Daniella Slater; Damien Slater, individually and as successors in interest, by and through their Guardian ad Litem Sandra Salazar; Tina Slater; David Bouchard, individually, Plaintiffs-Appellants,
Shannon Deasey, Deputy; previously erroneously named as Shandon Deasey; Peter Gentry, Deputy; Gary Brandt, Deputy; Mike Rude, Sgt.; County of San Bernardino; Does, 1-10, Inclusive, Defendants-Appellees. Daniella Slater; Damien Slater, individually and as successors in interest, by and through their Guardian ad Litem Sandra Salazar; Tina Slater; David Bouchard, individually, Plaintiffs-Appellees,
Shannon Deasey, Deputy; previously erroneously named as Shandon Deasey; Peter Gentry, Deputy; Gary Brandt, Deputy; Mike Rude, Sgt.; County Of San Bernardino, Defendants-Appellants.
Before: Jacqueline H. Nguyen and John B. Owens, Circuit
Judges, and John Antoon II, [*] District Judge.
panel denied a petition for panel rehearing and denied a
petition for rehearing en banc on behalf of the court, and
ordered that no further petitions shall be entertained.
from the denial of rehearing en banc, Judge Collins, joined
by Judges Bea, Ikuta, and Bress, stated that in holding that
the police officers in this case violated clearly established
law when they restrained Joseph Slater in the back of a
patrol car, allegedly causing his death, the panel continued
this court's troubling pattern of ignoring the Supreme
Court's controlling precedent concerning qualified
immunity in Fourth Amendment cases. Judge Collins stated that
Plaintiffs had the burden to find a controlling precedent
that squarely governed the specific facts of this case. They
failed to carry that burden, and the district court's
grant of summary judgment on qualified immunity grounds
should have been affirmed.
panel voted to deny Defendants' petition for panel
rehearing. Judges Nguyen and Owens voted, and Judge Antoon
recommended, to deny Defendants' petition for rehearing
full court was advised of the petition for rehearing en banc.
A judge requested a vote on whether to rehear the matter en
banc. The matter failed to receive a majority of the votes of
the nonrecused active judges in favor of en banc
consideration. See Fed. R. App. P. 35.
petition for panel rehearing and the petition for rehearing
en banc are denied. No future petitions for rehearing or
rehearing en banc will be entertained.
COLLINS, Circuit Judge, with whom BEA, IKUTA, and BRESS,
Circuit Judges, join, dissenting from the denial of rehearing
holding that the police officers in this case violated
clearly established law when they restrained Joseph Slater in
the back of a patrol car, allegedly causing his death, the
panel continues this court's troubling pattern of
ignoring the Supreme Court's controlling precedent
concerning qualified immunity in Fourth Amendment cases.
Indeed, over just the last ten years alone, the Court has
reversed our denials of qualified immunity in Fourth
Amendment cases at least a half-dozen times, often summarily.
By repeating-if not outdoing-the same patent errors that have
drawn such repeated rebukes from the high Court, the panel
here once again invites summary reversal. I respectfully
dissent from our failure to rehear this case en banc.
particular features of the panel's decision underscore
its neglect of binding Supreme Court authority. First, in
addressing whether the relevant law was "clearly
established," the panel disregarded the Court's
clear instruction that, in Fourth Amendment excessive force
cases, "police officers are entitled to qualified
immunity unless existing precedent 'squarely
governs' the specific facts at issue."
Kisela v. Hughes, 138 S.Ct. 1148, 1153 (2018)
(citation omitted) (emphasis added). There is no such
squarely governing precedent here, and the panel did not
claim there was. Instead, the panel simply ignored
Kisela (and all of our other recent reversals in
Fourth Amendment qualified immunity cases) and denied
qualified immunity based on its identification of a single
Ninth Circuit decision-Drummond ex rel. Drummond v. City
of Anaheim, 343 F.3d 1052 (9th Cir. 2003)-that the panel
concluded was "sufficiently analogous" to this
case. See Slater v. Deasey, Mem. Dispo. at 7
(amending 776 Fed.Appx. 942 (9th Cir. 2019)). In applying
this lesser "sufficiently analogous" standard, the
panel committed the very same error for which we were
summarily reversed in Kisela. See 138 S.Ct.
at 1151 (Ninth Circuit had denied qualified immunity
"because of Circuit precedent that the court perceived
to be analogous").
the panel violated governing Supreme Court authority when it
extracted from Drummond a "clearly
established" rule that is framed at a much higher level
of generality than Drummond itself. As the Supreme
Court has stated, with evident exasperation, "[w]e have
repeatedly told courts-and the Ninth Circuit in
particular-not to define clearly established law at a high
level of generality." City & Cty. of San
Francisco v. Sheehan, 135 S.Ct. 1765, 1775-76 (2015)
(citations and internal quotation marks omitted). Despite
professing to "'hear the Supreme Court loud and
clear, '" Slater, Mem. Dispo. at 6
(citation omitted), the panel is jurisprudentially a bit
deaf, because its decision here significantly raised the
level of generality of the rule in Drummond, and in
doing so, it overlooked critical differences between
Drummond and this case.
