James O'Doan v. Joshua Sanford ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES O’DOAN, No. 19-15623
Plaintiff-Appellant,
D.C. No.
v. 3:17-cv-00293-
LRH-CBC
JOSHUA SANFORD, Reno Police
Officer; CADE LEAVITT, Reno Police
Officer; CITY OF RENO, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted May 15, 2020 *
San Francisco, California
Filed March 19, 2021
Before: Ryan D. Nelson and Daniel A. Bress, Circuit
Judges, and Frederic Block, ** District Judge.
Opinion by Judge Bress;
Dissent by Judge Block
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Frederic Block, United States District Judge for
the Eastern District of New York, sitting by designation.
2 O’DOAN V. SANFORD
SUMMARY ***
Civil Rights
The panel affirmed the district court’s summary
judgment for defendants in an action brought pursuant to
42 U.S.C. § 1983 and the Americans with Disabilities Act
alleging that police officers used excessive force against
plaintiff, lacked probable cause to arrest him, and prepared
deliberately fabricated police reports.
Police officers responded to a 911 call reporting that
plaintiff had experienced an epileptic seizure, was trying to
break windows, and had fled his home naked. In
apprehending plaintiff on a sidewalk after he refused to
comply with commands to stop, officers struggled
physically with plaintiff and used a “reverse reap throw” to
bring plaintiff to the ground. Plaintiff was transported to the
hospital and, after being treated and discharged, he was
released into police custody and charged with indecent
exposure and resisting a police officer. Plaintiff was booked
into the county jail overnight and released on bail the next
day. Charges were later dismissed.
The panel held that plaintiff’s § 1983 claims failed
because the police officers were entitled to qualified
immunity. Addressing first the claim that the use of the
reverse reap throw amounted to excessive force, the panel
evaluated the facts of this case against the applicable body
of Fourth Amendment law, and concluded, at the very least,
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
O’DOAN V. SANFORD 3
that Officer Sanford did not violate clearly established law
when he executed the maneuver on plaintiff. The panel
noted that officers were called in to a “Code 3” situation, a
request for immediate police assistance for a “violent”
individual. They arrived to find plaintiff naked and moving
quickly on a busy street. Plaintiff repeatedly resisted
officers’ commands to stop and then turned to the officers in
a threatening manner, with his fists clenched. Plaintiff
identified no precedent that would suggest the force used
here was excessive, much less that excessiveness was clearly
established on these facts.
The panel held that the district court correctly granted
summary judgment on plaintiff’s Americans with
Disabilities Act (“ADA”) claim that officers failed to make
a reasonable accommodation when detaining him. The
panel held that plaintiff had not shown that a lesser amount
of force would have been reasonable under the
circumstances, or how personnel with different training
would have acted differently given the exigencies of the
situation.
Addressing plaintiff’s unlawful arrest claim, the panel
could not say that the officers violated clearly established
law in determining they had probable cause to arrest plaintiff
after witnessing him engage in conduct that indisputably
violated Nevada law. Nor did any clearly established law
require the officers to conclude that probable cause had
dissipated once plaintiff was discharged from the hospital.
Nothing that happened in the emergency room could or did
change the fact that plaintiff had, without doubt, engaged in
illegal conduct—which the officers had personally observed
and experienced firsthand. Assuming plaintiff could assert
a parallel ADA wrongful arrest claim against the City, that
claim likewise failed.
4 O’DOAN V. SANFORD
The panel lastly considered plaintiff § 1983 claim that
the officers violated due process because they did not discuss
plaintiff’s reported epileptic seizure in their police report and
affidavit supporting probable cause. While the panel could
agree that more information is usually better than less and
that including more specific information about reports of
plaintiff’s possible seizure would have been preferable, the
question here was whether officers violated clearly
established law. The panel concluded that they plainly did
not.
Dissenting in part, Judge Block stated that the problem
with the majority’s opinion was that there were clearly
material factual disputes and credibility determinations that
were for a jury – not judges – to resolve. Judge Block
dissented from those parts of the opinion granting summary
judgment for the police officers on plaintiff’s § 1983 false
arrest and due process claims, as well as on his ADA claim.
Judge Block concurred in those parts of the majority’s
opinion upholding the district court’s grant of summary
judgment on the excessive force and failure to train claims.
COUNSEL
Luke Busby, Reno, Nevada, for Plaintiff-Appellant.
Karl S. Hall, City Attorney; Mark W. Dunagan, Deputy City
Attorney; City Attorney’s Office, Reno, Nevada; for
Defendants-Appellees.
O’DOAN V. SANFORD 5
OPINION
BRESS, Circuit Judge:
James O’Doan was arrested for resisting a public officer
and indecent exposure after officers observed O’Doan
engage in conduct that violated Nevada law. O’Doan spent
one night in custody and was released on bail the next
morning. The charges against him were later dropped.
O’Doan then filed this lawsuit under 42 U.S.C. § 1983
against Reno police officers Joshua Sanford and Cade
Leavitt, alleging they used excessive force, lacked probable
cause to arrest him, and prepared deliberately fabricated
police reports. O’Doan also brought related claims against
the City of Reno under the Americans with Disabilities Act
(ADA). See 42 U.S.C. § 12101 et seq.
We hold that O’Doan’s § 1983 claims fail because the
police officers were entitled to qualified immunity. We also
hold that the district court properly granted summary
judgment to the City on O’Doan’s related ADA claims. We
therefore affirm the judgment of the district court.
I
In reviewing the grant of summary judgment to the
defendants, we recite the facts in the light most favorable to
O’Doan. Garcia v. County of Merced, 639 F.3d 1206, 1208
(9th Cir. 2011).
At 6:47 p.m. on the evening of July 15, 2016, O’Doan’s
girlfriend, April O’Fria, called 911 to report that O’Doan had
experienced an epileptic seizure in the shower, was trying to
break windows, and had fled their home naked. The 911
operator informed the emergency dispatcher that “[p]atient
is postictal and violent at this time,” to which the dispatcher
6 O’DOAN V. SANFORD
responded: “All right. I’ll let them know.” Meanwhile, on
another 911 call soon after, O’Fria told the operator that
O’Doan was having a “very bad epileptic seizure.” The
operator responded, “I will let them know.” O’Fria
frantically reported that O’Doan was “trying to break out the
window” and was “hurting himself very, very bad,” before
O’Fria was apparently disconnected from the call after
approximately two and a half minutes.
On another 911 call less than a minute later, O’Fria
further explained that O’Doan “is epileptic and he is having
a grand mal seizure” and that police officers had previously
“attacked him for not listening.” O’Fria asked the 911
operator to “[p]lease make sure they know he’s epileptic.”
The operator told O’Fria, “So I can’t guarantee that the
officers, the officers have to do whatever they have to do to
keep themselves and everybody else safe, okay? But I did
let them know that he’s having a grand mal seizure, okay?”
O’Fria then confirmed that “the police have him.” The
operator again stated that she will “let the officers know
everything.”
While these calls were taking place, firefighters had
arrived on the scene first and promptly initiated a “Code 3,”
which means “there’s something violent happening” and that
police were needed “immediately” for “an emergency
situation.” Firefighters had found O’Fria and O’Doan on a
busy Reno street “struggling” and “grappling with each
other.” O’Doan ran down the street and past the emergency
personnel. O’Doan looked at the firefighters when they tried
to talk to him but ignored their requests for him to stop.
O’Fria, who had been chasing after O’Doan, told one of the
firefighters she believed O’Doan had a seizure and that it had
happened before.
O’DOAN V. SANFORD 7
In the meantime, police dispatch notified Reno Police
Officers Sanford and Leavitt of the Code 3 request. There is
no suggestion that the police officers were on O’Fria’s 911
calls or the communications between the 911 operator and
emergency dispatch, a portion of which took place after
police were already engaged. En route to the scene, Officer
Sanford saw an EMS advisory on the computer in the police
car showing that the 911 caller had reported “that the
subj[ect] is in a grand mal seizure [and] last time [officers]
attacked him due to him being in a seizure.” While Sanford
knew what a seizure was, he did not know the meaning of
“grand mal seizure.” For his part, Officer Leavitt (who was
still a police trainee at the time) testified he did not remember
reading the EMS advisory on the car computer and was not
aware, upon arriving at the scene, that O’Doan had allegedly
suffered a seizure.
Sanford and Leavitt pulled up to find that firefighters had
“staged” their vehicle away from O’Doan and O’Fria, which
is done when there is a law enforcement issue that first
requires police intervention. At this point, O’Doan had
passed the staged firefighters and was moving quickly down
the sidewalk naked.
The officers tried to catch up with O’Doan while
identifying themselves as police and instructing O’Doan to
stop. O’Doan did not comply. According to Sanford, in
response to the officers’ commands to stop, O’Doan turned,
faced the officers, and “ball[ed] up both of his fists and kind
of br[ought] his arms, his forearms, up, not at a full 90-
degree angle, but he br[ought] them up slightly.” Officer
Leavitt similarly described how O’Doan “stopped and
turn[ed] towards me with his fist clenched and presenting
body language as if he was going to attack myself and
Officer Sanford.” As Leavitt later testified, O’Doan
8 O’DOAN V. SANFORD
“presented towards me like he would have come towards me
right there.”
Leavitt tried to deploy his taser on O’Doan but the taser
malfunctioned. O’Doan then turned away and moved off
quickly. At that point, Sanford approached O’Doan and
used a “reverse reap throw” to bring him to the ground. This
maneuver essentially involves tripping the subject from
behind to throw him off balance and then “guiding” him to
the ground with both hands.
After Sanford brought O’Doan down, officers engaged
in a “major struggle” with O’Doan, who was “combative.”
O’Doan thrashed around, “scuffl[ing]” with the officers,
“kicking and attempting to get up off the ground” and
continuing to resist attempts to restrain him. The officers
repeatedly told O’Doan to stop resisting, but O’Doan did not
obey. Firefighters and a third officer who had since arrived
on the scene had to help Sanford and Leavitt restrain
O’Doan. After his arms were handcuffed behind his back,
O’Doan continued to try to kick people, so officers put leg
restraints on him. O’Doan received some abrasions and
lacerations to various parts of his body during the episode.
