On April 15, 2024, the Federal Court of Appeals for the Ninth Circuit affirmed the decision of the district court that gave Fresno, California officers and a paramedic qualified immunity in connection with the death of Joseph Perez. [1]
According to the court, Fresno (FPD) police officers observed Perez “standing in the roadway, waving his arms, and yelling what sounded like ‘help’ in their direction. … [H]e was talking to himself, stating that people were chasing and hitting him. … [T]he officers believed that he was under the influence of a controlled substance. According to the officers, to prevent Perez from darting into traffic on the four-lane roadway or charging at the officers near the roadway, they seated Perez on the curb and placed him in handcuffs.”
Fresno County Sheriff’s officers (FCSO) responded and “found Perez seated, handcuffed, and surrounded by the FPD officers.” Perez stood up and refused commands to be seated. Officers forced him to the ground on his stomach. While on the ground, Perez continued to struggle and resist attempts to control him.
An FPD officer called for emergency medical services (EMS) to assist in executing a statutory involuntary psychiatric detention. [2]
According to the court, “When EMS arrived, the paramedics retrieved a backboard. Paramedic Morgan Anderson stated that they were going to attach Perez to the board while he was prone so that he could be medically transported. The officers … assisted the paramedics in applying the backboard. … Perez yelled that he could not breathe. Anderson nevertheless told one of the officers to sit on the backboard.”
An officer sat on top of the board for over a minute. “[O]ther officers applied pressure and worked with Anderson to secure the backboard.” Once secured to the backboard, EMS discovered that Perez did not have a pulse. He was declared dead after transportation to the hospital. The coroner determined the cause of death to be compression asphyxia during restraint and methamphetamine toxicity. [3]
Perez’s family sued the involved officers and Paramedic Anderson pursuant to 42 U.S.C. § 1983 for alleged Fourth and Fourteenth Amendment violations. [4] The district court judge determined that a reasonable jury “could find that the officers violated the Fourth and Fourteenth Amendment by applying pressure to the backboard while Perez was prone.” However, he ruled that the officers were entitled to qualified immunity because they did not violate clearly established law at the time of the incident. The court also granted Anderson qualified immunity because he did not violate clearly established law.
The Ninth Circuit’s opinion
The Ninth Circuit affirmed the lower court decision. The court began by stating, “The officers do not dispute the district court’s conclusion that a reasonable jury could find that they violated the Fourth and Fourteenth Amendments by applying pressure to the backboard while Perez was in a prone position and thereafter ignoring his statement that he could not breathe.” Nonetheless, the court ruled that existing law at the time of this incident did not put the officers on notice, “that … 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 [clearly established as] unlawful.” The court granted the officers qualified immunity.
Likewise, the court ruled that paramedic Anderson was also entitled to qualified immunity because existing law at the time of the incident did not clearly establish that his conduct was unlawful. The court explained that Anderson was acting in a medical capacity and “There is no precedent imposing constitutional tort liability on a paramedic who attempts to render emergency medical aid to a patient by restraining him in preparation for a medical transport.”
Conclusion
The officers were victorious in the dismissal of the lawsuit, not because their conduct was found to be within constitutional boundaries but because the district court and two of the appellate judges determined that existing law did not give them fair notice that their conduct was unconstitutional. [5] In fact, the opinions of the four involved judges indicated, directly or by inference that the officers’ conduct violated the Constitution.
Going forward, officers receiving direction from a paramedic to apply force and pressure to a prone person’s upper torso should be very cautious and hesitant to implement the request. This case will now serve as notice to future officers in the Ninth Circuit and other federal circuits as well, that following the direction of a paramedic to apply pressure in the described manner may result in a finding of unconstitutional conduct and a denial of qualified immunity if the subject is injured or dies as a result. [6]
Further solidifying the above guidance for officers to be extremely careful in applying prolonged pressure to a grounded person’s upper back, is a brand new Ninth Circuit opinion in the matter of Scott v. Smith. [7] Scott called the Las Vegas Metropolitan Police Department for help because he was in mental distress. Two officers responded and found him to be in mental difficulty and in possession of a metal pipe at his side. He immediately dropped the pipe upon request and voluntarily handed over a knife to the officers from his pocket.
According to the court, “Though he complied with the officers’ orders and was not suspected of a crime, [the officers] initiated physical contact, forced Scott to the ground, and used bodyweight force to restrain him [on his stomach for one to two minutes]. Shortly after, Scott lost consciousness and he was later pronounced dead. Scott’s daughter and a representative of Scott’s estate sued the officers and the Department for violating their constitutional rights, including the Fourth Amendment right to be free from excessive force.” [7]
The Ninth Circuit ruled in favor of Scott’s estate, affirmed the denial of qualified immunity for the involved officers, and ruled that a reasonable jury could find that the officers violated clearly established Fourth Amendment law by using excessive force.
References
1. Perez v. City of Fresno, (No. 22-15546) (9th Cir.,2024).
2. California Welf & Inst. Code § 5150.
3. In a footnote the court observed, “According to the coroner, the average lethal dose of methamphetamine is 200 nanograms per milliliter. Perez had ten times that amount in his bloodstream.”
4. The City of Fresno and the County were sued as well for alleged failure to train officers. The failure to train allegations were found by the court to be insufficient and were dismissed.
5. The dissenting judge disagreed with the two-judge majority and believed that existing law clearly established that the officers conduct violated the Constitution.
6. Officers should be extremely careful in applying prolonged force and pressure to the back and upper torso of a prone subject. There are numerous federal appellate opinions in which qualified immunity was denied to officers when such pressure was applied after a subject was subdued. See, e.g. Drummond v. City of Anaheim, 343 F.3d 1052, 1061 (9th Cir. 2003). See also, McCue v. City of Bangor, Maine, 838 F.3d 55, 64–65 (1st Cir. 2016); Rogoz v. City of Hartford, 796 F.3d 236, 247–48 (2d Cir. 2015); Weigel v. Broad, 544 F.3d 1143, 1155 (10th Cir. 2008); Abdullahi v. City of Madison, 423 F.3d 763, 775 (7th Cir. 2005); Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004); Bornstad v. Honey Brook Twp., 211 F. App’x 118, 124 (3d Cir. 2007) (mem.).
7. Scott v. Smith, (No. 23-15480), (9th Cir. 7/30/2024).
