Qualified Immunity / Excessive Force

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Case: 23-15480, 07/30/2024, ID: 12899420, DktEntry: 36-1, Page 1 of 24 

FOR PUBLICATION 

UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

ROCHELLE SCOTT, individually,  and as co-special administrator of the  estate of ROY ANTHONY SCOTT;  FREDRICK WAID, as co-special  administrator of the estate of ROY  ANTHONY SCOTT,  

Plaintiffs-Appellees,  

KYLE SMITH; THEODORE  HUNTSMAN; LAS VEGAS  METROPOLITAN POLICE  DEPARTMENT,  

Defendants-Appellants. 

No.23-15480  

D.C. No.  

2:20-cv-01872- RFB-EJY  

OPINION 

Appeal from the United States District Court for the District of Nevada 

Richard F. Boulware II, District Judge, Presiding 

Argued and Submitted May 13, 2024 Phoenix, Arizona 

Filed July 30, 2024 

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Case: 23-15480, 07/30/2024, ID: 12899420, DktEntry: 36-1, Page 2 of 24 2 SCOTT V. SMITH 

Before: Roopali H. Desai and Ana de Alba, Circuit Judges,  

and Philip S. Gutierrez,* District Judge. 

Opinion by Judge Desai  

SUMMARY** 

Qualified Immunity / Excessive Force 

The panel affirmed the district court’s denial of qualified  

immunity to Las Vegas Metropolitan Police Department  

officers on a Fourth Amendment claim for violation of the  

right to be free from excessive force, and reversed the district  

court’s denial of qualified immunity on a Fourteenth  

Amendment claim for violation of the right to familial  

association. 

Roy Scott, who was unarmed and in mental distress,  

called the police for help. Officers used force to restrain  

him, although he complied with officers’ orders and was not  

suspected of a crime, and shortly after lost consciousness and  

was later pronounced dead. Scott’s daughter Rochelle and a  

representative of Scott’s estate sued the Department and two  

officers. 

The panel affirmed the district court’s denial of qualified  

immunity on plaintiffs’ Fourth Amendment claim. Viewing  

* The Honorable Philip S. Gutierrez, United States District Judge for the  

Central District of California, sitting by designation. 

** This summary constitutes no part of the opinion of the court. It has  

been prepared by court staff for the convenience of the reader. 

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the facts in the light most favorable to plaintiffs, the officers  

violated Scott’s Fourth Amendment right to be free from  

excessive force. Because Scott was mentally ill, was not  

suspected of a crime, and did not present a risk to officers or  

others, the government’s interest in applying force was  

limited. A reasonable jury could find that the officers’ use  

of severe or deadly force was constitutionally  

excessive. The panel further held that Scott’s Fourth  

Amendment rights were clearly established at the time of the  

violation. Drummond ex rel. v. Drummond v. City of  

Anaheim, 343 F.3d 1052 (9th Cir. 2003), clearly established  that the officers’ use of force was constitutionally excessive. 

The panel reversed the district court’s denial of qualified  

immunity on Rochelle’s Fourteenth Amendment  

claim. Viewing the facts in the light most favorable to  

plaintiffs, the officers violated Rochelle’s right to familial  

association. However, because that right was not clearly  

established at the time of the officers’ conduct, the officers  

were entitled to qualified immunity. 

COUNSEL 

Peter Goldstein (argued), Law Offices of Peter Goldstein,  

Las Vegas, Nevada, for Plaintiffs-Appellees. 

Craig R. Anderson (argued), Marquis Aurbach Coffing, Las  

Vegas, Nevada, for Defendants-Appellants.  

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OPINION 

DESAI, Circuit Judge: 

Early in the morning on March 3, 2019, Roy Scott called  

the police for help. But he did not get it. Las Vegas  

Metropolitan Police Department Officers Kyle Smith and  

Theodore Huntsman came to the scene. Scott was unarmed  

and in mental distress. Though he complied with the  

officers’ orders and was not suspected of a crime, Smith and  

Huntsman initiated physical contact, forced Scott to the  

ground, and used bodyweight force to restrain him. 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 and the Fourteenth  

Amendment right to familial association.  

Officers Smith and Huntsman appeal the district court’s  

order denying summary judgment on the basis of qualified  

immunity. We hold that, construing the facts in the light  

most favorable to Plaintiffs, Smith and Huntsman violated  

Scott’s Fourth Amendment rights. Because the applicable  

law was clearly established at the time of the incident, we  

affirm the denial of qualified immunity for Plaintiffs’ Fourth  

Amendment claim. As to Rochelle Scott’s Fourteenth  

Amendment claim, we hold that Officers Smith and  

Huntsman violated Rochelle Scott’s Fourteenth Amendment  

right to familial association, but that right was not yet  

“clearly established” at the time of the violation. We thus  

affirm in part and reverse and remand in part.  

