Efforts to Couch Discovery Contest as Immunity Review Fail

Friday, August 21, 2026

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Ninth Circuit:

Efforts to Couch Discovery Contest as Immunity Review Fail

Opinion Says Officers Facing Excessive Force Claims May Not Immediately Challenge Judge’s Decision Not to Exclude Statement as Sanction for Late Disclosure by Framing Appeal as One From Denial of Liability Shield

By Kimber Cooley, associate editor

The Ninth U.S. Circuit Court of Appeals yesterday dismissed an appeal over an order that denied qualified immunity to Azusa Police Department officers who were accused of an exercise of excessive force that purportedly left a suspect in a persistent vegetative state, saying the crux of the challenge was actually about whether the judge rightly declined to exclude a witness statement as a sanction for late disclosure and not the liability-shield question.

Circuit Judge Eric D. Miller authored yesterday’s opinion, acknowledging case law establishing that a party may immediately appeal an order that denies them qualified immunity at the summary judgment stage because the shield operates as a bar to legal action rather than a defense to liability. However, he opined:

“But under the Supreme Court’s [1995] decision in Johnson v. Jones, we may not review ‘a portion of a district court’s summary judgment order that, though entered in a qualified immunity case, determines only a question of evidence sufficiency, i.e., which facts a party may, or may not, be able to prove at trial.’…As we have recently summarized the rule…, a ‘public official may not immediately appeal a fact-related dispute about the pretrial record, namely, whether or not the evidence in the pretrial record was sufficient to show a genuine issue of fact for trial.’ ”

He said that, while the distinction is often elusive, “in this case…it is not difficult at all” and declared:

“Defendants make no argument about what inferences should be drawn from the facts before the district court that does not first assume that [the] declaration should have been excluded. Crucially, they do not argue that, if [the] declaration is included as part of the summary-judgment record, they are nevertheless entitled to qualified immunity on the excessive-force claim.”

Acting Erratically

The dispute erupted after Azusa Police Officers Benjamin Cypher, V. Garcia, Richard Martinez, Steven D. Sears, Michael DeAnda, Michael Wise, and Zachary Chadwick responded to a call indicating that a man was acting erratically outside an apartment complex in July 2021. The first to arrive observed Rios pacing and repeating the phrase, “bang, bang, shots fired,” while making the shape of a gun with his hand.

Although no-one saw him with an actual weapon, they ordered him to the ground and approached him to take him into custody. The nature of the interaction that followed is disputed but the parties agree that in the course of attempting to handcuff the suspect, officers repeatedly punched, kicked or struck him.

Rios was transported to the hospital and suffered serious brain damage after the incident. In June 2022, Rios, by and through his guardian ad litem and romantic partner Brenda Ceja, together with the couple’s two children, filed a complaint against the city and the officers, asserting constitutional claims under 42 U.S.C. §1983 among other causes of action.

During discovery, the plaintiffs discovered that a resident of the apartment complex, Michael Brown, had filed a pro se complaint against the Azusa Police Department over allegations of excessive force in an unrelated incident. Their attorney promptly interviewed Brown and, during the conversation, realized that Brown had previously been cited as a witness to the incident involving Rios but had declined to provide any information.

Declaration Provided

Brown expressed a willingness to cooperate after having time to think things over and eventually provided a declaration indicating that Rios had not entered into a “fighting stance or threat” during the encounter and was in the process of laying down to comply with orders when the officers began beating him.

In 2024, the officers moved for summary judgment, asserting qualified immunity, and the plaintiffs opposed, attaching Brown’s declaration. The defendants then requested that the court strike Brown’s declaration as a discovery sanction under Federal Rule of Civil Procedure 37(c)(1), arguing that the timing of the disclosure of the declarant as a witness did not comply with the law.

On Sept. 6, 2024, District Court Judge Wesley L. Hsu of the Central District of California denied the motion to strike and granted a continuance of the discovery deadline to allow the defendants to depose the new witness. Hsu also denied the request for summary judgment, saying, as to the excessive force claim:

“[I]t was clearly established well before July of 2021 that tackling a non-threatening suspect without first attempting less violent means of arrest is unconstitutional.”

Crux of Argument

Miller wrote:

“Defendants appeal. The crux of their argument is that the district court abused its discretion in denying their motion to strike Brown’s declaration. In their view, because Brown’s declaration ‘was the only evidence relied upon by the district court to find a genuine dispute of facts,’ the district court erred in denying summary judgment.”

Saying that “[t]hat argument is not properly before us,” he opined:

“[D]efendants’ argument is about which facts were properly before the district court—specifically, whether the facts set out in the Brown declaration should have been part of the summary-judgment record, or whether the district court should instead have excluded that declaration as a discovery sanction. That is a question about evidence sufficiency that we may not review in an interlocutory appeal. We thus lack jurisdiction to review the district court’s denial of qualified immunity.”

He continued:

“In an effort to avoid Johnson, defendants frame their argument not as one of evidence sufficiency but instead as raising the question whether the district court abused its discretion in denying their motion to strike the Brown declaration under Rule 37. That framing runs into a different problem: Discovery rulings are not ‘final decisions’ and therefore are not immediately appealable.”

Pendent Jurisdiction

As to a request asking the court to invoke pendent appellate jurisdiction over the Rule 37 ruling because it is inextricably intertwined with the denial of qualified immunity, he remarked:

“As they put it, an appellate court ‘can only conduct a meaningful review if it knows what evidence was properly within the district court’s purview when it ruled on the summary judgment motion.’ But because we lack jurisdiction to review the denial of qualified immunity, there is ‘no appealable claim on which a pendent claim could attach.’ ”

The jurist added:

“[E]ven if the order denying qualified immunity were appealable, qualified immunity could be available only to the individual defendants, and only with respect to the claims under section 1983. Defendants also seek to appeal the remaining claims in the case, asserting that pendent appellate jurisdiction allows interlocutory review of the denial of summary judgment on those claims in conjunction with the qualified-immunity appeal. But because there is no proper appeal of the denial of qualified immunity, there is no appeal to which the other claims can be pendent.”

Miller declared:

“We therefore dismiss the appeal in its entirety.”

Senior Circuit Judges Marsha S. Berzon and N. Randy Smith joined in the decision.

The case is Rios v. City of Azusa, 24-5734.