Plaintiffs' claim in this tragic case is that, by using
"hobbles" (a form of restraining belt) to prevent
Slater from moving around in the patrol car, and by applying
brief incidental pressure to Slater while applying the
hobbles, the officers caused him to suffer "positional
or restraint asphyxia," resulting in his death.
According to the panel, the officers were not entitled to
qualified immunity for these actions because "[i]n
Drummond, we clearly established that 'squeezing
the breath from a compliant, prone, and handcuffed individual
. . . involves a degree of force that is greater than
reasonable.'" Slater, Mem. Dispo. at 6
(quoting Drummond, 343 F.3d at 1059) (ellipses in
original). But this statement literally elides critical
differences between this case and Drummond by
improperly using ellipses to generalize
Drummond's much more specific holding that
"any reasonable person" should have known that
"squeezing the breath from a compliant, prone, and
handcuffed individual despite his pleas for air
involves a degree of force that is greater than
reasonable." 343 F.3d at 1059 (emphasis added). That
critical feature of Drummond is missing here: in
this case, once the officers noticed that Slater appeared to
be in trouble, they promptly summoned paramedics (who had
examined Slater earlier and were still on the scene).
Moreover, Drummond differs in a second crucial
respect, inasmuch as the nature and extent of the force
applied by the officers in the two cases are very different.
While the two officers in Drummond literally
"squeez[ed] the breath" from Drummond by
"press[ing] their weight against his torso and neck,
crushing him against the ground" for a "substantial
period of time," 343 F.3d at 1059-60 & n.7, the
specific challenged actions of the officers here did not
involve any such direct, sustained compression with the
officers' body weight. Instead, Plaintiffs claim that the
manner in which the hobbles were applied put Slater in a
position such that, coupled with the brief
incidental pressure placed on his back during securing of the
hobbles, he was at risk of "positional or restraint
asphyxia." Given these significant distinctions,
Drummond cannot be described as "'squarely
govern[ing]' the specific facts at issue."
Kisela, 138 S.Ct. at 1153 (citation omitted).
the qualified immunity standards that have been clearly
established by the Supreme Court, the district court's
dismissal of this action should have been affirmed. I dissent
from our failure to rehear this case en banc.
Fourth Amendment excessive force claims "depend very
much on the facts of each case," Mullenix v.
Luna, 136 S.Ct. 305, 309 (2015) (citation and internal
quotation marks omitted), it is important to review in some
detail the specific alleged actions of the officers that are
challenged in this § 1983 suit.
April 15, 2015, sometime around 1:00 AM, Deputy Sheriff
Shannon Deasey of the County of San Bernardino Sheriff's
Department responded to a radio call that a man was pulling
out wires from a Valero gas station building in Highland,
California. After Deasey arrived at the Valero
station, he saw a man who fit the radioed description
crouched down near the front of the gas station. Deasey
immediately recognized the man as Slater. Deasey personally
knew, from multiple prior encounters, that Slater had a
history of mental illness and drug use.
identified himself to Slater and asked him what he was doing,
but Slater would not respond and instead appeared
"mesmerized" by a nearby electronic display screen.
Deasey handcuffed Slater without resistance and, after
walking Slater over to the police car, Deasey opened the door
and asked him to sit down. Slater sat down sideways, with his
feet outside the vehicle, but he resisted placing his feet in
the car. Slater became paranoid, repeatedly denying that
Deasey was a cop and saying that he believed Deasey was going
to kill him. When Slater refused Deasey's repeated
commands to slide into the car, Deasey threatened to use
pepper spray on Slater, and then twice did so. Ultimately,
Deasey could not restrain Slater, and he pulled him out of
the car. Deasey instead attempted to restrain Slater on the
ground, and he again used his pepper spray. Deasey then used
a "knee strike" to get Slater to stop resisting;
the parties dispute whether the knee strike was on
Slater's lower back or his buttocks/thigh area. Deasey
radioed for backup, and he also asked for a medical unit.
Pete Gentry arrived next on the scene, and he saw Slater on
the ground moving his feet back and forth while Deasey
attempted to restrain him. Gentry suggested that Deasey get a
"hobble," a form of belt used in restraining
detainees, and Gentry grabbed hold of Slater while Deasey
went to retrieve a hobble from his vehicle. When Deasey
returned, Gentry ultimately shifted positions and ended up
with his knee across Slater's shoulderblades for about 40
seconds, while Slater was on ...