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Case: 23-15480, 07/30/2024, ID: 12899420, DktEntry: 36-1, Page 5 of 24 SCOTT V. SMITH 5 

BACKGROUND 

Early in the morning on March 3, 2019, Roy Scott called  

911.1 He reported multiple assailants outside his apartment 

with a saw. Las Vegas Metropolitan Police Department  

Officers Smith and Huntsman were assigned to the call. 

Dispatch notified the officers that Scott was mentally ill. 

Scott was distressed and hallucinating when Officers  

Smith and Huntsman arrived at his apartment. After Smith  

and Huntsman knocked and identified themselves, Scott  

yelled to the officers to “break the door down” claiming that  

there were people inside his house. The officers did not  

break the door in because they did not hear anyone inside the  

apartment. Instead, they continued to knock and order Scott  

to come to the door. About two minutes after first knocking  

on the door, Smith told Huntsman, “this is a 421A for sure,”  

using the department code to indicate he believed Scott was  

mentally ill. Huntsman then called through the door: “Sir,  

have you been diagnosed with any mental diseases?” After  

Scott did not come to the door, Smith asked dispatch to call  

Scott back to ask him to come to the door, noting again that  

Scott appeared to be mentally ill. Smith then said to  

Huntsman: “I ain’t going in there. That’s too sketchy.” 

Huntsman agreed, “That dude’s wacky.” Peering into Scott’s  

window, Huntsman asked Smith if he could see the “crazed  

look in [Scott’s] eye.” They could not see anyone else in  

Scott’s apartment. 

When Scott did not open the door, Smith called their  

sergeant, turning off his body worn camera. On Huntsman’s  

1 This is an interlocutory appeal challenging the denial of qualified  

immunity. As we recount the facts here, we thus resolve all disputed  

factual issues in Plaintiffs’ favor. See Est. of Anderson v. Marsh, 985  

F.3d 726, 731 (9th Cir. 2021). 

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camera, Smith can be heard telling their sergeant that Scott  

sounds mentally ill. After ending the call, Smith told  

Huntsman that their sergeant said that “at the end of the day  

we can’t do anything if we don’t hear any reason to have an 

exigent circumstance.” Smith also explained that their  

Sergeant suggested they try again to get Scott to come to the  

door. Smith resumed knocking and ordered Scott to come to  

the door. Seconds later, and about seven minutes after Smith  

and Huntsman arrived on the scene, Scott opened the door.  

As Scott opened the door, Smith retreated down the stairs  

in front of Scott’s apartment. Scott held a metal pipe at his  

side as he descended the stairs. He immediately dropped the  

pipe when officers asked him to do so. Disoriented, Scott  

asked the officers twice: “What am I supposed to do?” Smith  

and Huntsman directed him to stand near a wall at the base  

of the stairs, and Scott immediately complied. When  

Huntsman asked Scott if he had any other weapons, Scott  

produced a knife from his front pocket and said, “I am  

sorry.” He handed the knife to Huntsman handle-side out and  

did not make any threatening gestures.  

Smith and Huntsman ordered Scott to face the wall,  

shining a flashlight at him. Scott told them that the light  

bothered him and that he had paranoid schizophrenia. He  

asked twice: “Can you just put me in the car please?” When  

asked about the weapons he had relinquished, Scott  

explained, “I think people are after me.” Smith again  

directed Scott to face the wall, and Scott replied, “I’m  

paranoid, I can’t turn around.” Smith told Scott, “You’re  

fine. We are out here to help you.” Scott repeatedly  

responded, “I’m not fine.” Although they did not discuss it,  

officers allege they recognized Scott was in “some sort of 

distress” and concluded he met the qualifications for a  

medical hold for his mental health and safety.  

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Smith and Huntsman approached Scott and grabbed his  

arms. Scott repeatedly pleaded “please” and “what are you  

doing” in a distressed voice, while Smith and Huntsman  

pulled him to the ground. At first, the officers held Scott’s 

arms at his sides while he was lying on his back. In this  

position, Scott screamed, struggled, and pled with the  

officers to leave him alone for over two minutes. The  

officers then eventually rolled Scott onto his stomach,  

repeatedly ordering Scott to “stop.” With Scott on his  

stomach and with his hands restrained behind his back,  

Huntsman put his bodyweight on Scott’s back and neck for  

about one to two minutes. At the same time Smith put his  

weight on Scott’s legs, restraining his lower body. Scott’s  

pleas turned increasingly incoherent and breathless as  

Huntsman applied his bodyweight.  

After handcuffing him, the officers attempted to roll  

Scott on his side, as he continued to incoherently cry out that  

he wanted to be left alone. When they rolled Scott over, his  

face was bloody from contact with the ground. Scott stopped  

yelling and thrashing around after a few minutes. Scott did  

not respond when Smith and Huntsman tried to wake or  

revive him. Shortly after, when the paramedics arrived, Scott  

was still unresponsive. Scott was pronounced dead after  

paramedics removed him from the scene. Plaintiffs’ expert  

found that Scott had died from restraint asphyxia.  

