gentry’s right knee applied pressure to Slater’s left rib area
shout[ed] in distress that the officers are hurting his neck”), they did so
only in the context of condemning an officer’s direct application of
“significant, continued force on a person’s back ‘while that [person] is
in a face-down prone position after being subdued and/or
incapacitated,’” id. at 64 (quoting Weigel v. Broad, 544 F.3d 1143, 1155
(10th Cir. 2008) (in turn quoting Champion v. Outlook Nashville, Inc.,
380 F.3d 893, 903 (6th Cir. 2004) (emphasis added) (further quotation
marks omitted))). Thus, to the extent that these other circuits might be
said to have thereby extended and generalized Drummond’s holding,
they have done so in a way that does not cover this case. See, e.g.,
Champion, 380 F.3d at 903 (“This is neither a ‘positional asphyxia’ case
nor a case in which the officers lightly touched or placed incidental
pressure on Champion’s back while he was face down”); see generally
infra at 19–25. Where, as here, the officers’ actions do not involve that
sort of obviously dangerous direct application of full body weight to
compress the detainee’s back or neck for a sustained period of time,
Drummond confirms the continued importance of whether “the police
were actually put on notice of the detainee’s respiratory distress.”
343 F.3d at 1060 n.7. The officers here did not ignore any such notice.
SLATER V. DEASEY 23
for up to 45 seconds while Gentry applied the second hobble,
and given that Gentry had his left leg on the car floor during
that whole time, this incidental pressure would not have
applied Gentry’s full body weight to Slater. Likewise,
Brandt did not place his full body weight on Slater, because
Brandt was standing outside the car and extended his right
foot into the car and against Slater’s left shoulder. And
Brandt’s right foot was thus positioned against Slater’s left
shoulder for only about 70 seconds. As the panel itself
elsewhere concedes, the evidence at most shows that the two
officers applied “some pressure” to Slater. Slater, Mem.
Dispo. at 4. The pressure applied by the two officers with
their bodies here was materially different, both in nature and
in duration, from that applied in Drummond. This point is
underscored by Drummond itself, which in a footnote
distinguished two cases in which incidental or light pressure
was applied to a struggling detainee for less than one minute.
See 343 F.3d at 1060 n.7.
To be sure, this case involves not just the alleged
compression from the officer’s knee and foot, but also the
alleged breathing difficulty created by the position in which
the hobbles ultimately put Slater. But this factor only further
underscores how very different this case is from Drummond
and how that decision cannot reasonably be said to
“‘squarely govern[]’ the specific facts at issue” here. Kisela,
138 S. Ct. at 1153 (citation omitted). Indeed, in opposing
summary judgment below, Plaintiffs’ theory was not, as in
Drummond, a straightforward case of compression asphyxia;
rather, Plaintiffs contended that the evidence would permit a
reasonable jury to conclude that “positional or restraint
asphyxia” was the cause of Slater’s death. As Plaintiffs’
causation expert explained, “[t]he prone and hobbled
position Mr. Slater was in compromised his ability to
breathe, compressed his abdomen and chest, and led to his
24 SLATER V. DEASEY
vomiting and aspirating the vomit into his lungs. This
prevented sufficient breathing, leading to loss of
consciousness and resulting in death.” Plaintiffs’ expert also
identified the officers’ pressure on Slater during the
application of the second and third hobbles as an additional
factor in Slater’s alleged asphyxia, but only in combination
with the asserted breathing difficulties created by his prone
and hobbled position. Drummond, however, does not
address such a hybrid positional asphyxia theory, and it does
not provide a basis for concluding that any reasonable officer
would have recognized that Slater’s hobbled position might
cause him to asphyxiate.
The panel’s broadening of Drummond confirms just how
far the panel has departed from the controlling qualified
immunity standards. The focus of the qualified immunity
inquiry has to be on the specific actions of the officers, and
whether the law clearly established that “the Fourth
Amendment prohibited the officer[s’] conduct in the
situation [they] confronted.” Mullenix, 136 S. Ct. at 309(citation and internal quotation marks omitted). But the
panel’s broadening of Drummond converts it into a rule
about outcomes: if “asphyxia” results, it does not matter
whether it was caused by the officers’ use of direct
“compression” (as in Drummond) or was caused by a
collection of restraints, together with brief incidental
compression (as in this case). However, the relevant
question for qualified immunity is not what outcome
occurred as a result of the officers’ actions; the relevant
question is what specific actions did the officers take.
By ignoring all of these obvious differences between
Drummond and this case, the panel has effectively applied
an unstated but much broader rule that condemns a set of
police restraints that are not covered by the requisite
SLATER V. DEASEY 25
controlling precedent that “squarely governs the specific
facts at issue.” Kisela, 138 S. Ct. at 1153 (citation and
internal quotation marks omitted). The panel’s reasoning
and result cannot be squared with the Supreme Court’s
demanding standards for defeating qualified immunity.
III
The panel committed a further, related error in
suggesting that Defendants bear the burden of proof on the
disputed qualified-immunity issues presented in this appeal.
In reciting the general standards governing qualified
immunity, the panel stated that “Defendants bear the burden
of proving they are entitled to qualified immunity. See
Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005).” Slater,
Mem. Dispo. at 5. But on the cited page, Moreno merely
recites the boilerplate summary judgment point that,
“[b]ecause the moving defendant bears the burden of proof
on the issue of qualified immunity, he or she must produce
sufficient evidence to require the plaintiff to go beyond his
or her pleadings.” 431 F.3d at 638 (emphasis added). That,
of course, is not the relevant burden of proof on the
qualified-immunity issues presented in this appeal. Rather,
the applicable—and well-settled—rule is that “[t]he plaintiff
bears the burden of proof that the right allegedly violated
was clearly established at the time of the alleged
misconduct.” Romero v. Kitsap Cty., 931 F.2d 624, 627 (9th
Cir. 1991) (emphasis added); see also Shafer v. Cty. of Santa
Barbara, 868 F.3d 1110, 1118 (9th Cir. 2017). Other
circuits follow the same rule. See, e.g., Callahan v. Unified
Gov’t of Wyandotte Cty., 806 F.3d 1022, 1027 (10th Cir.
2015) (“When a defendant raises the defense of qualified
immunity, the plaintiff bears the burden to demonstrate that
the defendant violated his constitutional rights and that the
right was clearly established.”); Findlay v. Lendermon,
26 SLATER V. DEASEY
722 F.3d 895, 900 (7th Cir. 2013) (plaintiff failed to “carry
his burden of showing a clearly established right” when he
failed to identify precedent showing that “any reasonable
officer would know [the conduct at issue] violated the
constitution”).
The panel’s error on this point is significant, because it
underscores that Plaintiffs had the burden to find a
controlling precedent that squarely governs the specific facts
of this case. They failed to carry that burden, and the district
court’s grant of summary judgment on qualified immunity
grounds should have been affirmed.
I respectfully dissent from the denial of rehearing en
banc.