Once he was restrained, EMS administered a sedative to
O’Doan, who began to relax. O’Doan was then loaded onto
a gurney and into the ambulance. Firefighter David
Blondfield informed EMS that O’Fria had told him on the
scene that O’Doan had a history of seizures, but Blondfield
did not recall EMS’s response. Blondfield did not recall
passing on this information to the police officers. Sanford
testified that while still on the scene he spoke with his
supervisor, Sergeant Browitt, which is required under
department policy when a use of force causes claimed or
visible injuries. Sanford “informed [Browitt] that they’re
claiming that [O’Doan] was suffering from a seizure.”
O’DOAN V. SANFORD 9
The emergency personnel at the scene, who had training
in responding to persons having seizures, did not believe
O’Doan had suffered a seizure or that he was in a “post-ictal”
(post-seizure) state. Blondfield testified that, based on what
he observed, “a seizure patient was not what came to mind.”
“[M]y first thought was not this is a seizure. My first thought
was there’s something else.” Instead, O’Doan “reminded me
of somebody high on meth or something like that.”
Firefighter Trevor Alt similarly testified that emergency
personnel “believed [O’Doan] was on drugs.” O’Doan’s
behavior “was consistent with someone that’s on a drug
binge,” “more consistent with methamphetamine, maybe
ecstasy, hallucinogens.” Blondfield and Alt testified that
someone who emerges from a seizure is “lethargic,” which
is not how O’Doan presented. As Alt testified, “[y]ou can’t
walk that way in a postictal state.”
O’Doan was transported to the hospital to treat his
lacerations, and, as Leavitt wrote in his police report, any
“other possible health issues.” Leavitt testified that because
it was “uncommon to have an individual naked running
down the street,” officers in that type of situation want to
ensure persons like O’Doan are “not on any foreign
substances to make them mentally not sound there, to make
them act in this behavior that isn’t common.”
Sanford and Leavitt followed O’Doan to the hospital.
O’Doan was admitted to the emergency room at 7:40 p.m.
that evening. O’Doan has no memory of these events but
acknowledged that if he had been left to wander the streets,
he could have posed a danger to himself or others.
Once at the emergency room, Dr. Daryl Di Rocco treated
O’Doan. Di Rocco’s deposition testimony was based
entirely on medical records because he did not have any
10 O’DOAN V. SANFORD
independent recollection of O’Doan’s time at the hospital.
The records indicated that O’Doan came in with a “seizure
or a possible seizure,” and reference O’Doan’s “history of
seizures,” while noting that “[t]he story is not clear.”
Di Rocco diagnosed O’Doan as having suffered from a
seizure, abrasions, and tobacco use, and Di Rocco believed
the diagnosis in the records was accurate.
But Dr. Di Rocco confirmed that it was not “clear to
[him] from [his] records that [O’Doan] had a seizure on the
night in question.” Because Di Rocco “didn’t see him
actually have a seizure,” Di Rocco “can’t say for sure that’s
what happened.” As Dr. Di Rocco testified, “[p]eople come
in with chest pain and I can’t feel their chest pain, but I still
diagnose them with chest pain if that’s what they say they
had.” While Di Rocco “assume[d]” O’Doan had an epileptic
seizure based on his reported medical history, Di Rocco
“would not be able to confirm that he had a seizure or that
he was in a postictal state. There would be no way for me to
know that.” Di Rocco thus “couldn’t tell you” whether
O’Doan was in a post-ictal state during the time he was in
contact with the police. Di Rocco also agreed he “did not
rule out the fact that Mr. O’Doan may have taken illicit drugs
prior to his coming to be treated.” Medical records indicate
that the next day, during another evaluation, O’Doan tested
positive for marijuana.
Officer Leavitt interviewed O’Doan in the hospital.
O’Doan informed Leavitt that he believed he had suffered a
seizure, but he remembered nothing. Leavitt stated that at
the hospital, O’Doan appeared to be in a normal frame of
mind, “180 degrees different” from his disposition in the
street, and that O’Doan was respectful in their conversation.
Leavitt then had a “short conversation” with a doctor at the
emergency room “[a]s to does this make sense as to what
O’DOAN V. SANFORD 11
Mr. O’Doan is telling me,” because Leavitt found O’Doan’s
behavior “unusual for me, from what I understand a seizure
to be.” Leavitt’s impression of this conversation with the
doctor was that “it was – it was no, like this does not match
up to what Mr. O’Doan is saying.” For his part,
Dr. Di Rocco does not remember speaking with the police
officers but testified that he would speak with law
enforcement “[a]s a matter of routine practice” if officers
had questions.
Officer Sanford did not speak with O’Doan at the
hospital, but he did receive and sign O’Doan’s medical
discharge papers, a requirement when a patient is discharged
into police custody. These papers note the seizure diagnosis
that Dr. Di Rocco had written in the medical records, as
described above, but do not specify the cause of the seizure
or attribute it to epilepsy.
The discharge papers also contain stock descriptions and
treatment recommendations for O’Doan’s various
diagnoses. For example, an abrasion is described as “a cut
or scrape of the skin.” For seizures (listed after abrasions
and contusions), the stock description states that “[e]pilepsy
is a brain disorder in which a patient has repeated seizures
over time,” but goes on to explain that “[t]here are many
different problems that can cause seizures,” including bodily
disorders, “[i]mbalance of chemicals in the blood,” and
“[d]rug abuse.” “In some cases,” the stock language of the
description goes on, “no cause is found.” The general
information about seizures in the discharge papers further
includes the statement that “[a]fter a seizure, you may feel
confused and sleepy.”
Sanford and Leavitt agreed in the emergency room to
arrest O’Doan for resisting a public officer, Nev. Rev. Stat.
§ 199.280.3, and indecent exposure, id. § 201.220.1.
12 O’DOAN V. SANFORD
O’Doan was released into police custody around 9:40 p.m.,
charged with both offenses, and booked into the county jail
overnight, where he had his own cell. The next morning,
O’Doan was released on bail. There is no mention in the
arrest report, which Leavitt authored, or in the police report
narratives that both officers prepared, of any alleged seizure.
The declaration supplement to the arrest report does,
however, note that O’Doan was brought to the hospital to be
“evaluated for his injuries and other possible health issues.”
The district attorney brought charges against O’Doan, but
nearly five months later dismissed the charges without
prejudice.
O’Doan later filed this suit against Sanford, Leavitt, and
the City of Reno. He alleged that both officers had
wrongfully arrested him and violated due process in filing
deliberately fabricated police reports, and further alleged
that Sanford used excessive force when executing the
reverse reap throw. O’Doan also brought related ADA
claims against the City. The district court granted summary
judgment to the defendants on all claims.
O’Doan timely appeals. We review the grant of
summary judgment de novo. Garcia, 639 F.3d at 1208.
Under Federal Rule of Civil Procedure 56(a), “[t]he court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” In this posture,
we view the facts and draw reasonable inferences in favor of
the nonmoving party. District of Columbia v. Wesby, 138 S.
Ct. 577, 584 n.1 (2018); Scott v. Harris, 550 U.S. 372, 378–
379 (2007). “In the absence of material factual disputes, the
objective reasonableness of a police officer’s conduct is ‘a
pure question of law.’” Lowry v. City of San Diego, 858 F.3d
O’DOAN V. SANFORD 13
1248, 1254 (9th Cir. 2017) (en banc) (quoting Scott,
550 U.S. at 381 n.8).
II
Officers sued under 42 U.S.C. § 1983 may be immune
from civil liability under the doctrine of qualified immunity.
Qualified immunity “balances two important interests—the
need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform
their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,
231 (2009).
To determine whether the officers are entitled to
qualified immunity, “we consider (1) whether there has been
a violation of a constitutional right; and (2) whether that right
was clearly established at the time of the officer’s alleged
misconduct.” Jessop v. City of Fresno, 936 F.3d 937, 940
(9th Cir. 2019) (quotations omitted). The Supreme Court
has repeatedly emphasized the importance of faithfully
applying these standards consistent with the purposes of
qualified immunity.
“To be clearly established, a right must be sufficiently
clear that every reasonable official would [have understood]
that what he is doing violates that right. In other words,
existing precedent must have placed the statutory or
constitutional question beyond debate.” Reichle v.
Howards, 566 U.S. 658, 664 (2012) (alteration in original;
quotations omitted). “This demanding standard,” the
Supreme Court has instructed us, “protects ‘all but the
plainly incompetent or those who knowingly violate the
law.’” Wesby, 138 S. Ct. at 589 (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)).
14 O’DOAN V. SANFORD
Although qualified immunity involves a two-step
analysis, we may exercise our discretion to resolve a case
only on the second ground when no clearly established law
shows that the officers’ conduct was unconstitutional.
Pearson, 555 U.S. at 236–39, 242; Orn v. City of Tacoma,
949 F.3d 1167, 1174 (9th Cir. 2020); see also Wesby, 138 S.
Ct. at 589 n.7 (“We continue to stress that lower courts
‘should think hard, and then think hard again,’ before
addressing both qualified immunity and the merits of an
underlying constitutional claim.” (quoting Camreta v.
Greene, 563 U.S. 692, 707 (2011))).
In the exercise of our discretion, and with the Supreme
Court’s admonitions in mind, we resolve this case only on
the “clearly established law” prong of the qualified
immunity framework. With the benefit of a 360-degree view
of the facts and the luxury of reviewing the officers’ actions
from an armchair rather than a chaotic Reno street or an
emergency room, there are some aspects of the officers’
actions we can find commendable. In other instances,
greater care may have been warranted. Our task, however,
is not to serve as a police oversight board or to second-guess
officers’ real-time decisions from the standpoint of perfect
hindsight, but to ask whether the officers violated clearly
established law. Under the qualified immunity framework
the Supreme Court has forcefully articulated and reaffirmed,
the answer is clearly no.
A
We begin with O’Doan’s claim that Officer Sanford’s
use of a “reverse reap throw” amounted to excessive force,
in violation of the Fourth Amendment’s proscription against
unreasonable seizures. See Graham v. Connor, 490 U.S.