Rochelle Scott (Scott’s daughter and co-special  

administrator of his estate) and Fredrick Waid (co-special  

administrator of Scott’s estate) sued Officer Smith, Officer  

Huntsman, and the Department. They alleged claims under  

42 U.S.C. § 1983 for violation of Scott’s Fourth Amendment  

right to be free from excessive force and Rochelle Scott’s  

Fourteenth Amendment right to familial association, among  

other claims. Defendants Smith and Huntsman moved for  

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summary judgment, arguing in part that no constitutional  

violation occurred and that they were entitled to qualified  

immunity. 

The district court granted in part and denied in part  

Defendants’ motion for summary judgment. Relevant here,  

the district court denied qualified immunity to Smith and  

Huntsman on Plaintiffs’ Fourth Amendment claim and on  

Rochelle Scott’s Fourteenth Amendment claim. Smith and  

Huntsman timely appealed. 

JURISDICTION 

As a threshold matter, we address our jurisdiction to hear  

this interlocutory appeal. A denial of summary judgment is  

not ordinarily appealable because it is not a “final decision.”  

See 28 U.S.C. § 1291; Ballou v. McElvain, 29 F.4th 413, 421  

(9th Cir. 2022). But we may “review orders denying  

qualified immunity under the collateral order exception to  

finality.” Ballou, 29 F.4th at 421. The scope of our 

jurisdiction is “circumscribed.” George v. Morris, 736 F.3d  829, 834 (9th Cir. 2013). We cannot consider “a fact-related  

dispute” over whether the evidence is “sufficient to show a  

genuine issue of fact for trial.” Est. of Anderson, 985 F.3d at 

731 (quoting Foster v. City of Indio, 908 F.3d 1204, 1210  

(9th Cir. 2018)). But we may decide “whether the defendant  

would be entitled to qualified immunity as a matter of law,  

assuming all factual disputes are resolved, and all reasonable  

inferences are drawn, in plaintiff’s favor.” George, 736 F.3d  

at 836 (quoting Karl v. City of Mountlake Terrace, 678 F.3d  

1062, 1068 (9th Cir. 2012)) (cleaned up). In other words, we 

have jurisdiction when defendants are not asking us “to re 

decide the facts, but rather, to reapply the law.” Moran v.  

Washington, 147 F.3d 839, 844 (9th Cir. 1998).  

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Smith and Huntsman devote much of their briefing to  

their version of events that Scott disputes. But here, the  

district court denied the officers’ request for qualified  

immunity because the record presents multiple genuine  

issues of fact. Those include whether Scott tried to reach for  

his jacket pocket before falling to the ground, whether Scott  

voluntarily fell to the ground or was forced to the ground in  

a takedown maneuver, how long Scott was in a facedown  

position on the ground, how long Officer Huntsman had his  

knee on Scott’s back and neck, the timing of Scott’s  

handcuffing, and the cause of Scott’s death. We must accept  

these findings unless Plaintiffs’ “version of events is  

‘blatantly contradicted by the record.’” Orn v. City of  

Tacoma, 949 F.3d 1167, 1171 (9th Cir. 2020) (quoting Scott  

1. Harris, 550 U.S. 372, 380 (2007)). In short, we cannot 

credit Defendants’ version of the facts or “assume that a jury  

would resolve factual disputes in [their] favor.” Id. Thus, 

though we lack jurisdiction to redecide factual disputes, we  

can evaluate whether, assuming each dispute is resolved in  

favor of Plaintiffs, Defendants are entitled to qualified  

immunity. Construing the facts in favor of Plaintiffs, we hold  

that Officers Smith and Huntsman are not entitled to  

qualified immunity for Plaintiffs’ Fourth Amendment claim.  

We find Smith and Huntsman are entitled to qualified  

immunity for Rochelle Scott’s Fourteenth Amendment  

claim.  

STANDARD OF REVIEW 

We review the grant or denial of summary judgment on  

the ground of qualified immunity de novo. Ballou, 29 F.4th  

at 421. “Because the reasonableness standard ‘nearly always  

requires a jury to sift through disputed factual contentions . .  

. summary judgment . . . in excessive force cases should be  

granted sparingly.’” Torres v. City of Madera, 648 F.3d  

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1119, 1125 (9th Cir. 2011) (quoting Santos v. Gates, 287  

F.3d 846, 853 (9th Cir. 2002)). 

DISCUSSION 

To determine whether Smith and Huntsman are entitled  

to qualified immunity, we ask two questions. First, viewing  

the facts in the light most favorable to Plaintiffs, did Smith  

and Huntsman violate a constitutional right? Rice v.  

