                                                                              FILED
                            NOT FOR PUBLICATION                               DEC 12 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MARIA SANDOVAL, personally and on                No. 10-55733
behalf of The Estate of Victor Sandoval,
                                                 D.C. No. 2:09-cv-03428-PSG-SS
              Plaintiff - Appellee,
    v.
                                                 MEMORANDUM*
PETER HISH; GORDON BAKER;
ERNEST FERREAS; GERARD
VELONA, in their personal capacities,

              Defendants - Appellants,

_______________________________,

  and

LOS ANGELES COUNTY SHERIFF’S
DEPARTMENT; COUNTY OF LOS
ANGELES; JOE PURCELL, Sergeant;
TADASHI HIRAOKE; JEFFREY KOCH;
EDWIN ALVAREZ; MICHAEL
DOWNING; ROBERT KENNY, in their
personal and official capacities,

              Defendants.


                   Appeal from the United States District Court


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                     Argued and Submitted November 10, 2011
                               Pasadena, California

Before: SCHROEDER and REINHARDT, Circuit Judges, and HUDSON, District
Judge.**

      Defendants-Appellants are individual law enforcement officers for the

County of Los Angeles who appeal the district court’s denial of their motion for

summary judgment on the basis of qualified immunity. Plaintiff-Appellee, Maria

Sandoval, brought an action on behalf of herself and the Estate of Victor Sandoval,

the decedent, pursuant to 42 U.S.C. § 1983. Victor Sandoval, a mentally ill

individual, died as a result of positional asphyxia associated with restraint after

Defendants used pepper spray and physical restraints to purportedly subdue him.

The material facts were disputed, and the district court ruled that if the jury

accepted Plaintiff’s version of events, Defendants violated the decedent’s clearly

established right to be free from excessive force.

      Contrary to Defendants’ suggestion, all of the facts relied upon by the

district court and in the Plaintiff’s appellate brief are supported by evidence in the

district court record. The district court, for purposes of considering immunity,

       **
             The Honorable Henry E. Hudson, United States District Judge for the
Eastern District of Virginia, sitting by designation.

                                           2
properly assumed that Plaintiff’s version of events was correct. Jeffers v. Gomez,

267 F.3d 895, 903 (9th Cir. 2001). Given that assumption, Defendants’ use of

pepper spray and physical force to restrain the decedent was objectively

unreasonable, because Defendants knew that the decedent was mentally ill, that he

had committed no crime, and that he did not pose any threat to the safety of

Defendants or others. See Drummond ex rel. Drummond v. City of Anaheim, 343

F.3d 1052, 1059–60 (9th Cir. 2003). The use of pepper spray in such

circumstances would have violated the decedent’s constitutional right to be free

from excessive force, which was clearly established as of several years before the

incident in question. See Young v. County of Los Angeles, 655 F.3d 1156, 1167–68

(9th Cir. 2011). The use of physical restraints, moreover, also would have violated

the decedent’s clearly established right to be free from excessive force at the time

of the incident. See Drummond, 343 F.3d at 1061–62; see also Motley v. Parks,

432 F.3d 1072, 1088 (9th Cir. 2005). Defendants, therefore, were not entitled to

qualified immunity.

      AFFIRMED.




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