                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 20 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DANIELLA SLATER; et al.,                        No.    17-56708

                Plaintiffs-Appellants,          D.C. No.
                                                5:16-cv-01103-JFW-KK
 v.

SHANNON DEASEY, Deputy; et al.,                 MEMORANDUM*

                Defendants-Appellees.


DANIELLA SLATER; et al.,                        No.    17-56751

                Plaintiffs-Appellees,           D.C. No.
                                                5:16-cv-01103-JFW-KK
 v.

SHANNON DEASEY, Deputy; et al.,

                Defendants-Appellants.

                   Appeal from the United States District Court
                      for the Central District of California
                    John F. Walter, District Judge, Presiding

                       Argued and Submitted May 13, 2019
                              Pasadena, California

Before: NGUYEN and OWENS, Circuit Judges, and ANTOON,** District Judge.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       Joseph Slater passed away on April 15, 2015, during an arrest by Sheriff’s

deputies of the County of San Bernardino. Plaintiffs, the children and parents of

Slater, contend that Slater died from positional asphyxiation due to pressure

applied to his body while he was restrained and on his stomach. They filed suit

against the deputies pursuant to 42 U.S.C. § 1983, asserting that the deputies

violated the Fourth Amendment by using excessive force during the arrest. The

district court granted summary judgment to the deputies and County of San

Bernardino, concluding that although the force used during part of the encounter

was excessive when viewing the facts in the light most favorable to the Plaintiffs,

the deputies were nevertheless entitled to qualified immunity. The Plaintiffs

appeal the district court’s grant of qualified immunity to the deputies.1 We have

jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand

for trial.

       Slater, who was known to the deputies from prior contacts as mentally ill

with a history of drug addiction, was allegedly pulling wires out of a gas station

building.2 Deputy Deasey responded to the scene and recognized that Slater was



       **
             The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
      1
             Defendants cross-appeal the district court’s conclusion that their
application of the second and third hobbles violated the Fourth Amendment.
      2
             Nearby security cameras captured most of the incident.

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on drugs. He placed Slater under arrest, handcuffed him without resistance, and

attempted to place him in the back of a patrol car with the intention of taking him

to the hospital for psychiatric care. Slater was initially compliant, but before he

was completely in the patrol car, he became agitated and fearful, telling Deputy

Deasey several times, “You’re not a cop, sir,” and, “You’re going to kill me.”

After Slater failed to comply with Deputy Deasey’s repeated orders to slide into

the car, the deputy deployed three pepper sprays at Slater after warning that he

would do so. Slater reacted by moving around and yelling things like, “You’re

blinding me.” Although the parties dispute how it happened, Slater ended up on

the ground with Deputy Deasey using his body weight to restrain Slater. Other

deputies who had responded to the scene, Gentry and Rude, assisted Deasey in

applying a hobble restraint to Slater’s ankles, connecting it to his handcuffs from

the back. Due to the slack in the hobble, Slater was able to sit on his own, and he

did so without further resistance. Under these circumstances, the district court

found that the application of this first hobble did not constitute excessive force.

We agree and affirm the district court’s conclusion.

      After attempting to wash pepper spray off Slater, the deputies carried him to

the patrol car and slid him onto the back seat on his stomach, but Slater was able to

partially slide out of the open car door on the other side. The deputies pushed him

back onto the seat and applied second and third hobbles to hogtie Slater—the


                                           3
second hobble to bind his feet and hands more tightly together, and the third

hobble to secure him to the car. While the second and third hobbles were applied,

Slater remained on his chest and stomach. The officers admitted placing some

pressure on Slater’s ribs and shoulder during the application of the second and

third hobbles. The autopsy showed extensive bruising that Plaintiffs argue is

consistent with pressure to Slater’s shoulders and back. At some point, the

deputies realized that Slater was no longer moving. Fire Department paramedics

were already on the scene because Deasey had called for them before applying the

first hobble. The deputies removed Slater from the car and the paramedics

immediately began to treat him. They transported him to the hospital, but despite

medical personnel’s attempts to revive him, Slater passed away.