Morehouse, 989 F.3d 1112, 1120 (9th Cir. 2021). And  

second, if a constitutional right was violated, was it a clearly  

established right? Id. Plaintiffs assert that Smith and  

Huntsman violated both their Fourth and Fourteenth  

Amendment rights. For each claim, we answer these  

questions in turn.  

1. Fourth Amendment Claim  
2. Smith and Huntsman violated Scott’s Fourth  

Amendment rights.  

“Under the Fourth Amendment, police may use only  

such force as is objectively reasonable under the  

circumstances.” LaLonde v. County of Riverside, 204 F.3d  

947, 959 (9th Cir. 2000). To assess the objective  

reasonableness of an officer’s actions, “we consider: (1) the  

severity of the intrusion on the individual’s Fourth  

Amendment rights by evaluating the type and amount of  

force inflicted, (2) the government’s interest in the use of  

force, and (3) the balance between the gravity of the  

intrusion on the individual and the government’s need for  

that intrusion.” Rice, 989 F.3d at 1121 (quoting Lowry v. City  

of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017) (en banc)) 

(cleaned up). We must consider the totality of the  

circumstances “from the perspective of a reasonable officer  

on the scene, rather than with the 20/20 vision of hindsight.”  

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Graham v. Connor, 490 U.S. 386, 396 (1989). After  

weighing the totality of the circumstances, we find that  

Officers Smith and Huntsman violated Scott’s Fourth  

Amendment rights.  

1. The type and amount of force used.  

First, we hold that Smith and Huntsman used deadly  

force. To classify the force used, we consider the specific  

circumstances of the case. Rice, 989 F.3d at 1121. “Both the  

nature and degree of physical contact and the risk of harm  

and the actual harm experienced are relevant.” Seidner v. de  

Vries, 39 F.4th 591, 597 (9th Cir. 2022) (quoting Williamson  

1. City of National City, 23 F.4th 1146, 1152 (9th Cir. 2022)  

(cleaned up). Deadly force is force that “creates a substantial  

risk of causing death or serious bodily injury.” Smith v. City  

of Hemet, 394 F.3d 689, 706 (9th Cir. 2005). 

Huntsman used bodyweight compression on Scott’s  

back and neck during and shortly after handcuffing him.  

While Smith restrained Scott’s lower body, Huntsman kept  

his bodyweight on Scott’s back and neck for about one to  

two minutes while Scott’s pleas turned increasingly  

incoherent and breathless. Shortly after, Scott lost  

consciousness. He was declared dead after paramedics  

removed him from the scene. This was severe, deadly force. 

Our precedent establishes that the use of bodyweight  

compression on a prone individual can cause compression  

asphyxia. Drummond ex rel. Drummond v. City of Anaheim,  

343 F.3d 1052, 1056–57 (9th Cir. 2003). In Drummond, for  

example, officers “press[ed] their weight on [the plaintiff’s]  

neck and torso as he lay handcuffed on the ground.” Id. at  

1056. This force was “severe and, under the circumstances,  

capable of causing death or serious injury.” Id. Drawing all  

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reasonable inferences in Plaintiffs’ favor, a jury could find  

Smith and Huntsman’s conduct was similar deadly force. 2 

1. The government’s interest in the use of force. 

We next evaluate the government’s interests by  

considering the severity of the crime at issue, whether the  

suspect poses an immediate threat to the safety of the officers  

or others, and whether a suspect is actively resisting arrest or  

attempting to escape. Espinosa v. City and County of San  

Francisco, 598 F.3d 528, 537 (9th Cir. 2010). “These factors  

are non-exhaustive, and we examine the totality of the  

circumstances, including the availability of less intrusive  

alternatives to the force employed and whether proper  

warnings were given.” Rice, 989 F.3d at 1121–22 (citations  

omitted). The “most important” factor is whether the suspect  

posed an immediate threat. Id. at 1121 (quoting Isaveya v.  

Sacramento Sheriff’s Dep’t, 872 F.3d 938, 947 (9th Cir.  

2017)). “However, a simple statement by an officer that he  

fears for his safety or the safety of others is not enough; there  

must be objective factors to justify such a concern.” Deorle  

1. Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001). 

When weighing these factors, we also take a detainee’s  

mental illness into account. Drummond, 343 F.3d at 1058.  

“The problems posed by, and thus the tactics to be employed  

against, an unarmed, emotionally distraught individual who  

is creating a disturbance or resisting arrest are ordinarily  

different from those involved in law enforcement efforts to  

subdue an armed and dangerous criminal who has recently  

2 This comparison is further bolstered by the fact that Drummond used a  

stricter test than the one we apply today. After Drummond, we relaxed  

our definition of deadly force to encompass force that creates a  

substantial risk of serious bodily injury, rather than only a substantial  

risk of death. See Smith, 394 F.3d at 705–06. 