386, 395–97 (1989). In evaluating qualified immunity in
this context, the Supreme Court has reminded lower courts
O’DOAN V. SANFORD 15
that “[u]se of excessive force is an area of the law ‘in which
the result depends very much on the facts of each case,’ and
thus 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) (per
curiam) (quoting Mullenix v. Luna, 577 U.S. 7, 13 (2015)
(per curiam)). The question, then, is whether “clearly
established law prohibited” Sanford from using the degree
of force that he did in the specific circumstances that the
officers confronted. See City of Escondido v. Emmons,
139 S. Ct. 500, 503 (2019) (per curiam); see also White v.
Pauly, 137 S. Ct. 548, 552 (2017) (per curiam).
To evaluate the reasonableness of the force used, “we
balance the ‘the nature and quality of the intrusion on the
individual’s Fourth Amendment interests’ against ‘the
countervailing government interests at stake.’” Miller v.
Clark County, 340 F.3d 959, 964 (9th Cir. 2003) (quoting
Graham, 490 U.S. at 396). We consider “the type and
amount of force inflicted” as well as “(1) the severity of the
crime at issue, (2) whether the suspect posed an immediate
threat to the safety of the officers or others, and (3) whether
the suspect was actively resisting arrest or attempting to
evade arrest by flight.” Id. In the course of our review,
“[t]he calculus of reasonableness must embody allowance
for the fact that police officers are often forced to make split-
second judgments—in circumstances that are tense,
uncertain, and rapidly resolving—about the amount of force
that is necessary in a particular situation.” Graham, 490 U.S.
at 396–97.
Evaluating the facts of this case against the applicable
body of Fourth Amendment law, we have little difficulty
concluding that, at the very least, Officer Sanford did not
violate clearly established law when he executed a reverse
16 O’DOAN V. SANFORD
reap throw on O’Doan. Officers were called in to a “Code
3” situation, a request for immediate police assistance for a
“violent” individual. They arrived to find O’Doan naked and
moving quickly on a busy street. O’Doan repeatedly resisted
officers’ commands to stop and then turned to the officers in
a threatening manner, with his fists clenched.
O’Doan’s failure to follow “lawful commands, and [his]
actions” in making threatening gestures “risked severe
consequences.” See Ames v. King County, 846 F.3d 340, 349
(9th Cir. 2017). The officers therefore acted reasonably in
deciding to bring O’Doan under control. Indeed, their
efforts to do so may well have prevented O’Doan from
harming himself or those around him.
The reverse reap throw maneuver that Officer Sanford
used—a tripping technique that knocked O’Doan off balance
and allowed Sanford to bring O’Doan to the ground—also
involved a modest deployment of force. It is not clear “less
intrusive alternatives” would have sufficed to bring O’Doan
under control, especially when O’Doan had refused to heed
several warnings to stop. See Isayeva v. Sacramento
Sheriff’s Dep’t, 872 F.3d 938, 947 (9th Cir. 2017). While
O’Doan suffered some abrasions during this episode, his
injuries were minor. It is also not apparent these injuries
resulted from the reverse reap throw per se, rather than
O’Doan’s combativeness once taken to the ground and the
fact that O’Doan was naked.
O’Doan identifies no precedent that would suggest the
force used here was excessive, much less that excessiveness
was clearly established on these facts. Indeed, we have held
that officers were entitled to qualified immunity in cases
involving much more significant uses of force in less
challenging situations. See, e.g., Shafer v. County of Santa
Barbara, 868 F.3d 1110, 1113, 1117–18 (9th Cir. 2017)
O’DOAN V. SANFORD 17
(officer did not violate clearly established law when college
student “refuse[d] to comply with the officer’s orders” to
drop water balloons and the officer “progressively
increase[d] his use of force from verbal commands, to an
arm grab, and then a leg sweep maneuver,” sending student
“face first onto the pavement”); Ames, 846 F.3d at 344–45
(use of force not excessive when officer, responding to
mother’s call about her son’s suicide attempt, “employed a
hair hold to distract” the mother and then “slammed [her]
head into the ground three times”); see also, e.g., Felarca v.
Birgeneau, 891 F.3d 809, 816 (9th Cir. 2018).
O’Doan claims the Supreme Court’s decision in Graham
v. Connor, 490 U.S. 386 (1989), clearly establishes that
Officer Sanford’s reverse reap throw was constitutionally
excessive. But Graham merely set forth the overarching
standards that courts must apply in evaluating claims for
excessive force. Id. at 396. Those standards are articulated
at too high a level of generality to “squarely govern[]” this
case. See Mullenix, 577 U.S. at 15; see also White, 137 S.
Ct. at 552 (explaining that “we have held that . . . Graham”
does not by itself “create clearly established law outside ‘an
obvious case,’” and that “[t]his is not a case where it is
obvious that there was a violation of clearly established law
under . . . Graham” (quoting Brosseau v. Haugen, 543 U.S.
194, 199 (2004) (per curiam)). Graham also involved very
different facts. Among other things, Graham did not involve
a person who acted in a threatening manner toward police or
who presented a risk of harm to others. The amount of force
used in Graham was also much more significant than here.
See 490 U.S. at 389–90.
18 O’DOAN V. SANFORD
For all these reasons, the district court correctly
concluded that Officer Sanford was entitled to qualified
immunity on O’Doan’s § 1983 excessive force claim. 1
B
We turn next to O’Doan’s claim that the officers lacked
probable cause to arrest him. O’Doan does not dispute that
he engaged in conduct that violated Nevada law. See Nev.
Rev. Stat. §§ 199.280.3, 201.220.1. He instead contends that
the officers lacked probable cause to arrest him because they
should have known he lacked the mens rea to complete the
offenses. In O’Doan’s view, the officers knew or should
have known that O’Doan was “innocent” of his facially
unlawful conduct because O’Doan was in a post-ictal state
when he committed the offenses.
In considering whether the officers are entitled to
qualified immunity on this claim, we apply the same
principles set forth above. But we do so with the benefit of
additional guidance from the Supreme Court, both in terms
of the standards that govern the probable cause inquiry and
1
O’Doan also argues that the City violated the ADA because
officers failed to make a reasonable accommodation when detaining him,
i.e., that they should have done so in a less forceful manner that was more
appreciative of O’Doan’s epilepsy. See Sheehan v. City & County of San
Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014), rev’d in part on other
grounds, City & County of San Francisco v. Sheehan, 575 U.S. 600
(2015). The district court correctly granted summary judgment on this
claim. Under the ADA, “the plaintiff bears the initial burden of
producing evidence of the existence of a reasonable accommodation.”
Id. at 1233. O’Doan has not shown that a lesser amount of force would
have been reasonable under the circumstances. For the same reasons,
O’Doan’s ADA failure to train claim likewise fails. O’Doan has not
shown how personnel with different training would have acted
differently given the exigencies of the situation.
O’DOAN V. SANFORD 19
how those standards should be applied in evaluating a related
request for qualified immunity.
“To determine whether an officer had probable cause for
an arrest, ‘we examine the events leading up to the arrest,
and then decide “whether these historical facts, viewed from
the standpoint of an objectively reasonable police officer,
amount to” probable cause.’” Wesby, 138 S. Ct. at 586
(quoting Maryland v. Pringle, 540 U.S. 366, 371 (2003)).
Probable cause is “a fluid concept” that “deals with
probabilities and depends on the totality of the
circumstances,” which cannot “readily, or even usefully,
[be] reduced to a neat set of legal rules.” Id. (quotations
omitted). It “requires only a probability or substantial
chance of criminal activity, not an actual showing of such
activity.” Id. (quoting Illinois v. Gates, 462 U.S. 213, 243–
44 n.13 (1983)). This “is not a high bar.” Id. (quoting Kaley
v. United States, 571 U.S. 320, 338 (2014)).
The Supreme Court’s decision in Wesby instructs at
length and with notable emphasis how courts should
evaluate claims for wrongful arrest under qualified
immunity’s “clearly established law” requirement. In this
context, “[t]he clearly established’ standard . . . requires that
the legal principle clearly prohibit the officer’s conduct in
the particular circumstances before him.” Id. at 590. The
“rule’s contours must be so well defined that it is clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted,” which “requires a high degree of
specificity.” Id. (quotations omitted).
Wesby “stressed that the ‘specificity’ of the rule is
especially important in the Fourth Amendment context.” Id.
(quotations omitted). Because of the “imprecise nature” of
the probable cause standard, “officers will often find it
difficult to know how the general standard of probable cause
20 O’DOAN V. SANFORD
applies in the precise situation encountered.” Id. (quotations
omitted). Thus, “[w]hile there does not have to be a case
directly on point” to deny qualified immunity, “existing
precedent must place the lawfulness of the particular arrest
beyond debate.” Id. (quotations omitted). “[A] body of
relevant case law is usually necessary to clearly establish the
answer with respect to probable cause.” Id. (quotations
omitted).
1
Evaluated under these stringent standards, Sanford and
Leavitt are clearly entitled to qualified immunity. While we
are sympathetic to O’Doan and acknowledge his disability,
we cannot say that the officers here violated clearly
established law in determining they had probable cause to
arrest O’Doan after witnessing him engage in conduct that
indisputably violated Nevada law. Simply stated, and as in
Wesby, O’Doan has not “identified a single precedent—
much less a controlling case or robust consensus of cases—
finding a Fourth Amendment violation ‘under similar
circumstances.’” 138 S. Ct. at 591 (quoting White, 137 S.
Ct. at 552). In fact, the only analogous case of which we are
aware granted qualified immunity to the arresting officer.
In Everson v. Leis, 556 F.3d 484 (6th Cir. 2009),
Everson, an epileptic, had a seizure at a mall. Id. at 489.
When police and emergency personnel arrived on the scene,
Everson was violent and combative. Id. at 489–90. The
police then “hogtied” Everson and arrested him. Id. at 489.
Everson told officers “that he was an epileptic and that their
conduct was likely to cause him to suffer another seizure.”
Id. Nevertheless, Everson was taken to a detention center,
where he again informed officials that he had epilepsy. Id.
Everson was charged with assault and disorderly conduct
O’DOAN V. SANFORD 21
and spent two days in jail. Id. The charges were later
dropped. Id.
