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Ninth Circuit:
Officers Who Asphyxiated Man Have Qualified Immunity
Lying on Top of Prone Man Complaining of Difficulty Breathing Is Found to Not Violate Established Law, Despite a Ninth Circuit Case with Similar Facts Finding No Immunity
By Kimber Cooley, Staff Writer
The Ninth U.S. Court of Appeals held yesterday that police officers who used their body weight to hold down and restrain a man—who died of compression asphyxia—so that he could be strapped to a backboard and transported to a hospital for mental-health treatment are entitled to qualified immunity because they were acting at the direction of medical personnel and not in violation of an established rule or obvious standard.
Circuit Judge Danielle J. Forrest wrote the opinion which affirms the judgment of dismissal by Senior District Court Judge Anthony W. Ishii of the Eastern District of California after the issuance of summary judgment in favor of the officers and other defendants. Ishii declined to exercise supplemental jurisdiction over any state-law claims.
Senior Sixth Circuit Judge Danny J. Boggs, sitting by designation, joined in the opinion. Senior Circuit Judge Sidney R. Thomas dissented as to the finding of qualified immunity for the individual officers.
Summoned Help
The events giving rise to the litigation occurred in May 2017. Fresno Police Department Officers James Rossetti, Sean Calvert, and Chris Martinez observed Joseph Perez waving for help and talking to himself, saying that people were chasing and hitting him. Concerned that he was going to dart into the busy street, they detained him and called for a paramedic to transport him to the hospital for mental health treatment.
Fresno County Sheriff’s Department Deputies Braithan Stoltenberg, Robert McEwen, Karlson Manasan, and Jimmy Robnett also arrived on the scene to assist.
Morgan Anderson, a private paramedic employed by American Ambulance, directed the officers to assist him in attaching the transport board to Perez’s back, and asked them to sit on top of the backboard while Perez was held, face-down, in the prone position.
Perez shouted that he could not breathe, but Calvert sat on the board atop his back for one minute and thirteen seconds while other officers applied pressure and worked with Anderson to secure the backboard. Once they were able to turn Perez over, they discovered that he had died.
Perez’s family members sued the individual officers and Anderson under 42 U.S.C. §1983 for violations of the Fourth and Fourteenth Amendments and the city and county for municipal liability based on a failure-to-train theory.
Similar Case Distinguished
Forrest noted that qualified immunity shields police officers from §1983 liability unless they are found to have violated a federal statutory or constitutional right and their conduct was in violation of a clearly established law at the time it was committed. The officers did not dispute that a reasonable jury could find that they acted in violation of the Fourth and Fourteenth Amendments.
Forrest opined:
“[Q]ualified immunity hinges on whether the unlawfulness of these actions, taken at the direction of medical personnel, was clearly established when Perez died.”
The plaintiffs argued that the 2003 Ninth Circuit case of Drummond v. City of Anaheim—holding that qualified immunity does not shield officers who should have known that placing their body weight on the back and neck of a mentally ill person in order to restrain him was excessive force—clearly established that the officers’ actions in this case violated the Constitution.
Forrest acknowledged that the facts of the Drummond case are “disturbingly similar” to the case at hand but concluded that the fact that the officers in this case acted at the direction of medical personnel distinguishes the incident in question. She wrote:
“Given the specific context of this case, we cannot conclude that Drummond put the officers on fair notice that their actions—pressing on a backboard on top of a prone individual being restrained for medical transport, at the direction of a paramedic working to provide medical care—was unlawful.”
She also rejected the plaintiffs’ argument that the officers’ conduct was so obviously unconstitutional as to foreclose qualified immunity despite a finding that their behavior did not violate any clearly established law. The jurist said:
“A paramedic concluded that Perez needed to be restrained so that he could be transported to a hospital and directed the officers involved to help attach Perez to a backboard while he was laying prone, including by sitting on the backboard. Under the circumstances, it was not obvious that applying the backboard in this manner—as directed by a medical professional trained to respond in emergency situations—would violate the Constitution.”
Forrest was not persuaded that qualified immunity failed due to a departure from the officers’ training. She explained:
“While Plaintiffs present evidence that both [police agencies] train their officers not to leave an individual laying on his stomach once secured, Plaintiffs do not point to any policy prohibiting such restraint to facilitate medical treatment. In fact, four of the seven officers involved in the incident testified that they are trained to defer to paramedics on issues of treatment and transport when they assist in an emergency.”
Paramedic Liability
Forrest found that qualified immunity extends to Anderson as he was acting in his capacity as a medical professional. She noted that other circuit courts have found that if a paramedic was acting in a law-enforcement capacity, rather than in a medical-care capacity, their conduct may be protected by qualified immunity.
She disagreed with plaintiffs’ contention that “Anderson’s actions do not constitute medical care at all because he caused Perez’s death,” reasoning:
“In the over 15-minute video of the incident, there is no indication from Anderson, or any of the officers, that Perez was ever restrained so that he could be arrested or punished. Rather, the comments of all involved during the incident were focused on Perez’s agitated state and trying calm him down so that he could be transported for treatment.”
Thomas’ Dissent
Thomas said he concurs “in the majority’s analysis of the paramedic liability and failure-to-train claims, and join in affirming the district court’s grant of summary judgment for Anderson,” as well as the paramedic company and the police agencies.
However, he disagreed as to qualified immunity protections for the individual officers. Finding Drummond to be applicable, Thomas wrote:
“Drummond and its progeny provide law enforcement with notice of a common-sense rule: it is unconstitutional to place prolonged body weight force on the back of prone and unarmed individual who cannot meaningfully resist….The law is especially clear where, as here, the prone individual verbally communicates that he cannot breathe.”
The case is Perez v. City of Fresno, 22-15546.
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