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committed a serious offense.” Id. (quoting Deorle, 272 F.3d  

at 1282–83). Even if “an emotionally disturbed individual is  

‘acting out’ and inviting officers to use deadly force to  

subdue him,” the government interest in using such force is  

limited “by the fact that the officers are confronted, not with  

a person who has committed a serious crime against others,  

but with a mentally ill individual.” Id. (quoting Deorle, 272  

F.3d at 1283). Thus, although there is no per se rule  

establishing different classifications of suspects, we have  

recognized that counseling, where feasible, “may provide  

the best means of ending a crisis.” Id. (quoting Deorle, 272  

F.3d at 1283). 

Here, the City’s interests were limited. First, Smith and  

Huntsman did not suspect Scott of a crime. Indeed, Scott  

called 911 because he feared he was a victim of a crime. And  

officers quickly acknowledged at the scene that he appeared  

to be suffering from mental illness.  

Second, viewing the facts in the light most favorable to  

Plaintiffs, Scott did not pose a danger to the officers or  

others. Huntsman and Smith did not receive any warning that  

Scott was dangerous or that he had threatened himself or  

others. When Smith and Huntsman arrived on the scene,  

Scott was alone in his apartment, and did not threaten  

officers when speaking through the closed door. Nor did he  

threaten his own life. After officers persuaded Scott to exit  

his apartment, he still did not threaten officers or himself.  

Scott stood against a wall as ordered and made no sudden or  

threatening gestures toward the officers.  

Defendants argue that Scott posed a threat because he  

had two weapons—a pipe and a knife. But at the scene, Scott  

immediately relinquished both objects when directed to do  

so, handing the knife to the officers with the handle out. He  

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explained openly that he was mentally ill and paranoid and  

asked the officers to put him into their patrol car. Taking the  

facts in the light most favorable to Scott, a jury could find he  

posed no threat to the officers. See Smith, 394 F.3d at 702  

(holding that, though the plaintiff was not completely  

compliant, “considering the evidence in the light most  

favorable to him, a rational jury could very well find that he  

did not, at any time, pose a danger to the officers or others”). 

Third, whether Scott was “actively resisting arrest” is  

more complicated. Scott asked Smith and Huntsman not to  

touch him, and screamed and tried to pull away from the  

officers after they pulled him to the ground. But degree  

matters. Scott did not attack the officers or anyone else, nor  

did he threaten to do so. Instead, he stood where officers  

directed him to stand and made no threatening movements.  

See id., 394 F.3d at 703 (finding it significant that the suspect  

did not attack or threaten officers although he “ignored the  

officers’ requests to remove his hands from his pajamas and  

to place them on his head”). 

Finally, construing the facts in favor of Plaintiffs, Smith  

and Huntsman ignored less intrusive alternatives to the force  

they employed. Plaintiffs’ expert opined that Smith and  

Huntsman had alternatives to bodyweight force. They could  

have used verbal de-escalation strategies, waited for the  

support of additional officers to execute a safer “team  

takedown,” or waited for EMS to execute a “soft restraint.”  

Smith and Huntsman employed none of these alternatives.  

See Rice, 989 F.3d at 1124 (“Although officers ‘need not  

avail themselves of the least intrusive means of responding  

to an exigent situation,’ their failure to consider ‘clear,  

reasonable and less intrusive alternatives’ to the force  

employed ‘militates against finding the use of force  

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reasonable.’” (quoting Glenn v. Washington County, 673  

F.3d 864, 876 (9th Cir. 2011))). 

In sum, because Scott was mentally ill, was not  

suspected of a crime, and did not present a risk to officers or  

others, the government’s interest in applying force was  

limited.  

iii. The balance of interests.  

Finally, we must balance the force used against the need  

for such force to determine whether the force used was  

“greater than is reasonable under the circumstances.”  

Espinosa, 598 F.3d at 537 (quoting Santos, 287 F.3d at 854).  

Generally, deadly force is not permissible “unless it is  

necessary to prevent escape and the officer has probable  

cause to believe that the suspect poses a significant threat of  

death or serious physical injury to the officer or others.”  

Smith, 394 F.3d at 704 (quoting Tennessee v. Garner, 471  

U.S. 1, 3 (1985)). But even non-deadly force must not to be  

deployed lightly. Drummond, 343 F.3d at 1057. Force “is  

permissible only when a strong government interest  

compels” the degree of force used. Id. (quoting Deorle, 272  

F.3d at 1280).  