Like O’Doan, Everson alleged that police did not have
probable cause to arrest him because the officer ignored
“exculpatory evidence of lack of mens rea.” Id. at 500. The
Sixth Circuit disagreed, holding that the arresting officer was
entitled to qualified immunity on Everson’s § 1983 wrongful
arrest claim. Id. at 498–500. The Sixth Circuit
acknowledged that “[v]iewed in the light best to Everson, he
had recovered from his seizure when he arrived at the squad
car.” Id. at 499. In addition, the arresting officer “knew that
Everson had suffered an epileptic seizure,” and “[i]t is a fair
inference” that “the deputy should have known that
Everson’s actions were made with, at best, a semi-conscious
frame of mind.” Id. Still, the Sixth Circuit held, any right to
be free of arrest in these circumstances was not clearly
established. Id. at 500.
The Sixth Circuit explained that “law enforcement
officials are not necessarily precluded under federal law
from arresting someone who displays symptoms of a known
medical condition.” Id. at 499. Everson “ha[d] committed
an act that would clearly be a criminal act if committed by a
non-disabled person.” Id. at 500. While his alleged lack of
mens rea by reason of his seizure could be a defense to
criminal liability, “[i]t is not the rule that police must
investigate a defendant’s legal defenses prior to making an
arrest.” Id. (quotations and alterations omitted). Indeed, the
officer had not violated clearly established law even though,
unlike here, an Ohio statute required officers to “make a
diligent effort to determine whether any disabled person he
finds is an epileptic,” and, “[w]henever feasible,” to make
this determination “before the person is charged with a crime
22 O’DOAN V. SANFORD
or taken to a place of detention.” Id. at 499–500 (quoting
Ohio Rev. Code § 2305.43(A)). 2
Particularly given Everson, it cannot be said that Sanford
and Leavitt violated clearly established law in concluding
they had probable cause to arrest O’Doan. Law enforcement
officers every day confront persons engaged in illegal
conduct who may appear to lack some degree of control over
their own actions. These situations can present difficult
judgment calls for police officers, who face competing
duties to ensure public safety and compliance with the law,
while acting compassionately toward persons in need of
help.
We are unaware of any case law—and neither O’Doan
nor the dissent cite any—that should have made clear to
Sanford and Leavitt that they lacked probable cause to make
an arrest. See Wesby, 138 S. Ct. at 586. Whether a defendant
had the mens rea to commit an offense can sometimes be the
focus of substantial investigation, if not an entire criminal
trial. O’Doan identifies no precedent that required the
officers in the specific circumstances they encountered to
2
In a subsequent decision, the Sixth Circuit affirmed the grant of
summary judgment for the defendants on Everson’s related ADA claims.
Everson v. Leis, 412 F. App’x 771 (6th Cir. 2011). The court held that
there was no intentional discrimination under the ADA because while
the officer knew Everson recently had a seizure, Everson “allege[d] no
facts that could support his bare conclusion that [the officer] knew that
Everson’s seizure was ongoing during the relevant time period.” Id.
at 778. The dissent speculates that “the result in Everson was materially
affected by the failures of Everson’s counsel.” But the Sixth Circuit
issued two substantial decisions in Everson that focused intently on the
principles that must be applied to a case involving similar facts as this
one. It is the Sixth Circuit’s analysis that is relevant here, which at the
very least confirms the absence of clearly established law establishing
that the officers’ actions here were unconstitutional.
O’DOAN V. SANFORD 23
pretermit those processes entirely and decide on their own—
on a busy street or in an emergency room—that O’Doan’s
facially unlawful conduct should be excused. If arresting
officers had to accept at face value claims of potential lack
of mens rea, as here, many arrests for unlawful conduct
would likely be called into question, with significant public
safety consequences. The most relevant decision (Everson)
affirmatively supported the officers’ arrest of O’Doan. But
at the very least, there was no decision—or indeed, any
relevant body of law or precedent—that “clearly
prohibit[ed]” O’Doan’s arrest in the “particular
circumstances” that the officers confronted. Wesby, 138 S.
Ct. at 590.
The specific facts of this case underscore this. Once on
the scene of a “Code 3” emergency, the officers encountered
a mobile individual who appeared to recognize verbal
commands and turned to flee at a quicker pace. Officers
could conclude that O’Doan was not in the midst of a seizure
at this time (and there is no suggestion he was). Instead,
officers witnessed O’Doan engage in unlawful conduct that
included O’Doan refusing to comply with officers’ orders,
raising his fists toward them in a threatening manner, and
combatively engaging them in a “major struggle.”
The officers could reasonably infer they had probable
cause to arrest O’Doan based on their observations of his
conduct. Wesby, 138 S. Ct. at 592 (referencing case law
“emphasiz[ing] that officers can rely on the ordinary and
reasonable inference that people know what they are doing
when they act” (quotations omitted)); id. at 593 (explaining
that “[t]here was no controlling case holding . . . that officers
cannot infer a suspect’s guilty state of mind based on his
conduct alone”).
24 O’DOAN V. SANFORD
2
Nor did any “clearly established law” require the officers
to conclude that probable cause had dissipated once O’Doan
was discharged from the hospital. Our fine colleague in
dissent concludes otherwise by relying on the general
principle that a “person may not be arrested, or must be
released from arrest, if previously established probable cause
has dissipated.” United States v. Ortiz-Hernandez, 427 F.3d
567, 574 (9th Cir. 2005) (per curiam). While we have no
quarrel with that high-level principle, the dissent’s reliance
on it in this context is improper.
The Supreme Court “ha[s] repeatedly stressed that courts
must not define clearly established law at a high level of
generality, since doing so avoids the crucial question
whether the official acted reasonably in the particular
circumstances that he or she faced.” Wesby, 138 S. Ct. at
590 (quotations omitted). In the qualified immunity context,
“[a] rule is too general if the unlawfulness of the officer’s
conduct does not follow immediately from the conclusion
that the rule was firmly established.” Id. (quotations and
alterations omitted). That is the case here.
The authorities the dissent cites applying the
“dissipation” principle involved vastly different
circumstances. In those cases, officers had arrested a person
and then became aware that there was no basis to conclude
the person had engaged in any criminal conduct at all. See,
e.g., Nicholson v. City of Los Angeles, 935 F.3d 685, 691
(9th Cir. 2019) (no probable cause because “it was soon
apparent to the officers that the teenagers were unarmed,
posed no threat to anyone, and were not engaged in any
criminal activity”); Ortiz-Hernandez, 427 F.3d at 574–75
(probable cause dissipated after strip search of suspected
drug dealer revealed “no drugs, no drug paraphernalia, . . .
O’DOAN V. SANFORD 25
no other evidence of drug sales,” and no other incriminating
evidence).
In this case, in sharp contrast, nothing that happened in
the emergency room could or did change the fact that
O’Doan had, without doubt, engaged in illegal conduct—
which the officers had personally observed and experienced
firsthand. The authorities the dissent cites could have
provided no guidance to the officers on the relevant question
here, which is whether law enforcement was compelled to
conclude that a hospital report was dispositive of probable
cause, even though the arrestee had engaged in illegal
conduct.
The nuanced situation in the emergency room only
further bears out our conclusion that officers were entitled to
qualified immunity. O’Doan did tell Leavitt he believed he
had a seizure. But in light of Leavitt’s observations of
O’Doan earlier, Leavitt was not required to credit O’Doan’s
explanation. Wesby, 138 S. Ct. at 588. Leavitt also gave
uncontradicted testimony that, after speaking with a doctor
at the hospital, “it was no, like this does not match up to what
Mr. O’Doan is saying,” and Leavitt found O’Doan’s
behavior “unusual for me, from what I understand a seizure
to be.” Leavitt’s assessment may have been incorrect, but
O’Doan cannot show it was objectively unreasonable. See,
e.g., Wesby, 138 S. Ct. at 591 (“Even assuming the officers
lacked probable cause to arrest the [plaintiffs], the officers
are entitled to qualified immunity because they reasonably
but mistakenly concluded that probable cause was present.”
(quotations and alterations omitted)).
The medical discharge papers that Sanford signed at the
hospital confirm that qualified immunity is warranted.
There is no indication that the discharge papers Sanford
26 O’DOAN V. SANFORD
signed diagnosed O’Doan with epilepsy. And while they did
list O’Doan’s diagnosis as “seizure,” Dr. Di Rocco explained
that this diagnosis was based on O’Doan’s self-reporting.
Nothing in the discharge papers confirmed that O’Doan had,
in fact, suffered a seizure (which not even Dr. Di Ricco could
conclude), much less that O’Doan’s wrongful conduct at the
time of the offenses was the product of a post-ictal state. Nor
did the discharge papers confirm the cause of any seizure.
Instead, the discharge papers contained stock language
about seizures, including that “[t]here are many different
problems that can cause seizures,” and that sometimes what
prompts a seizure cannot be determined. Police officers are
not medical doctors. And the Constitution does not require
that officers consult with expert witnesses before making an
arrest. No clearly established law required the officers here
to treat an emergency room diagnosis as conclusive of a lack
of criminality, especially when the suspect had engaged in
facially unlawful conduct. See Wesby, 138 S. Ct. at 588 (in
probable cause analysis, facts cannot be viewed “in
isolation” (quotations omitted)); Kaley, 571 U.S. at 338
(probable cause “is not a high bar”). Certainly, no clearly
established law required that conclusion in the face of the
limited and largely boilerplate information in the medical
discharge papers here.
The dissent is thus incorrect that the officers are
unentitled to qualified immunity because there is a supposed
factual dispute whether they learned that O’Doan had a
seizure or had epilepsy. There is evidence, as we have
discussed, that Sanford and Leavitt were aware of reports,
ultimately sourced to O’Fria and later O’Doan, that O’Doan
had had a seizure at some point prior. We have more
difficulty with the suggestion that the officers knew that
O’Doan was reported to have epilepsy, as the sources for that
O’DOAN V. SANFORD 27
suggestion are 911 calls the officers did not hear and medical
files they did not receive. But we will assume for purposes
of this appeal that the officers did receive reports,
attributable either to O’Fria or O’Doan, that O’Doan was
epileptic. The dissent is thus incorrect in claiming that we
are “crediting” the officers’ testimony. We are instead
construing disputed facts in favor of O’Doan and explaining
why qualified immunity is nonetheless required.
