In its July 2024 decision in Scott v. Smith,[1] a Ninth Circuit Court of Appeals panel denied qualified immunity to police officers on an excessive force claim in which an officer temporarily used bodyweight compression on a prone individual’s back and neck. In reaching its conclusion, the Court noted the individual was mentally ill, was not suspected of a crime, and did not present a risk to officers or others. The Court denied the officers qualified immunity as to the Fourth Amendment claim for excessive force based on the facts and evidence before it.
Background[2]
In March 2019, Roy Scott called 911 for help, reporting multiple assailants outside his apartment with a saw. Las Vegas Metropolitan Police Department (“LVMPD” or the “Department”) Officers Kyle Smith and Theodore Huntsman were assigned to the call. Dispatch notified the officers that Scott was mentally ill. Officers Smith and Huntsman arrived at his apartment, knocked and identified themselves. Scott was distressed and hallucinating. Scott yelled that the officers should break his door down because there were people inside, but the officers did not hear anyone inside. Instead, they continued to knock and order Scott to come to the door. About two minutes after first knocking on the door, Smith told Huntsman, “this is a 421A for sure,” using the Department code to indicate he believed Scott was mentally ill. Smith then said to Huntsman: “I ain’t going in there. That’s too sketchy.” Huntsman agreed, saying “That dude’s wacky.” Peering into Scott’s window, Huntsman asked Smith if he could see the “crazed look in [Scott’s] eye.” They could not see anyone else in Scott’s apartment.
When Scott did not open the door, Smith called their sergeant. Smith told Huntsman that their Sergeant said that “at the end of the day we can’t do anything if we don’t hear any reason to have an exigent circumstance.” Smith also explained that their Sergeant suggested they try again to get Scott to come to the door. Smith resumed knocking and ordered Scott to come to the door. Seconds later, and about seven minutes after Smith and Huntsman arrived on the scene, Scott opened the door.
Scott held a metal pipe at his side as he descended the stairs in front of the apartment. He immediately dropped the pipe when the officers asked him to do so. Scott asked the officers twice: “What am I supposed to do?” Smith and Huntsman directed him to stand near a wall at the base of the stairs, and Scott immediately complied. When Huntsman asked Scott if he had any other weapons, Scott produced a knife from his front pocket and said, “I am sorry.” He handed the knife to Huntsman handle-side out and did not make any threatening gestures. The officers directed Scott to face the wall. Scott told them that he had paranoid schizophrenia, and twice asked: “Can you just put me in the car please?” Officer Smith again directed Scott to face the wall. Although they did not discuss it, the officers alleged they recognized Scott was in “some sort of distress” and concluded that he met the qualifications for a medical hold for his mental health and safety.
Smith and Huntsman approached Scott and grabbed his arms. Scott repeatedly pleaded “please” and “what are you doing” in a distressed voice, while Smith and Huntsman pulled him to the ground. At first, the officers held Scott’s arms at his sides while he was lying on his back. In this position, Scott screamed, struggled, and pled with the officers to leave him alone for over two minutes. The officers then eventually rolled Scott onto his stomach, repeatedly ordering Scott to “stop.” With Scott on his stomach and with his hands restrained behind his back, Huntsman put his bodyweight on Scott’s back and neck for about one to two minutes. Smith simultaneously put his weight on Scott’s legs, restraining his lower body. Scott’s pleas became increasingly incoherent and breathless as Huntsman applied his bodyweight.
After handcuffing him, the officers attempted to roll Scott on his side, as he continued to incoherently cry out that he wanted to be left alone. When they rolled Scott over, his face was bloody from contact with the ground. Scott stopped yelling and thrashing around after a few minutes. He did not respond when Smith and Huntsman tried to wake or revive him. When the paramedics arrived, Scott was still unresponsive. After paramedics removed him from the scene, Scott was pronounced dead. Plaintiffs’ expert found that Scott had died from restraint asphyxia.
Rochelle Scott (Scott’s daughter and co-special administrator of his estate) and a representative of Scott’s estate sued Officer Smith, Officer Huntsman, and the Department (“Defendants”). They alleged claims under 42 U.S.C. section 1983 for violation of Scott’s Fourth Amendment right to be free from excessive force and Rochelle Scott’s Fourteenth Amendment right to familial association, among other claims. Defendants Smith and Huntsman moved for summary judgment, arguing in part that no constitutional violation occurred and that they were entitled to qualified immunity.
The District Court granted in part and denied in part Defendants’ motion for summary judgment. The District Court denied qualified immunity to Officers Smith and Huntsman on Plaintiffs’ Fourth Amendment claim and on Rochelle Scott’s Fourteenth Amendment claim. The officers filed an interlocutory appeal challenging the denial of qualified immunity.
Discussion
In determining whether Smith and Huntsman were entitled to qualified immunity, the Ninth Circuit Court of Appeals explained that it asked two questions. “First, viewing the facts in the light most favorable to Plaintiffs, did Smith and Huntsman violate a constitutional right? Rice v. Morehouse, 989 F.3d 1112, 1120 (9th Cir. 2021). And second, if a constitutional right was violated, was it a clearly established right? Id.”