We hold that Smith and Huntsman were not justified in  

using deadly force against Scott, a mentally ill person who  

was not suspected of committing a crime and presented little  

or no danger. See Garner, 471 U.S. at 8, 11 (“Where the  

suspect poses no immediate threat to the officer and no threat  

to others, the harm resulting from failing to apprehend him  

does not justify the use of deadly force to do so.”). Indeed,  

there are genuine issues of fact regarding whether any force  

was necessary. See, e.g., Young v. County of Los Angeles,  

655 F.3d 1156, 1166 (9th Cir. 2011) (officer was not  

justified in use of “significant force” against a nonviolent  

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individual suspected of a misdemeanor). The balance of  

interests here is similar to Drummond, where officers also  

used significant or deadly force on a mentally ill individual  

to detain him for a mental health hold. Drummond, 343 F.3d  

at 1059. Like Drummond, an officer pressed his “weight  

against [Scott’s] torso and neck, crushing him against the  

ground.” Id. And despite his pleas, and a lack of any apparent  

danger, they continued to detain him. Id. at 1059–60. There,  

as here, “grievous injury does not serve [the] objective” of  

taking an individual into “custody to prevent injury to  

himself” when he is not suspected of any crime. Id. at 1059.  

Viewing the facts in the light most favorable to Plaintiffs, a  

reasonable jury could thus find that the officers’ use of  

severe or deadly force was constitutionally excessive. 

1. Scott’s Fourth Amendment rights were clearly  

established at the time of the violation. 

Because we hold that Smith and Huntsman’s actions,  

taken in the light most favorable to Plaintiffs, establish a  

constitutional violation, we must next consider whether the  

law was clearly established, so that a reasonable officer  

would know the officers’ conduct was unconstitutional.  

“Conduct violates a clearly established right if the  

unlawfulness of the action in question is apparent in light of  

some pre-existing law.” Ballou, 29 F.4th at 421 (quoting  

Benavidez v. County of San Diego, 993 F.3d 1134, 1151–52  

(9th Cir. 2021) (cleaned up). There need not be a case  

“directly on point,” but “the constitutional question must be  

‘beyond debate.’” Ohlson v. Brady, 9 F.4th 1156, 1166–67  

(9th Cir. 2021) (quoting Kramer v. Cullinan, 878 F.3d 1156,  

1163 (9th Cir. 2018)).  

Our caselaw makes clear that any reasonable officer  

should have known that bodyweight force on the back of a  

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prone, unarmed person who is not suspected of a crime is  

constitutionally excessive. Long before Scott’s death, we  

clearly established that it is unconstitutional to use  

bodyweight force on the back and neck of a prone and  

unarmed individual. See Drummond, 343 F.3d at 1059. The  

law is especially clear where, as here, the officers know the  

prone individual is suffering from a mental illness and is not  

suspected of a crime. Id. In Drummond, officers “pressed  

their weight against [an individual’s] torso and neck,  

crushing him against the ground.” Id. They “maintained that  

pressure for a significant period of time” while the suspect  

was prone, handcuffed, “offered no resistance,” and  

“repeatedly told the officers that he could not breathe and  

that they were choking him.” Id. at 1054, 1063. We found  

that “[v]iewing the evidence in the light most favorable to  

[the plaintiff], . . . the officers had ‘fair warning’ that the  

force they used was constitutionally excessive even absent a  

Ninth Circuit case presenting the same set of facts.” Id. at  

1061. Indeed, we needed “no federal case directly on point  

to establish that kneeling on the back and neck of a compliant  

detainee, and pressing the weight of two officers’ bodies on  

him even after he complained that he was choking and in  

need of air violates clearly established law.” Id. at 1062. 

The similarities between this case and Drummond are  

striking. Scott was not suspected of a crime. Instead, he was  

taken into custody because of his mental health. Though they  

were presented with an individual experiencing a mental  

health crisis and presenting no obvious danger to others, 

Smith and Huntsman crushed Scott’s back and neck to  

subdue him while handcuffing him. Scott also cried out with  

increasing distress and incoherence as the officers’ force  

escalated. Reasonable officers would have known that their  

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force was not reasonable and that it created a serious risk of  

asphyxiating Scott.  

Defendants argue that Drummond does not control  

because it clearly established that the use of bodyweight  

force was excessive only on a prone and already handcuffed 

individual. But construing the events in Scott’s favor,  

officers used their bodyweight on Scott while he was  

restrained with his hands behind his back, which is the  

functional equivalent of being handcuffed. And more  

critically, the officers received fair notice that their force was  

constitutionally excessive despite the timing of the  

handcuffing. Drummond addressed a handcuffed suspect,  

but as explained above, it also opined more generally about  

the use of bodyweight force on a prone individual. See  

Drummond, 343 F.3d at 1061–62. Indeed, Drummond also  

addressed a mentally ill and distressed individual who was  

not suspected of any crime and was being taken into custody  

only for his own safety. Id. 