The officers’ awareness that O’Fria or O’Doan had
reported O’Doan having a seizure or epilepsy do not change
the equation. Supreme Court precedent is clear that
“probable cause does not require officers to rule out a
suspect’s innocent explanation for suspicious facts.” Wesby,
138 S. Ct. at 588. Here, the facts were not merely suspicious
of potential criminal wrongdoing but reflected conduct that
on its face violated Nevada law. The Supreme Court has
acknowledged case law recognizing that “it would be an
unusual case where the circumstances, while undoubtedly
proving an unlawful act, nonetheless demonstrated so clearly
that the suspect lacked the required intent that the police
would not even have probable cause for an arrest.” Id. at 592
(quotations omitted). Nothing in clearly established law
would have indicated to Sanford and Leavitt that this was
such an “unusual” case.
What this means is that no clearly established law
required the officers to credit O’Fria and O’Doan’s
explanation and deem true a possible defense, namely, that
O’Doan lacked the wherewithal to be responsible for
unlawful conduct. See Everson, 556 F.3d at 500.
“[I]nnocent explanations—even uncontradicted ones—do
not have any automatic, probable-cause-vitiating effect.”
Wesby, 138 S. Ct. at 592. And even if Sanford and Leavitt
had credited O’Fria and O’Doan’s explanations as a general
28 O’DOAN V. SANFORD
matter, nothing required the officers to reach the further
conclusion that O’Doan was in a post-ictal state when he
engaged in the wrongful acts. Dr. Di Rocco himself could
not make that assessment. If qualified immunity means
anything, it is that clearly established law did not require
officers to make a medical judgment that not even O’Doan’s
treating physician was willing to hazard.
The dissent thus errs in concluding that a report from
O’Doan’s expert, Dr. Gary Greenberg, creates a dispute of
material fact. Dr. Greenberg opined that O’Doan had an
epileptic seizure before the officers arrived on the scene and
“was in a post-ictal state when [EMS] and Reno police
arrived.” But Dr. Greenberg does not claim the officers
diagnosed, or should have been able to diagnose, O’Doan’s
post-ictal state. Nor could he offer such an opinion.
Dr. Greenberg’s report in fact states that “[c]ertainly, I am
not knowledgeable about proper police procedure in the
apprehension” of persons like O’Doan. Moreover,
Dr. Greenberg described how “in a post-ictal phase a patient
may appear outwardly appropriate but still [be] undergoing
seizure activity,” which makes the officers’ decisions here
that much more understandable.
In all events, the dissent’s focus on Dr. Greenberg
incorrectly frames the inquiry. Probable cause and qualified
immunity are assessed from “the standpoint of an objectively
reasonable police officer,” Wesby, 138 S. Ct. at 586
(quotations omitted), not the after-the-fact perspective of a
medical expert. We can assume the truth of Dr. Greenberg’s
expert report and still conclude that, under the legal
standards that govern, the officers did not violate clearly
established law in arresting O’Doan.
The dissent’s repeated contention that we have not
abided by the summary judgment standards is therefore
O’DOAN V. SANFORD 29
simply wrong. We have faithfully applied those standards
and have not “ignore[d]” O’Doan’s evidence, as the dissent
mistakenly claims. It is the dissent that reflects an
unwillingness to apply the standards that govern the
qualified immunity analysis—standards the Supreme Court
has repeatedly emphasized in reversing lower courts for
failing to follow them.
3
Finally, we must reject O’Doan’s (and the dissent’s)
contention that O’Doan’s arrest was unconstitutional
because this is “an ‘obvious case’ where ‘a body of relevant
case law is not needed.” Wesby, 138 S. Ct. at 591 (quoting
Brosseau, 543 U.S. at 199). The situations where a
constitutional violation is “obvious,” in the absence of any
relevant case law, are “rare.” Id. at 590. That teaching
resonates even more powerfully in the Fourth Amendment
context. As we have explained, the “obviousness principle,
an exception to the specific-case requirement, is especially
problematic in the Fourth-Amendment context.” Sharp v.
City of Orange, 871 F.3d 901, 912 (9th Cir. 2017). “[T]o
say that it is almost always wrong for an officer in those
circumstances to act as he did” is a “categorical statement”
that is “particularly hard to make when officers encounter
suspects every day in never-before-seen ways.” Id.; see also
West v. City of Caldwell, 931 F.3d 978, 987 (9th Cir. 2019).
The obviousness principle thus has “real limits when it
comes to the Fourth Amendment,” Sharp, 871 F.3d at 912,
and we decline to transgress those limits here. Construing
the facts in the light most favorable to O’Doan, officers were
placed in an emergency situation involving a person acting
dangerously and unlawfully. While it was unclear what
prompted O’Doan’s wrongful behavior, nothing made it
obvious that officers had to accept O’Fria and O’Doan’s
30 O’DOAN V. SANFORD
explanations and conclude on the spot that O’Doan was not
responsible for his actions.
Other aspects of the record only confirm that the
situation here was not “obvious,” but at best ambiguous.
Emergency personnel at the scene, who had nearly fifty
years of EMT experience combined, were emphatic that
O’Doan’s conduct was inconsistent with a post-ictal state
and more consistent with drug usage. Leavitt had the same
concern. We assume that they were mistaken, as we must
on summary judgment. We simply note their testimony to
show that the situation was not an “obvious” one—even to
those with medical training who observed it.
Materials from the Epilepsy Foundation on which
O’Doan relies only reaffirm that the obviousness principle is
inapplicable here. Those materials make clear that “not
every episode of confusion or illegal activity is seizure-
related,” that seizures have many causes, and that
“[d]istinguishing epileptic seizures from episodes resulting
in seizures is beyond reasonable expectations of law
enforcement.” These materials bely any suggestion that the
questions confronting the officers here had any obvious
answer.
O’Doan’s reliance on the Supreme Court’s recent
decision in Taylor v. Riojas, 141 S. Ct. 52 (2020), is
unavailing. There, the Supreme Court held it was obvious
that keeping an inmate in a cell “teeming with human waste”
for six days, and forcing him to sleep naked in raw sewage,
violated the Eighth Amendment. Id. at 53 (quotations
omitted). Taylor only highlights the level of blatantly
unconstitutional conduct necessary to satisfy the
obviousness principle. Suffice to say, this case bears no
reasonable comparison to Taylor.
O’DOAN V. SANFORD 31
We therefore hold that the district court properly granted
qualified immunity to Sanford and Leavitt on O’Doan’s
§ 1983 wrongful arrest claim. 3
C
We lastly consider O’Doan’s § 1983 claim that the
officers violated due process because they did not discuss
O’Doan’s reported seizure in their police report and affidavit
supporting probable cause. O’Doan relies mainly on
Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (en
banc), which states that “there is a clearly established
constitutional due process right not to be subjected to
criminal charges on the basis of false evidence that was
deliberately fabricated by the government.” Id. at 1074–75.
Devereaux does not govern here because O’Doan has not
shown how any clearly established law rendered
unconstitutional the omission of his claimed seizure in the
officers’ reports and affidavit. In Devereaux, we were clear
that to support a deliberate fabrication of evidence claim, the
plaintiff “must, at a minimum, point to evidence that
supports at least one of the following two propositions:
3
Assuming O’Doan can assert a parallel ADA wrongful arrest claim
against the City, see Sheehan, 743 F.3d at 1232, that claim likewise fails.
To make out such a claim and recover money damages (which O’Doan
seeks), O’Doan would need to “prove intentional discrimination on the
part of the defendant.” Duvall v. County of Kitsap, 260 F.3d 1124, 1138
(9th Cir. 2001) (as amended). This standard is met through a showing
of “deliberate indifference,” which “requires both knowledge that a harm
to a federally protected right is substantially likely, and a failure to act
upon that . . . likelihood.” Id. at 1138–39. Based on the record evidence
we have recited above, O’Doan cannot show that the officers acted with
deliberate indifference. See also Updike v. Multnomah County, 870 F.3d
939, 951–52 (9th Cir. 2017) (deliberate indifference “must be a result of
conduct that is more than negligent” (quotations omitted)).
32 O’DOAN V. SANFORD
(1) Defendants continued their investigation of [the plaintiff]
despite the fact that they knew or should have known that he
was innocent; or (2) Defendants used investigative
techniques that were so coercive and abusive that they knew
or should have known that those techniques would yield
false information.” Id. at 1076. Construing the facts in the
light most favorable to O’Doan, neither of those
circumstances is present here. Nor has O’Doan come
forward with “direct evidence of deliberate fabrication.”
Spencer v. Peters, 857 F.3d 789, 799 (9th Cir. 2017)
(emphasis omitted).
In fact, if anything, Devereaux made clear that
allegations analogous to the ones O’Doan raises here would
be insufficient to show deliberate fabrication. That is
because Devereaux held that “withholding exculpatory
evidence . . . cannot in itself support a deliberate-fabrication-
of-evidence claim.” Id. at 1079. Deliberate fabrication, in
other words, must mean something more than a mere
omission. Regardless, we have located no clearly
established law, and O’Doan and the dissent cite none, that
would suggest police officers commit a due process violation
when they omit from their write-ups initial accounts from an
arrestee or others that the arrestee had undergone a seizure
at some point before the unlawful conduct.
In this case, moreover, Leavitt’s report did state that
O’Doan was transported to a hospital to be “evaluated for his
injuries and other possible health issues.” Nothing in clearly
established law suggests that the officers were required to
provide more detail to avoid violating the Constitution (the
police reports likewise did not mention Leavitt’s skepticism
as to whether O’Doan’s claimed seizure had caused his
conduct). While we can agree that more information is
usually better than less and that including more specific
O’DOAN V. SANFORD 33
information about reports of O’Doan’s possible seizure
would have been preferable, the question here is whether
officers violated clearly established law. It is plain they did
not.
