Slater v. Deasey

          D.C. No. 5:16-cv-01103-JFW-KK

          Before: Jacqueline H. Nguyen and John B. Owens, Circuit Judges, and John Antoon II, ^[*] District Judge.

         SUMMARY^[**]

         Civil Rights

         The panel denied a petition for panel rehearing and denied a petition for rehearing en banc on behalf of the court, and ordered that no further petitions shall be entertained.

         Dissenting from the denial of rehearing en banc, Judge Collins, joined by Judges Bea, Ikuta, and Bress, stated that in holding that the police officers in this case violated clearly established law when they restrained Joseph Slater in the back of a patrol car, allegedly causing his death, the panel continued this court's troubling pattern of ignoring the Supreme Court's controlling precedent concerning qualified immunity in Fourth Amendment cases. Judge Collins stated that Plaintiffs had the burden to find a controlling precedent that squarely governed the specific facts of this case. They failed to carry that burden, and the district court's grant of summary judgment on qualified immunity grounds should have been affirmed.

          ORDER

         The panel voted to deny Defendants' petition for panel rehearing. Judges Nguyen and Owens voted, and Judge Antoon recommended, to deny Defendants' petition for rehearing en banc.

         The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. See Fed. R. App. P. 35.

         The petition for panel rehearing and the petition for rehearing en banc are denied. No future petitions for rehearing or rehearing en banc will be entertained.

          COLLINS, Circuit Judge, with whom BEA, IKUTA, and BRESS, Circuit Judges, join, dissenting from the denial of rehearing en banc:

         In holding that the police officers in this case violated clearly established law when they restrained Joseph Slater in the back of a patrol car, allegedly causing his death, the panel continues this court's troubling pattern of ignoring the Supreme Court's controlling precedent concerning qualified immunity in Fourth Amendment cases. Indeed, over just the last ten years alone, the Court has reversed our denials of qualified immunity in Fourth Amendment cases at least a half-dozen times, often summarily. By repeating-if not outdoing-the same patent errors that have drawn such repeated rebukes from the high Court, the panel here once again invites summary reversal. I respectfully dissent from our failure to rehear this case en banc.

         Two particular features of the panel's decision underscore its neglect of binding Supreme Court authority. First, in addressing whether the relevant law was "clearly established," the panel disregarded the Court's clear instruction that, in Fourth Amendment excessive force cases, "police officers are entitled to qualified immunity unless existing precedent 'squarely governs' the specific facts at issue." Kisela v. Hughes, 138 S.Ct. 1148, 1153 (2018) (citation omitted) (emphasis added). There is no such squarely governing precedent here, and the panel did not claim there was. Instead, the panel simply ignored Kisela (and all of our other recent reversals in Fourth Amendment qualified immunity cases) and denied qualified immunity based on its identification of a single Ninth Circuit decision-Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003)-that the panel concluded was "sufficiently analogous" to this case. See Slater v. Deasey, Mem. Dispo. at 7 (amending 776 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").

         Second, the panel violated governing Supreme Court authority when it extracted from Drummond a "clearly established" rule that is framed at a much higher level of generality than Drummond itself. As the Supreme Court has stated, with evident exasperation, "[w]e have repeatedly told courts-and the Ninth Circuit in particular-not to define clearly established law at a high level of generality." City & Cty. of San Francisco v. Sheehan, 135 S.Ct. 1765, 1775-76 (2015) (citations and internal quotation marks omitted). Despite professing to "'hear the Supreme Court loud and clear, '" Slater, Mem. Dispo. at 6 (citation omitted), the panel is jurisprudentially a bit deaf, because its decision here significantly raised the level of generality of the rule in Drummond, and in doing so, it overlooked critical differences between Drummond and this case.

         The Plaintiffs' claim in this tragic case is that, by using "hobbles" (a form of restraining belt) to prevent Slater from moving around in the patrol car, and by applying brief incidental pressure to Slater while applying the hobbles, the officers caused him to suffer "positional or restraint asphyxia," resulting in his death. According to the panel, the officers were not entitled to qualified immunity for these actions because "[i]n Drummond, we clearly established that 'squeezing the breath from a compliant, prone, and handcuffed individual . . . involves a degree of force that is greater than reasonable.'" Slater, Mem. Dispo. at 6 (quoting Drummond, 343 F.3d at 1059) (ellipses in original). But this statement literally elides critical differences between this case and Drummond by improperly using ellipses to generalize Drummond's much more specific holding that "any reasonable person" should have known that "squeezing the breath from a compliant, prone, and handcuffed individual despite his pleas for air involves a degree of force that is greater than reasonable." 343 F.3d at 1059 (emphasis added). That critical feature of Drummond is missing here: in this case, once the officers noticed that Slater appeared to be in trouble, they promptly summoned paramedics (who had examined Slater earlier and were still on the scene). Moreover, Drummond differs in a second crucial respect, inasmuch as the nature and extent of the force applied by the officers in the two cases are very different. While the two officers in Drummond literally "squeez[ed] the breath" from Drummond by "press[ing] their weight against his torso and neck, crushing him against the ground" for a "substantial period of time," 343 F.3d at 1059-60 & n.7, the specific challenged actions of the officers here did not involve any such direct, sustained compression with the officers' body weight. Instead, Plaintiffs claim that the manner in which the hobbles were applied put Slater in a position such that, coupled with the brief incidental pressure placed on his back during securing of the hobbles, he was at risk of "positional or restraint asphyxia." Given these significant distinctions, Drummond cannot be described as "'squarely govern[ing]' the specific facts at issue." Kisela, 138 S.Ct. at 1153 (citation omitted).

         Under the qualified immunity standards that have been clearly established by the Supreme Court, the district court's dismissal of this action should have been affirmed. I dissent from our failure to rehear this case en banc.

         I

         Because Fourth Amendment excessive force claims "depend[] very much on the facts of each case," Mullenix v. Luna, 136 S.Ct. 305, 309 (2015) (citation and internal quotation marks omitted), it is important to review in some detail the specific alleged actions of the officers that are challenged in this § 1983 suit.

         A

         On April 15, 2015, sometime around 1:00 AM, Deputy Sheriff Shannon Deasey of the County of San Bernardino Sheriff's Department responded to a radio call that a man was pulling out wires from a Valero gas station building in Highland, California.^[1] After Deasey arrived at the Valero station, he saw a man who fit the radioed description crouched down near the front of the gas station. Deasey immediately recognized the man as Slater. Deasey personally knew, from multiple prior encounters, that Slater had a history of mental illness and drug use.

         Deasey identified himself to Slater and asked him what he was doing, but Slater would not respond and instead appeared "mesmerized" by a nearby electronic display screen. Deasey handcuffed Slater without resistance and, after walking Slater over to the police car, Deasey opened the door and asked him to sit down. Slater sat down sideways, with his feet outside the vehicle, but he resisted placing his feet in the car. Slater became paranoid, repeatedly denying that Deasey was a cop and saying that he believed Deasey was going to kill him. When Slater refused Deasey's repeated commands to slide into the car, Deasey threatened to use pepper spray on Slater, and then twice did so. Ultimately, Deasey could not restrain Slater, and he pulled him out of the car. Deasey instead attempted to restrain Slater on the ground, and he again used his pepper spray. Deasey then used a "knee strike" to get Slater to stop resisting; the parties dispute whether the knee strike was on Slater's lower back or his buttocks/thigh area. Deasey radioed for backup, and he also asked for a medical unit.

         Deputy Pete Gentry arrived next on the scene, and he saw Slater on the ground moving his feet back and forth 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 ...