Moreover, as Drummond itself demonstrates, a decision  

with identical facts is not required to clearly establish that it  

is unreasonable to use deadly force when the force is totally  

unnecessary to protect officers, the public, or the suspect  

himself. See Hope v. Pelzer, 536 U.S. 730, 740 (2002)  

(There can be “notable factual distinctions between the  

precedents relied on . . . so long as the prior decisions g[i]ve  

reasonable warning that the conduct then at issue violated  

constitutional rights.” (quoting United States v. Lanier, 520  

U.S. 259, 269 (1997))). Though officers must be fairly on  

notice that their conduct was unconstitutional, defining the  

“right allegedly violated” in too much detail allows  

“officials, and future defendants, to define away all potential  

claims.” See LSO, Ltd. v. Stroh, 205 F.3d 1146, 1158 (9th  

Cir. 2000) (quoting Kelley v. Borg, 60 F.3d 664, 667 (9th  

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Cir. 1995)) (cleaned up). We have thus repeatedly applied  

Drummond as clearly established law despite some variation 

in the force presented. See, e.g., Zelaya v. Las Vegas Metro.  

Police Dep’t, 682 F. App’x 565, 567 (9th Cir. 2017) (mem.) 

(holding that although officers used bodyweight force for a  

period shorter than the officers in Drummond, Drummond 

controlled because there was a material issue of fact  

regarding whether the force was used for a “significant”  

period); Tucker v. Las Vegas Metro. Police Dep’t, 470 F.  

App’x 627, 629 (9th Cir. 2012) (mem.) (holding that  

although, unlike Drummond, the suspect resisted,  

Drummond still controlled because of the similar use of  

bodyweight force).3 We do the same here. Drummond 

clearly established that the officers’ use of force was  

constitutionally excessive.  

1. Fourteenth Amendment Claim 

Rochelle Scott alleges that Smith and Huntsman’s use of  

force also violated her Fourteenth Amendment substantive  

due process rights. We hold that Smith and Huntsman  

violated Rochelle Scott’s constitutional right to familial  

association, but because that right was not clearly  

established, Smith and Huntsman are entitled to qualified  

immunity.  

3 Our court’s recent decision in Perez v. City of Fresno, 98 F.4th 919 (9th  

Cir. 2024), does not change this analysis. There, we found the officers  

were entitled to qualified immunity because they were acting at the  

direction of a paramedic when they applied their bodyweight. Id. at 926 

(“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.” (emphasis in original)). Smith and Huntsman did  

not rely on an equivalent intervening decisionmaker here. 

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1. Smith and Huntsman violated Rochelle Scott’s  

Fourteenth Amendment rights.  

Parents and children have a substantive due process right  

to a familial relationship free from unwarranted state  

interference. Hardwick v. County of Orange, 980 F.3d 733,  

740–41 & n.9 (9th Cir. 2020). To show a violation of the  

right to familial association under the Fourteenth  

Amendment based on an officer’s use of force, a plaintiff  

must establish that an officer’s conduct “shocks the  

conscience.” Nicholson v. City of Los Angeles, 935 F.3d 685, 

692 (9th Cir. 2019) (quoting Wilkinson v. Torres, 610 F.3d  

546, 554 (9th Cir. 2010)). 

Two tests govern whether an officer’s conduct “shocks  

the conscience.” Ochoa v. City of Mesa, 26 F.4th 1050, 1056  

(9th Cir. 2022). “Which test applies turns on whether the  

officers had time to deliberate their conduct.” Id. The  

“deliberate-indifference test” applies when a situation  

“evolve[s] in a time frame that permits the officer to  

deliberate before acting.” Porter v. Osborn, 546 F.3d 1131,  

1137 (9th Cir. 2008). The more demanding “purpose-to 

harm test” applies when a situation “‘escalate[s] so quickly 

that the officer must make a snap judgment.” Id. 

To decide which test to apply, we must thus ask whether  

actual deliberation by the officer was “practical.” Porter,  

546 F.3d at 1137 (quoting Moreland v. Las Vegas Metro.  

Police Dep’t, 159 F.3d 365, 372 (9th Cir. 1998), as amended 

(Nov. 24, 1998)). But we have recognized that deliberation  

may be practical even without an extended timeline of  

events. In Nicholson, for example, an officer had time to  

deliberate when, after seeing a teenager with a toy gun, he  

jumped out of a car and fired several shots. 935 F.3d at 693– 

94. The officer’s “immediate use of force without  

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communicating with his partner, his failure to seek cover,  

and his failure to formulate a plan before acting were”  

sufficient to create a genuine dispute of fact on whether  

deliberation was practical. Id. at 693. The court thus applied  

the deliberate indifference test. Id.; cf. Wilkinson, 610 F.3d  

at 554 (distinguishing exigent circumstances by applying the  

purpose-to-harm standard where “[w]ithin a matter of  

seconds, the situation evolved from a car chase to a situation  

involving an accelerating vehicle in dangerously close  

proximity to officers on foot”). 