The dissent claims that “an even clearer sign of
intentional fabrication” is that Officer Leavitt in a
handwritten portion of his affidavit listed O’Doan’s offense
time at 6:50 pm and his arrest time at 7:02 pm, when in fact
O’Doan was not formally arrested until he was discharged
from the hospital. The dissent is incorrect. If such a minor
discrepancy qualified as a “clear sign” of “intentional
fabrication” sufficient to defeat qualified immunity, law
enforcement officers would find themselves on trial for
nearly every police report they draft. Here, it was certainly
understandable for Leavitt to note O’Doan’s arrest time as
7:02 pm when officers had at that point placed him in
handcuffs and leg restraints. Leavitt’s same affidavit also
specifically (and accurately) notes that O’Doan was later
taken to the hospital for evaluation and released into
officers’ custody.
Police reports can be written quickly, at odd hours, and
with other law enforcement matters pressing. It is
unreasonable to presume, as the dissent does, that Leavitt’s
recordation of the arrest time was part of some elaborate
scheme to fabricate facts. If there was an inaccuracy in
Leavitt’s affidavit, it was a technical one at best. There is no
basis to treat this as a deliberate fabrication of evidence.
* * *
We affirm the district court’s grant of summary
judgment on O’Doan’s federal claims. For the same reasons,
34 O’DOAN V. SANFORD
we affirm the district court’s grant of summary judgment on
O’Doan’s parallel state law claims.
AFFIRMED.
BLOCK, Senior District Judge, dissenting in part:
The majority’s opinion is a textbook example of highly
skilled craftsmanship and spot-on articulation by my
talented colleagues of the legal principles governing
qualified immunity for police officers in the performance of
their duties. If not for one principal flaw in the application of
these principles, I would wholeheartedly cast the third vote
for affirmance. Surely, based upon the majority’s recitation
of the facts, summary judgment would be warranted.
But the problem with the majority’s opinion is that there
are clearly material factual disputes and credibility
determinations that are for a jury – not judges – to resolve.
Accordingly, I dissent from those parts of the opinion
granting summary judgment for the police officers on
O’Doan’s § 1983 false arrest and due process claims, as well
as on his ADA claim. 1
I.
I disagree that reviewing the facts “in the light most
favorable to O’Doan,” as the majority professes to do,
warrants granting summary judgment. The majority has
selectively chosen to overlook other relevant facts that a jury
1
I concur in those parts of the majority’s opinion upholding the
district court’s grant of summary judgment on the excessive force and
failure to train claims.
O’DOAN V. SANFORD 35
should be permitted to consider. The majority’s basic
mistake is its failure to recognize and apply the legal
principles governing summary judgment. Indeed, it makes
no mention of these principles, which are designed to
prevent judges from usurping the province of the jury.
We best articulated the summary judgment test years ago
in T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass’n, 809
F.2d 626 (9th Cir. 1987). Drawing on Supreme Court
precedent and the language of Federal Rule of Civil
Procedure 56, we laid down the following principles:
(1) “Rule 56 provides that summary judgment shall be
rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” T.W. Elec., 809 F.2d at 630
(internal quotations omitted).
(2) “Whether a ‘genuine’ issue can be said to exist with
respect to a material fact is often a close question. Clearly,
the nonmoving party must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Id. (internal quotations omitted).
(3) “Instead, the nonmoving party must set forth, by
affidavit or as otherwise provided in Rule 56, specific facts
showing that there is a genuine issue for trial. Hence the
nonmoving party may not merely state that it will discredit
the moving party’s evidence at trial and proceed in the hope
that something can be developed at trial in the way of
evidence to support its claim. Instead, it must produce at
least some significant probative evidence tending to support
the complaint.” Id. (internal quotations and citations
omitted).
36 O’DOAN V. SANFORD
(4) “[T]he issue of material fact required by Rule 56(c)
to be present to entitle party asserting its existence; rather,
all that is required is that sufficient evidence sup porting the
claimed factual dispute be shown to require a jury or judge
to resolve the parties’ differing versions of the truth at trial.
Thus, at this stage of the litigation, the judge does not weigh
conflicting evidence with respect to a disputed material
fact.” Id. (internal quotations and citations omitted).
(5) “Nor does the judge make credibility determinations
with respect to statements made in affidavits, answers to
interrogatories, admissions, or depositions. These
determinations are within the province of the factfinder at
trial.” Id.
(6) “[A]t summary judgment, the judge must view the
evidence in the light most favorable to the nonmoving party:
if direct evidence produced by the moving party conflicts
with direct evidence produced by the nonmoving party, the
judge must assume the truth of the evidence set forth by the
nonmoving party with respect to that fact. Put another way,
if a rational trier of fact might resolve the issue in favor of
the nonmoving party, summary judgment must be denied.”
Id. at 630–31.
(7) “Inferences must also be drawn in the light most
favorable to the nonmoving party. Inferences may be drawn
from underlying facts that are not in dispute, such as
background or contextual facts and from underlying facts on
which there is conflicting direct evidence but which the
judge must assume may be resolved at trial in favor of the
nonmoving party.” Id. at 631 (internal citations omitted).
(8) “Thus, the court’s ultimate inquiry is to determine
whether the specific facts set forth by the nonmoving party,
coupled with undisputed background or contextual facts, are
O’DOAN V. SANFORD 37
such that a rational or reasonable jury might return a verdict
in its favor based on that evidence.” Id. (internal quotations
omitted).
(9) “If the nonmoving party produces direct evidence of
a material fact, the court may not assess the credibility of this
evidence nor weigh against it any conflicting evidence
presented by the moving party. The nonmoving party’s
evidence must be taken as true.” Id.
The same principles apply in assessing whether to grant
summary judgment for a defendant on the grounds of
qualified immunity. See Newmaker v. City of Fortuna,
842 F.3d 1108, 1111, 1116 (9th Cir. 2016).
As a trial judge for the last twenty-six years, I have
granted summary judgment on qualified immunity grounds
to many police officers in recognition of the uncertainties
and life-threatening risks they daily face to protect us. But I
have also been obliged to let a jury make that decision
whenever there are not clearly undisputed, dispositive facts,
and especially when factual resolutions depend on
credibility determinations. Such is this case.
II.
The core issue here is whether the police knew or should
have known they were arresting a criminal or an epileptic.
On this record, this is a quintessential question for a
factfinder, not a judge. No one disputes, nor rationally can,
the obvious: you do not put an epileptic in jail. See Bryan v.
MacPherson, 630 F.3d 805, 829 (9th Cir. 2010) (“A
mentally ill individual is in need of a doctor, not a jail cell”);
see also District of Columbia v. Wesby, 138 S. Ct. 577, 590
38 O’DOAN V. SANFORD
(2018) (defining “clearly established” law). 2 It is “beyond
debate” that you take seizure patients to the hospital, not to
jail. MacPherson, 630 F.3d at 829.
The majority’s palpable failing is that it credits all the
testimony of the police and the emergency personnel and
ignores all the contrary documentary and testimonial
evidence that places their credibility in serious doubt. By
doing so, the majority’s opinion disregards at least three of
the basic summary judgment principles:
(1) The judge does not “make credibility determinations
with respect to statements made in affidavits, answers to
interrogatories, admissions, or depositions. These
2
Justice Gorsuch cogently articulated this “obviousness” principle
as a circuit judge:
In deciding the clearly established law question this
court employs a sliding scale under which the more
obviously egregious the conduct in light of prevailing
constitutional principles, the less specificity is required
from prior case law to clearly establish the violation.
After all, some things are so obviously unlawful that
they don’t require detailed explanation and sometimes
the most obviously unlawful things happen so rarely
that a case on point is itself an unusual thing. Indeed, it
would be remarkable if the most obviously
unconstitutional conduct should be the most immune
from liability only because it is so flagrantly unlawful
that few dare its attempt.
Browder v. City of Albuquerque, 787 F.3d 1076, 1082–83 (10th Cir.
2015) (internal quotations and citations omitted); see also Northern v.
City of Chicago, 126 F.3d 1024, 1028 (7th Cir. 1997) (“[T]he police
cannot obtain immunity for liability for false arrest by arresting people on
preposterous charges and then pointing to the absence of any judicial
decision that declares the statutory interpretation underlying the charges
to be preposterous.”).
O’DOAN V. SANFORD 39
determinations are within the province of the factfinder at
trial.” T.W. Elec., 809 F.2d at 630.
(2) “If the nonmoving party produces direct evidence of
a material fact, the court may not assess the credibility of this
evidence nor weigh against it any conflicting evidence
presented by the moving party. The nonmoving party’s
evidence must be taken as true.” Id. at 631
(3) “Inferences must also be drawn in the light most
favorable to the nonmoving party. Inferences may be drawn
from underlying facts that are not in dispute, such as
background or contextual facts and from underlying facts on
which there is conflicting direct evidence but which the
judge must assume may be resolved at trial in favor of the
nonmoving party.” Id. (internal citations omitted).
Just a few examples will suffice to explain how the
majority ignores these principles.
A. At the Scene
1. The Facts
It all began with the 911 call by O’Fria. The detail is
important. At about 6:45 on the evening of July 15, 2016,
O’Fria made a 911 call from her home in the Shade Tree
Trailer Park in Reno, Nevada, to report that she needed an
ambulance because her “boyfriend had an epileptic seizure.”
She thought it was “very, very bad” and said that “[h]e is
nude and he tends to wander the neighborhood.”
The 911 operator immediately called “paramedics” who
asked for the “address of the emergency.” Subsequently,
someone named Piper (presumably the 911 operator) called
“Dispatch.” Piper gave dispatch O’Doan’s address and said
40 O’DOAN V. SANFORD
that the “[p]atient is postictal and violent at this time.”
Dispatch then said, “[a]ll right. I’ll let them know.”
Moments later, someone named Emily called 911 from
dispatch and had O’Fria patched in. Before O’Fria spoke,
Emily commented that O’Doan “is postictal and very
uncooperative and violent.” O’Fria told dispatch and 911
that O’Doan “has epilepsy” and twice told them that he is
“having a very bad epileptic seizure.” O’Fria then said that
O’Doan is “trying to leave,” “he’s naked,” “[h]e’s trying to
break out of the window, and “[h]e’s hurting himself very,
very bad.” Someone on this three-way call told O’Fria: “I
will let [emergency personnel] know” about O’Doan’s
seizure. The transcribed record then reports that there may
have been a disconnect.