Fourth Amendment Claim
The Ninth Circuit explained that “[u]nder the Fourth Amendment, police may use only such force as is objectively reasonable under the circumstances.” LaLonde v. County of Riverside, 204 F.3d 947, 959 (9th Cir. 2000). To assess the objective reasonableness of an officer’s actions, courts “consider: (1) the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the type and amount of force inflicted, (2) the government’s interest in the use of force, and (3) the balance between the gravity of the intrusion on the individual and the government’s need for that intrusion.” Rice, 989 F.3d at 1121 (quoting Lowry v. City of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017) (en banc)) (cleaned up).
First, the Court held that Smith and Huntsman used deadly force. Deadly force is force that “creates a substantial risk of causing death or serious bodily injury.”[3] Here, Officer Huntsman used bodyweight compression on Scott’s back and neck during and shortly after handcuffing him. While Officer Smith restrained Scott’s lower body, Huntsman kept his bodyweight on Scott’s back and neck for about one to two minutes while Scott’s pleas became increasingly incoherent and breathless. Shortly after, Scott lost consciousness. He was declared dead after paramedics removed him from the scene. The Court stated that its precedent in Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056-57 (9th Cir. 2003) established that the use of bodyweight compression on a prone individual can cause compression asphyxia. Drawing all reasonable inferences in Plaintiffs’ favor, the Court concluded that a jury could find Smith and Huntsman’s conduct was similar deadly force. The Court stated that this comparison was further bolstered by the fact that Drummond used a stricter test than the one the Court applied here.[4]
The Court stated that even if “an emotionally disturbed individual is ‘acting out’ and inviting officers to use deadly force to subdue him,” the government interest in using such force is limited “by the fact that the officers are confronted, not with a person who has committed a serious crime against others, but with a mentally ill individual.” Drummond, 343 F.3d at 1058 (quoting Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001)). Thus, although there is no per se rule establishing different classifications of suspects, the Ninth Circuit has recognized that counseling, where feasible, “may provide the best means of ending a crisis.” Id. (quoting Deorle, 272 F.3d at 1283). Moreover, the Court found that Scott did not pose a danger to the officers or others. Huntsman and Smith did not receive any warning that Scott was dangerous or that he had threatened himself or others.
Scott immediately relinquished both the pipe and knife when directed to do so, handing the knife to the officers with the handle out. He asked to be put in the officers’ patrol car. As to whether Scott was “actively resisting arrest,”[5] Scott did not attack the officers or anyone else, nor did he threaten to do so nor make any threatening movements.[6] Finally, the Court found that Officers Smith and Huntsman ignored less intrusive alternatives to the force they employed, such as verbal de-escalation strategies, waiting for the support of additional officers to execute a safer “team takedown,” or waiting for EMS to execute a “soft restraint.” Thus, because Scott was mentally ill, was not suspected of a crime, and did not present a risk to officers or others, the Court concluded that the government’s interest in applying force was limited.
The Ninth Circuit then determined that the balance of interests here was similar to Drummond, where officers also used significant or deadly force on a mentally ill individual to detain him for a mental health hold. Like Drummond, an officer pressed his weight against the individual’s torso and neck, crushing him against the ground. Despite his pleas, and a lack of any apparent danger, they continued to detain him. There, as here, “grievous injury [did] not serve [the] objective” of taking an individual into “custody to prevent injury to himself” when he is not suspected of any crime. Drummond, 343 F.3d at 1059. Thus, the Court concluded a reasonable jury could thus find that the officers’ use of severe or deadly force was constitutionally excessive. The Court accordingly held that Officers Smith and Huntsman were not justified in using deadly force against Scott, a mentally ill person who was not suspected of committing a crime and presented little or no danger.
The Court of Appeals next considered whether the law was clearly established, so that a reasonable officer would know the officers’ violative conduct was unconstitutional. The Court found Drummond strikingly similar. The Court explained that long before Scott’s death, Drummond clearly established that it is unconstitutional to use bodyweight force on the back and neck of a prone and unarmed individual. Id. at 1059. The law was especially clear where, as here, the officers know the prone individual is suffering from a mental illness and is not suspected of a crime. Id. Thus, reasonable officers would have known that their force was not reasonable and that it created a serious risk of asphyxiating Scott.
Although Defendants argued that Drummond clearly established only that the use of bodyweight force was excessive only on a prone and already handcuffed individual, but the Court explained that Drummond addressed a handcuffed suspect but also opined more generally about the use of bodyweight force on a prone individual, so the officers received fair notice that their force was constitutionally excessive despite the timing of the handcuffing. Moreover, the officers here used their bodyweight on Scott while he was restrained with his hands behind his back, which the Court found the functional equivalent of being handcuffed. The Court noted that the Circuit had repeatedly applied Drummond as clearly established law despite some variation in the force presented,[7] and declared that it did the same here in concluding Drummond clearly established that the officers’ use of force was constitutionally excessive.