      The district court found that the application of the second and third hobbles

constituted excessive force under the Fourth Amendment, but that the deputies

were entitled to qualified immunity because their actions did not violate clearly

established law. We agree that the force was excessive, but viewing the facts in

the light most favorable to Plaintiffs, see Bravo v. City of Santa Maria, 665 F.3d

1076, 1083 (9th Cir. 2011), we conclude that Defendants are not entitled to

qualified immunity.

      When reviewing qualified immunity determinations made at the summary

judgment stage, we must consider (1) whether “[t]aken in the light most favorable


                                          4
to the party asserting the injury the facts alleged show the officer’s conduct

violated a constitutional right,” Saucier v. Katz, 533 U.S. 194, 201 (2001) (ellipsis

omitted), and (2) “‘whether the right was clearly established in light of the specific

context of the case’ such that ‘it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.’” Drummond ex rel.

Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003) (ellipsis

omitted) (quoting Headwaters Forest Def. v. County of Humboldt, 276 F.3d 1125,

1129 (9th Cir. 2002)); see also Pearson v. Callahan, 555 U.S. 223, 236 (2009).

Defendants bear the burden of proving they are entitled to qualified immunity. See

Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005).

      Fourth Amendment excessive force claims require courts to balance “the

nature and quality of the intrusion” with the “countervailing governmental interests

at stake” to evaluate the objective reasonableness of the force in context. Graham

v. Connor, 490 U.S. 386, 396 (1989). Further, “a detainee’s mental illness” is a

factor bearing on the government’s interest. Drummond, 343 F.3d at 1058

(discussing Deorle v. Rutherford, 272 F.3d 1272, 1282–83 (9th Cir. 2001)). We

therefore agree with the district court that the force used in applying the second

and third hobbles was excessive.

      But we do not agree with the district court’s conclusion on the second prong

of the qualified immunity analysis—whether “it would be clear to a reasonable


                                           5
officer that his conduct was unlawful in the situation he confronted.” Drummond,

343 F.3d at 1056 (quoting Headwaters, 276 F.3d at 1129). Drummond provides

“fair warning” to Defendants that their alleged actions were unconstitutional. 343

F.3d at 1060–61. In 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.” Id. at 1059; see also id. at 1059–62. There,

officers placed body weight on the arrestee’s back and neck while he was

handcuffed and lying on his stomach. Id. at 1059. Here, viewing the evidence in

the light most favorable to Plaintiffs, Slater was hogtied and placed on his stomach

in the back of the police car, and the deputies applied pressure to his body during

the second and third hobbling, after pressure was already applied to his shoulders

in the prone position during the first hobbling. Deputy Gentry testified that he

placed pressure on Slater’s left rib area with his knee while applying the second

hobble. Deputy Brandt, who arrived after the application of the first hobble, and

who was positioned on the driver’s side of the car, testified that he put his foot

against Slater’s shoulder to prevent Slater from sliding out of the car. We conclude

that the circumstances here are sufficiently analogous to Drummond such that

Defendants were on notice that their use of force violated the Fourth Amendment.

      We therefore reverse the district court’s grant of qualified immunity as to the

use of the second and third hobbles. We also vacate the district court’s dismissal


                                           6
of the Plaintiffs’ Fourteenth Amendment familial association claim because the

Defendants do not argue and have therefore waived any argument that the facts

here would not show deliberate indifference or shock the conscience.3 See

Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010).

      We affirm the grant of summary judgment as to the Fourth Amendment and

Fourteenth Amendment claims for denial of medical care, given Deasey’s call for

medical personnel to stand by and Slater’s immediate treatment.

      AFFIRMED in part, REVERSED in part, and REMANDED.




      3
             We also vacate the dismissal of the Plaintiffs’ state law assault,
battery, and wrongful death by negligence in force and restraint claims in light of
this decision.


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