O’Fria then called 911 again and stated that O’Doan “is
in a fugue state right now,” “last time the cops attacked him
for not listening,” and “please make sure they know he’s
epileptic.” The operator responded that “the officers have to
do whatever they have to do to keep themselves and
everybody else safe,” and “I did let them know that . . . he’s
having a grand mal seizure.”
Although the transcript is not a paradigm of clarity, it is
apparent O’Fria then repeated that “[h]e is epileptic,”
explaining that “he is having a grand mal seizure,” and
begged the operator to “make sure that [the cops] know he’s
epileptic.” The call ended with the operator saying, “I am
going to let the officers know everything.”
I have listened to the audio, which is an exhibit, and
believe that what is translated on the written transcript,
although commingled and somewhat disjointed, is
substantively correct. I have labored to report it fully and
O’DOAN V. SANFORD 41
accurately because it bears directly on the critical issue of
the officers’ knowledge.
Officer Sanford claims that although he had all the
dispatch information in his police car, he never listened to
all the 911 calls and had only a limited recollection of what
was communicated to him. Here is his testimony about his
abject ignorance:
First, he said “I didn’t hear the 911 call before I arrived
on the scene.” Under continued questioning, Officer Sanford
initially persisted in his lack of knowledge about the 911
calls. But, finally, he acknowledged being advised before he
got to the scene that “the subject is in a grand mal seizure”
and that the “last time officers attacked him [was] due to him
being in a seizure.”
Officer Leavitt testified similarly. Like Officer Sanford,
he professed to have limited knowledge of the 911 calls. And
the majority credits his testimony that “he did not remember
reading the EMS advisory on the car computer and was not
aware, upon arriving at the scene, that O’Doan had allegedly
suffered a seizure.” The majority goes further. While
acknowledging that although “[t]here is evidence . . . that
Sandford and Leavitt were aware of reports, ultimately
sourced to O’Fria and later O’Doan, that O’Doan had had a
seizure,” it discounts this evidence because it credits the
officers’ testimony that they “did not hear” the 911 calls.
But the record reflects that the officers acknowledged
having some knowledge – albeit limited – of what was
communicated to them before they arrived at the scene. A
jury should assess their credibility and determine what they
knew or should have known about O’Doan’s condition. It
may not agree with the majority’s factual finding that the
officers “did not hear the 911 calls.”
42 O’DOAN V. SANFORD
The majority also supports its decision by crediting the
testimony of the “emergency personnel at the scene” who
“did not believe O’Doan had suffered a seizure or that he
was in a ‘post-ictal’ (post seizure) state.” In particular, the
majority relies on the testimony of two firefighters who
“believed [O’Doan] was on drugs.” One of them, Trevor Alt,
boasted that “he would disagree with [any] doctor” who
determined that O’Doan was in a post-ictal state.
In fact, plaintiff’s expert, Dr. Greenberg – a specialist in
emergency medicine who never had the opportunity to
testify – had opined in his expert report that “Mr. O’Doan
had experienced a grand mal seizure and was in a post-ictal
state when REMSA and Reno police arrived,” and that
O’Doan “was substantively not in a rational mental state . . .
[nor could he] understand the nature and quality of his
action.”
The majority also references firefighter Blondfield’s
testimony that although he “informed EMS that O’Fria had
told him on the scene that O’Doan had a history of seizures,”
he “did not recall EMS’s response,” nor did he “recall
passing on this information to the police officers.”
The majority makes the further finding that even if the
officers knew that O’Doan was “having a seizure or
epilepsy,” the facts reflected “potential criminal
wrongdoing” and “conduct that on its face violated Nevada
law.” Presumably, the law the majority has in mind is that it
would be indecent exposure to run around naked in public.
There is, however, another Nevada law, which a jury could
assess if it were given the opportunity to pass upon the facts
that are truly at the heart of this case. Nev. Rev. Stat.
§ 433A.160 (2015) authorizes the police to “[t]ake a person
alleged to be a person with mental illness into custody to
apply for emergency admission of the person for evaluation,
O’DOAN V. SANFORD 43
observation and treatment” and to “[t]ransport the person . . .
to a public or private . . . hospital.”
Officer Leavitt testified that at the scene O’Doan was
looking at him with “an upset face, angry that I’m there.”
But although O’Doan “presented towards [Leavitt] like he
would have come towards [Leavitt] right there,” O’Doan
never “actually attack[ed him.]” The officers restrained
O’Doan, who was 5’3” and weighed 160 pounds, with a
“reverse reap throw” to prevent him from hurting himself.
As the majority opinion recounts, “[w]hile O’Doan suffered
some abrasions during this episode, his injuries were minor.”
Notably, O’Doan was not arrested at the scene. Rather,
as the majority writes, “EMS administered a sedative,”
which began to relax him. O’Doan “was then loaded onto a
gurney and into an ambulance,” and transported to the
hospital. The majority opinion then recounts Officer
Leavitt’s testimony “that because it was ‘uncommon to have
an individual naked running down the street,’ officers in that
type of situation want to ensure persons like O’Doan are ‘not
on any foreign substances to make them mentally not sound
there, to make them act in this behavior that isn’t common.’”
Based on this suspect record, if I were still a trial lawyer,
I would have a field day cross-examining the police officers
and firefighters whose testimony the majority fully credits.
And I’m fairly confident that a jury might believe that Dr.
Greenberg’s knowledge of medicine is superior to that of
firefighter Alt’s. But, the most telling part of my cross-
examination would focus on Officer Leavitt’s testimony.
2. Cross-Examination
The following would be a snippet of the questions I
would ask Officer Leavitt:
44 O’DOAN V. SANFORD
Q. The 911 Operator testified that she “let the officers
know everything.” How then can you claim that “you did not
hear the calls” or know why the EMS was being dispatched
to the scene?
Q. Did you have any reason to believe, therefore, that
you were being dispatched to a crime scene?
Q. Isn’t the reason why you had to administer a “reverse
reap throw” was because you saw that O’Doan was thrashing
around while running around naked and at risk of hurting
himself?
Q. Isn’t it true that O’Doan was not a threat to you and
“he never actually attacked you?”
Q. Did you really believe that a person reportedly in the
throes of an epileptic episode and running around naked was
committing a crime?
Q. Are you aware that under Nevada’s indecent exposure
law the exposure must be intentional?
Q. Are you aware that under Nevada law the correct
police response for someone in O’Doan’s condition was to
take him into custody to transport him to a hospital for
“evaluation, observation and treatment?”
Q. O’Doan only sustained “minor injuries” from the
“reverse reap throw” and you did not arrest him at the scene.
You testified that it was “uncommon to have an individual
naked running down the street and that you wanted to ensure
that persons like O’Doan are “not on any foreign substances
to make them mentally not sound there, to make them act in
this behavior that isn’t normal.” Isn’t the primary reason
O’DOAN V. SANFORD 45
O’Doan was placed in a gurney and taken to the hospital was
because of his mental condition?
Q. O’Fria told the 911 Operator that O’Doan was
“having an epileptic seizure,” that “[h]e has epilepsy,” and
that “[h]e’s having a very bad epileptic seizure.” And,
further, that “[h]e’s trying to leave,” “he’s naked,” “he’s
trying to break out of the window,” and [h]e’s hurting
himself very, very, bad.” How can it be that you only had
limited knowledge of the 911 calls if you knew O’Doan had
a seizure?
Q. Did you speak with O’Fria about this incident at the
scene, and if not, why not?
Q. If O’Fria had called from an office in the United
States Supreme Court and told you her boyfriend had just
bolted out of the building, was having a seizure and was
running down Pennsylvania Avenue naked, would you arrest
him for indecent exposure?
Based upon Officer Leavitt’s answers to these questions,
the jury would be able to size up his credibility and
determine whether the officers knew or should have known
that O’Doan was an epileptic and had not committed a crime.
B. At the Hospital
I. The Facts
If there was any doubt before O’Doan was sent to the
hospital that he was not in his right mind when he was
running around naked hours earlier, the events at the hospital
confirmed that the officers knew or should have known that
O’Doan did not have the requisite mens rea to warrant his
arrest.
46 O’DOAN V. SANFORD
As succinctly stated in U.S. v. Ortiz-Hernandez:
[a] person may not be arrested, or must be
released from arrest, if previously established
probable cause has dissipated. As a
corollary. . . of the rule that the police may
rely on the totality of facts available to them
in establishing probable cause, they also may
not disregard facts tending to dissipate
probable cause.
427 F.3d 567, 574 (9th Cir. 2005) (internal quotations
omitted); see also Nicholson v. City. of L.A., 935 F.3d 685,
691 (9th Cir. 2019) (“A reasonable officer would know that
participation in an ongoing seizure after any probable cause
had dissipated violates the Fourth Amendment.”).
Thus, qualified immunity does not attach if an arrest
occurs after probable cause dissipates. See Broam v. Bogan,
320 F.3d 1023, 1032 (9th Cir. 2003) (“An officer is not
entitled to [] qualified immunity . . . where exculpatory
evidence is ignored that would negate a finding of probable
cause.”); see also C.L. by and through Leibel v. Grossman,
798 F.App’x 1015 (9th Cir. 2020) (no qualified immunity
for officer whose probable cause dissipated upon learning
suspect was autistic). 3
3
The district court and the majority relied heavily on Everson v.
Leis, 556 F.3d 484 (6th Cir. 2009), noting that it involved an epileptic
man who alleged police did not have probable cause to arrest him due to
a lack of mens rea. The Sixth Circuit found the arresting officer was
entitled to qualified immunity. The majority fails to note the result in
Everson was materially affected by the failures of Everson’s counsel,
who did not respond to the defendant’s summary judgment motion and
was subsequently suspended from the practice of law. In the absence of
O’DOAN V. SANFORD 47
Officer Leavitt acknowledged that O’Doan was not
arrested until he was released from the hospital, about two
hours after he was admitted. He “made the decision at [the
hospital],” and had told that to Sanford, who “did not
object.” At that time O’Doan was not in handcuffs, was in a
hospital gown, had been treated for his epilepsy, and had
been discharged. But instead of sending him home to be
cared for by his girlfriend, Officer Leavitt cuffed him, told
him he was under arrest, put him in a paddy wagon, and
placed him in jail. O’Doan remained there until his mother
bailed him out in the morning.