The Ninth Circuit thus held that Officers Smith and Huntsman were not entitled to qualified immunity for Plaintiffs’ Fourth Amendment claim and affirmed the denial of qualified immunity as to that claim.
Fourteenth Amendment Claim
The Ninth Circuit explained that parents and children have a substantive due process right to a familial relationship free from unwarranted state interference. Hardwick v. County of Orange, 980 F.3d 733, 740-41 & n.9 (9th Cir. 2020). Applying the deliberate indifference standard to assess whether the officer conduct here “shock[ed] the conscience[,]”[8] the Court held that Smith and Huntsman violated Rochelle Scott’s Fourteenth Amendment right to familial association. The Court explained that an officer acts with deliberate indifference by disregarding a known or obvious consequence of their actions.[9] The Court noted that Scott presented no immediate risk to the officers before they initiated deadly force. When officers took Scott to the ground, he cried out in distress over the course of the encounter. After Huntsman put his bodyweight on Scott, Scott’s cries were also increasingly muffled and incoherent. A jury could find the use of bodyweight force given these circumstances was deliberate indifference.
However, the Court explained that even if a constitutional violation occurred, Smith and Huntsman were nevertheless entitled to qualified immunity unless the constitutional right was clearly established at the time of the officers’ conduct. Because no analogous case existed at the time of the events here, the Ninth Circuit held that the District Court erred by denying Defendants qualified immunity for the Fourteenth Amendment claim. The Court of Appeals accordingly reversed the lower court’s denial of qualified immunity on this claim.
The Court stated that although Rochelle Scott’s constitutional right was not clearly established at the time of the violation in this case, “we now clarify that right going forward. See supra Section II.A[(pointing to its section discussing how Smith and Huntsman violated Rochelle Scott’s Fourteenth Amendment rights)].”
The Ninth Circuit panel remanded for proceedings consistent with its decision here.
Procedural Aftermath
On November 19, 2024, the Defendants’ petition for rehearing and rehearing en banc was denied. On November 26, 2024, the Ninth Circuit panel granted Defendants’ motion to stay the mandate for 90 days. The panel stated that if Defendants timely petitioned for writ of certiorari in the United States Supreme Court during the period of the stay, the stay would continue until final disposition by the Supreme Court. As of January 31, 2025, no such petition is recorded in the Court’s docket for this case.
HOW THIS AFFECTS YOUR AGENCY
The author notes that at least one recent news article expresses that this July 2024 decision “revoked officers’ legal protection when they respond to calls where no crime is being committed.”[10] This is a misinterpretation of this ruling. This case is just like any other case involving Fourth Amendment excessive-force claims, rather than standing for the sweepingly broad generalization set forth in this quote. The Ninth Circuit denied qualified immunity in this case based upon the facts and circumstances before it. Although many may disagree with the Court’s determination, including this author, it does not stand for the proposition that qualified immunity is unavailable to law enforcement officers responding to calls that may ultimately only result in a Section 5150 detention, rather than an arrest for a suspected criminal violation. In response to this case holding, we urge you to consult with your retained legal advisor to determine the best policy response and procedures, given the unique characteristics of your agency staffing and obligations to your community.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com
Information on www.jones-mayer.com is for general use and is not legal advice. The transmission of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
[1] 109 F.4th 1215 (9th Cir. 2024).
[2] The Court of Appeals stated, “This is an interlocutory appeal challenging the denial of qualified immunity. As we recount the facts here, we thus resolve all disputed factual issues in Plaintiffs’ favor. See Est. of Anderson v. Marsh, 985 F.3d 726, 731 (9th Cir. 2021).”
[3] Smith v. City of Hemet, 394 F.3d 689, 706 (9th Cir. 2005).
[4] The Court explained that after Drummond, the Ninth Circuit relaxed its definition of deadly force to encompass force that creates a substantial risk of serious bodily injury, rather than only a substantial risk of death. See Smith, 394 F.3d at 705-06.
[5] See Espinosa v. City and County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010) discussing factors in evaluating the government’s interest in the use of force.
[6] See Smith, supra, 394 F.3d at 703 (finding it significant that the suspect did not attack or threaten officers although he “ignored the officers’ requests to remove his hands from his pajamas and to place them on his head”).
[7] See, e.g., Zelaya v. Las Vegas Metro. Police Dep’t, 682 F. App’x 565, 567 (9th Cir. 2017) (mem.) (holding that although officers used bodyweight force for a period shorter than the officers in Drummond, Drummond controlled because there was a material issue of fact regarding whether the force was used for a “significant” period); Tucker v. Las Vegas Metro. Police Dep’t, 470 F. App’x 627, 629 (9th Cir. 2012) (mem.) (holding that although, unlike Drummond, the suspect resisted, Drummond still controlled because of the similar use of bodyweight force).
[8] Nicholson v. City of Los Angeles, 935 F.3d 685, 692 (9th Cir. 2019) (quoting Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010)).
[9] Id., at 692-693.
[10] See e.g., https://www.cbsnews.com/sacramento/news/sacramento-fire-district-says-sheriffs-offices-new-policy-0Ochange-creates-danger-for-crews/.