We hold that, viewing the facts in the light most  

favorable to Plaintiff, Smith and Huntsman had time to  

deliberate. In other words, the encounter was not escalating, 

and officers had time to consider their next steps. Over seven  

minutes passed after officers arrived on the scene before they  

had any physical contact with Scott. Indeed, the officers  

called their sergeant to ask for guidance before continuing  

the encounter. And once Scott exited his apartment, he  

moved slowly, complied with officers’ orders, and openly  

explained that he was suffering from mental illness. These  

circumstances gave the officers ample time to consider their  

conduct before acting, and the deliberate indifference  

standard applies.  

Applying the deliberate indifference standard, Smith and  

Huntsman violated Rochelle Scott’s Fourteenth Amendment  

rights. An officer acts with deliberate indifference by  

disregarding a known or obvious consequence of their  

actions. Nicholson, 935 F.3d at 693. This “entails something  

more than negligence but is satisfied by something less than  

acts or omissions for the very purpose of causing harm or  

with knowledge that harm will result.” Tatum v. Moody, 768  

F.3d 806, 821 (9th Cir. 2014) (quoting Gantt v. City of Los  

Angeles, 717 F.3d 702, 708 (9th Cir. 2013)). In Nicholson,  

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for example, an officer observed a teenager among a group  

of students in uniforms and with backpacks who appeared to  

be holding a gun pointed at the ground. 935 F.3d at 693. We  

held that, because the suspect “was not engaged in any  

threatening . . . behavior,” and was surrounded by other  

minors, the officer acted with deliberate indifference when  

he rushed toward the teens and fired his weapon at them as  

he ran. Id. 

Taking the facts in the light most favorable to Plaintiff,  

Smith and Huntsman were deliberately indifferent to the risk  

that their use of force could seriously injure or kill Scott. 

Scott presented no immediate risk to the officers before they  

initiated deadly force. And when officers took Scott to the  

ground, he cried out in distress over the course of the  

encounter. After Huntsman put his bodyweight on Scott,  

Scott’s cries were also increasingly muffled and incoherent.  

A jury could find the use of bodyweight force given these  

circumstances was deliberate indifference. Cf. Farmer v.  

Brennan, 511 U.S. 825, 842 (1994) (finding when evaluating  

deliberate indifference in an Eighth Amendment claim that  

whether an “official had the requisite knowledge of a  

substantial risk is a question of fact subject to demonstration  

in the usual ways, . . . and a factfinder may conclude that  

[the] official knew of a substantial risk from the very fact  

that the risk was obvious”).4 Thus, construing all facts and  

resolving all disputes in Rochelle Scott’s favor, Smith and  

Huntsman violated her Fourteenth Amendment rights. 

4 Defendants appear to acknowledge as much, arguing that they did not  

engage in “conscience shocking” behavior only by applying the purpose 

to-harm standard. 

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1. Rochelle Scott’s Fourteenth Amendment rights  

were not clearly established at the time of the  

violation. 

Even if a constitutional violation occurred, Smith and  

Huntsman are nevertheless entitled to qualified immunity  

unless the constitutional right was clearly established at the  

time of the officers’ conduct. Rice, 989 F.3d at 1120.  

Because no analogous case existed at the time of the events  

here, we hold that the district court erred by denying  

Defendants qualified immunity for this claim.  

We have long recognized that a child’s constitutionally  

protected interest in the companionship of a parent can be  

violated by an officer’s conscience shocking conduct. See  

Hayes v. County of San Diego, 736 F.3d 1223, 1229–30 (9th  

Cir. 2013). But clearly established law cannot be defined at  

such a “high level of generality.” White v. Pauly, 580 U.S.  

73, 79 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731,  

742 (2011)). Instead, “[f]or a right to be clearly established,  

case law must ordinarily have been earlier developed in such  

a concrete and factually defined context to make it obvious  

to all reasonable government actors, in the defendant’s place,  

that what he is doing violates federal law.” Shafer v. County  

of Santa Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017). That  

is not the case here. Although Plaintiff need not identify a  

factual twin, Plaintiff identifies no authority for finding a  

Fourteenth Amendment violation here, instead citing only a  

general statement of the rule.5 We have not identified any  

5 Although the facts underlying the claims may be the same, “Fourth  

Amendment cases . . . do not clearly establish the contours of . . .  

Fourteenth Amendment substantive due process rights.” Nicholson, 935  

F.3d at 696 & n.5. 

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such authority either. Smith and Huntsman are entitled to  

qualified immunity for this claim.  

We thus reverse the district court’s summary judgment  

denying Officers Smith and Huntsman qualified immunity  

because Rochelle Scott’s constitutional right was not clearly  

established at the time of the violation. But we now clarify  

that right going forward. See supra Section II.A. 

CONCLUSION 

We affirm the district court’s denial of qualified  

immunity to Smith and Huntsman as to the Fourth 

Amendment claim and reverse the court’s ruling as to the  

Fourteenth Amendment claim. We remand for proceedings  

consistent with this opinion. 

AFFIRMED in part, REVERSED in part, and  

REMANDED. Each party shall bear its own costs on  

appeal.