Officer Sanford did this even though he acknowledged
receiving and signing a seven-page hospital discharge report
that diagnosed O’Doan as having had a seizure. The very
first page of the document expresses clearly, “Your
Diagnosis Was Seizure.” (emphasis in original). In
addition, just three pages before Officer Sanford’s signature,
the document connects O’Doan’s seizure activity to his
broader medical condition of epilepsy:
A seizure is abnormal electrical activity in
the brain. Seizures can cause a change in
attention or behavior (altered mental status).
Seizures often involve uncontrollable
shaking (convulsions). Seizures usually last
from 30 seconds to 2 minutes. Epilepsy is a
brain disorder in which a patient has
repeated seizures over time.
“affidavits or other forms of evidence from Everson’s side,” it is hardly
surprising the Sixth Circuit granted the summary judgment motion.
Everson, 556 F.3d at 496.
48 O’DOAN V. SANFORD
(emphasis added). Whether Officer Sanford knew of the
contents and significance of the document he signed is a
critical question that must be resolved by a jury and not by
judges.
The majority also states that Officer Leavitt “gave
uncontradicted testimony that, after speaking with a doctor
at the hospital . . . [the facts did] not match up to what
Mr. O’Doan is saying.” However, I invite my colleagues to
search the record to locate any support for Officer Leavitt’s
“testimony.” They won’t find it.
The doctor in question was Dr. DiRocco. He
unequivocally testified that he could not recall ever
“discuss[ing] Mr. O’Doan’s diagnosis with the police before
he was released into their custody.” Moreover, he had no
recollection “that the police brought Mr. O’Doan into the
emergency room,” nor “what happened when Mr. O’Doan
was released from [his] care.”
Certainly, Officer Leavitt’s so-called “uncontradicted
testimony” should be subject to cross-examination.
The majority also supports its grant of qualified
immunity because “nothing required the officers to reach the
further conclusion that O’Doan was in a post-ictal state when
he engaged in the wrongful acts” since “Dr. DiRocco himself
could not make that assessment.” Although Dr. DiRocco did
not have definitive knowledge of O’Doan’s condition at the
scene, he nonetheless was able to conclude from the hospital
records that O’Doan had “an epileptic seizure.” And he
would so “testify before a judge.” Clearly, the doctor’s
knowledge and the bases for his conclusion are matters for
resolution by a jury.
O’DOAN V. SANFORD 49
O’Doan was charged under Nevada law with resisting
arrest and indecent exposure – both of which require a
culpable mental state. See Nev. Rev. Stat. § 1999.280.3
(Resisting a Public Officer) (requiring that the prohibited
conduct be committed “willfully”); Nev. Rev Stat.
§ 201.220.1 (Indecent or Obscene Exposure); Young v.
State, 109 Nev. 205, 215 (1993) (requiring “intentional”
exposure to sustain a conviction under § 201.220); Quiriconi
v. State, 95 Nev. 195, 196 n.3 (same). Wisely, better heads
prevailed, and the charges were subsequently dropped.
2. Cross Examination
Here is a condensed version of questions I would ask
Officer Sanford:
Q. Isn’t it true that you signed the discharge papers at the
hospital when you arrested O’Doan?
Q. Explain to the jury how you could have signed on the
seventh page without having any knowledge of any of the
information contained on the other pages?
Q. If you knew that those pages describe O’Doan as
having suffered from a seizure, that they connect O’Doan’s
seizure activity to his broader epilepsy medical condition,
and state that “[e]pilepsy is a brain disorder in which a
patient has repeated seizures over time,” would you still have
agreed with Officer Leavitt that O’Doan should have been
arrested?
Q. If so, why?
Q. Why was O’Doan arrested at the hospital and not at
the scene?
50 O’DOAN V. SANFORD
Q. I assume you understand that the crimes for which
O’Doan was arrested required that he acted intentionally?
Q. Since O’Doan was not arrested at the scene, why was
he arrested at the hospital after he was diagnosed as having
had an epileptic seizure and had been treated for his
epilepsy?
A jury should be permitted to hear the answers to those
questions – as well as being allowed to resolve all the other
factual issues which permeate this entire record.
I have chosen to write a somewhat unconventional
dissenting opinion to dramatize the value and importance of
our jury system and that we should be circumspect in
allowing judges to be factfinders. See Jacob v. City of New
York, 315 U.S. 752, 752–53 (1942) (“The right of jury trial
in civil cases at common law is a basic and fundamental
feature of our system of federal jurisprudence which is
protected by the Seventh Amendment. A right so
fundamental and sacred to the citizen, whether guaranteed
by the Constitution or provided by statute, should be
jealously guarded by the courts.”); Dale Broeder, The
Functions of the Jury: Facts or Fictions? 21 U. Chi. L. Rev.
386, 388 (“The jury system also supposes that the judgment
of twelve men whose differences are resolved through open-
minded discussion is better than the judgment of [the
judge]”). It hopefully will have the added virtue of serving
as a cautionary tale that the concept of qualified immunity
has its limits – especially in the sensitive area of alleged
police misconduct. 4
4
Recent events have placed qualified immunity in the public
spotlight. Judges and the public alike are criticizing what is perceived as
O’DOAN V. SANFORD 51
III
It was also improper for the majority to grant summary
judgment on O’Doan’s ADA wrongful arrest claim. The
Ninth Circuit recognizes ADA claims for arrests “where
police wrongly arrest someone with a disability because they
misperceive the effects of that disability as criminal
activity.” Sheehan v. City of San Francisco, 743 F.3d 1211,
1232 (9th Cir. 2014), rev’d in part on other grounds, City of
San Francisco v. Sheehan, 575 U.S. 600 (2015).
The majority is correct that “O’Doan would need to
“‘prove intentional discrimination’ and that “[t]his standard
is met by a showing of ‘deliberate indifference,’ which
‘requires both knowledge that a harm to a federally protected
right is substantially likely, and a failure to act upon that . . .
tantamount to an absolute bar on police accountability. See Hailey Fuchs,
Qualified Immunity Protection for Police Emerges as Flash Point Amid
Protests, N.Y. TIMES, Jun. 23, 2020, at A16 (“Once a little-known rule,
qualified immunity has emerged as a flash point in the protests spurred
by [George] Floyd’s killing and galvanized calls for police reform.”); see
also Circuit Judge James A. Wynn Jr., Opinion: As a judge, I have to
follow the Supreme Court. It should fix this mistake., WASH. POST, Jun.
12, 2020, https://www.washingtonpost.com/opinions/2020/06/12/judge-
i-have-follow-supreme-court-it-should-fix-this-mistake/ (Qualified
immunity “prevents plaintiffs from pursuing their claims . . . and excuses
ever more egregious conduct from liability”). Justice Sotomayor has
criticized the ever-expanding doctrine of qualified immunity as “an
absolute shield for law enforcement officers.” Kisela v. Hughes, 138 S.
Ct. 1148, 1162 (2018) (J. Sotomayor, dissenting) (finding the majority
opinion “tells the public that palpably unreasonable conduct will go
unpunished.”). She aptly describes the Supreme Court’s “unflinching
willingness” to reverse denials of qualified immunity, while rarely
intervening in wrongful grants of qualified immunity, as “gutting the
deterrent effect of the Fourth Amendment.” Id.
52 O’DOAN V. SANFORD
likelihood.’” (citing Duvall v. City of Kitsap, 260 F.3d 1124,
1139 (9th Cir. 2001)).
The “deliberate indifference” test is satisfied “[w]hen the
plaintiff has alerted the public entity to his need for
accommodation (or where the need for accommodation is
obvious, or required by statute or regulation).” Duvall,
260 F.3d at 1139. Therefore, if the officers knew that
O’Doan’s conduct was a result of a seizure, O’Doan has a
viable ADA wrongful arrest claim. Since the officers’
knowledge is once again at the heart of the issue, summary
judgment is inappropriate.
IV
Finally, summary judgment is also inappropriate on
O’Doan’s § 1983 due process claim that Officers Leavitt and
Sanford violated due process by not discussing O’Doan’s
reported seizure in their police report and supporting
affidavit. The majority is correct that “O’Doan relies
principally on Devereaux v. Abbey, 263 F.3d 1070 (9th Cir.
2001), which states that ‘there is a clearly established
constitutional due process right not to be subjected to
criminal charges on the basis of false evidence that was
deliberately fabricated by the government.’”
However, a jury could come to a different conclusion for
a number of reasons. There are three police records at issue:
(1) Officer Sanford’s police report, (2) Officer Leavitt’s
police report, and (3) Officer Leavitt’s arrest report. Initially,
a jury may infer that the failure of the officers to include
O’Doan’s seizure diagnosis in their police reports – a
diagnosis reached by Dr. DiRocco before O’Doan’s arrest –
was hardly benign. No one reading the police reports would
have any clue of the circumstances surrounding the arrest.
O’DOAN V. SANFORD 53
Officer Leavitt’s arrest report is likewise silent as to
O’Doan’s seizure. But there is an even clearer sign of
intentional fabrication in this report. On the first page,
Officer Leavitt reports that the “Offense Date” occurred at
the scene at “1850” (6:50 pm), and that O’Doan was arrested
there twelve minutes later at “1902” (7:02 pm). This was not
true. And a jury certainly could conclude that Officer Leavitt
knew it since he admitted in his sworn deposition that he
arrested O’Doan two hours later at the hospital.
Based on this entire record, a jury could easily conclude,
and certainly could infer, that the officers wanted to hide the
ball to make this seem like an innocuous indecent exposure
case, and that this falsehood was hardly unintentional.
CONCLUSION
Accordingly, the district court’s grant of summary
judgment must be reversed with respect to O’Doan’s false
arrest, ADA wrongful arrest, and due process claims.